Former Harris County District Attorney Pat Lykos angered many in the criminal (in)justice establishment (including my colleague Murray Newman) when she announced that her office would not prosecute felony drug cases when the drugs seized weighed less than .01 grams.
Her decision not to prosecute these so-called "trace cases" was based on her belief that the defense should have the opportunity to have the substance re-tested by an independent lab. If the amount of dope was under .01 grams, there wasn't enough to permit a second test.
She also made the decision to combat overcrowding in the Harris County Jail. Many of these cases had to do with crack cocaine or methamphetamine residue found in a pipe. If the defendant couldn't afford to post bail, he or she would sit in the county jail until their case was resolved.
The policy also took into account the inequity of charging folks with state jail felonies for possessing a less than usable amount of dope.
Well, those days are gone now.
As expected, the new District Attorney, Mike Anderson, announced on Thursday that he was taking Ms. Lykos' policy, wadding it up and tossing it in the trash. No more pussy-footing around. No more coddling these little dopeheads. Nope. That won't cut in in the Anderson administration.
Residue in that pipe? You're going down hard. Felony conviction. Probation if you're lucky.
It makes you wonder just what Mike Anderson has been smoking. People carrying around glass pipes with dope residue aren't peddling crack and crystal. They are addicts. They have a problem. Arresting them and tossing them in jail isn't going to solve it. Treating it as a criminal problem won't solve it. Addiction is a public health issue and needs to be treated as such.
Oh, Mr. Anderson said those folks need treatment and he could see them being placed on probation where they can be monitored.
Well, if you're really concerned about their well-being, Mr. Anderson, you need to throw away the criminal (in)justice model of treating drug addiction and let the medical professionals deal with it. Using the stick of prison to force addicts to eat the carrot of treatment hasn't solved the problem and won't solve it.
State District Judge Michael McSpadden, hardly who you would consider a flaming liberal, thinks it's nuts to prosecute those cases as felonies. You might want to listen to what he has to say, Mr. Anderson. You might learn a thing or two along the way.
Mike Anderson's plan will result in more people being tagged with felony convictions and in a jail that will be busting at the seams. All those new detainees are going to have to be housed someplace and that means more contracts with other counties to house our inmates. Or maybe yet another referendum on building a new jail.
Ms. Lykos may have made some serious missteps in her four years in charge of the DA's Office, but her policy on trace cases was an instance in which she got it right. Now we'll just have to wait and see how long it takes for Mike Anderson to realize that, too.
Showing posts with label Pat Lykos. Show all posts
Showing posts with label Pat Lykos. Show all posts
Friday, January 25, 2013
Friday, January 4, 2013
RIP, DIVERT
On August 1, 2009, then-Harris County District Attorney Pat Lykos rolled out her new DWI program - DIVERT. The purpose of DIVERT was to convince first-time DWI offenders to accept an intensive probation with drug and alcohol counseling in exchange for dismissing their cases.
Of course there was one big problem - the program was an illegal attempt to get around the state's prohibition against deferred adjudication for drunk driving. In the pre-DIVERT days a defendant had a couple of choices on a drunk driving case: he could plead guilty, pay a fine and apply for an occupational license; or he could choose probation and keep his license. If a defendant stood his ground he knew there was a good chance his case would be dismissed or, if he went to trial and lost, that he'd be put on probation.
Ms. Lykos and her minions didn't like those scenarios so they dreamed up a plan in which a defendant would enter a guilty plea before the judge in exchange for being enrolled in a pre-trial intervention plan. If the defendant didn't like that option he could either choose 30 days in the county jail or a year on regular probation.
Eventually every judge but Bill Harmon in County Criminal Court at Law No. 2 went along with the scheme and suddenly no one was challenging stops and roadside exercises anymore. Fewer cases were dismissed and more folks were under the watchful eye of the county probation department.
But no more.
The incoming District Attorney, Mike Anderson, promised to do away with DIVERT upon taking office. He knew the program was illegal.
This week the DA's Office sent out e-mails to all attorneys who had clients signed up for drug and alcohol evaluations as part of their application for DIVERT announcing that no further screenings would be conducted. If you were already in a DIVERT program the DA's Office would honor its promise under Ms. Lykos but, if you were not already enrolled, forget about it.
I am glad the program is over. Prosecutors are going to have to make some difficult decisions on marginal cases involving first-time offenders once again. We will return to the days when we actually litigated traffic stops in DWI cases.
Of course there are casualties of this change. There are motorists who were charged with driving while intoxicated who were on the waiting list for their drug and alcohol screening so they could enroll in DIVERT. Through no fault of their own their appointments weren't scheduled until after January 1. They were promised they would be enrolled if they met the criteria, but now, because of the change in administration, that promise was yanked from them.
The program screwed defendants from the beginning and continues to screw them after it was tossed in that great ash bin of history. Good riddance, DIVERT.
Of course there was one big problem - the program was an illegal attempt to get around the state's prohibition against deferred adjudication for drunk driving. In the pre-DIVERT days a defendant had a couple of choices on a drunk driving case: he could plead guilty, pay a fine and apply for an occupational license; or he could choose probation and keep his license. If a defendant stood his ground he knew there was a good chance his case would be dismissed or, if he went to trial and lost, that he'd be put on probation.
Ms. Lykos and her minions didn't like those scenarios so they dreamed up a plan in which a defendant would enter a guilty plea before the judge in exchange for being enrolled in a pre-trial intervention plan. If the defendant didn't like that option he could either choose 30 days in the county jail or a year on regular probation.
Eventually every judge but Bill Harmon in County Criminal Court at Law No. 2 went along with the scheme and suddenly no one was challenging stops and roadside exercises anymore. Fewer cases were dismissed and more folks were under the watchful eye of the county probation department.
But no more.
The incoming District Attorney, Mike Anderson, promised to do away with DIVERT upon taking office. He knew the program was illegal.
This week the DA's Office sent out e-mails to all attorneys who had clients signed up for drug and alcohol evaluations as part of their application for DIVERT announcing that no further screenings would be conducted. If you were already in a DIVERT program the DA's Office would honor its promise under Ms. Lykos but, if you were not already enrolled, forget about it.
I am glad the program is over. Prosecutors are going to have to make some difficult decisions on marginal cases involving first-time offenders once again. We will return to the days when we actually litigated traffic stops in DWI cases.
Of course there are casualties of this change. There are motorists who were charged with driving while intoxicated who were on the waiting list for their drug and alcohol screening so they could enroll in DIVERT. Through no fault of their own their appointments weren't scheduled until after January 1. They were promised they would be enrolled if they met the criteria, but now, because of the change in administration, that promise was yanked from them.
The program screwed defendants from the beginning and continues to screw them after it was tossed in that great ash bin of history. Good riddance, DIVERT.
Thursday, August 30, 2012
A life spared
Anthony Pierce isn't going to die. At least not at the hands of the state's killing machine.
Mr. Pierce has been living on death row since 1978, longer than all but two of his neighbors. He was convicted of the 1977 murder of the manager of a fried chicken restaurant in Houston.
His first two convictions were both overturned as a result of problems with jury selection and two years ago the Fifth Circuit Court of Appeals ordered a new punishment hearing because Mr. Pierce was not allowed to put forth mitigation evidence at his punishment trial.
Now, rather than hold a new punishment trial, the Harris County District Attorney's Office has decided to offer Mr. Pierce life in prison. Since the punishment would be applied under the law as it existed at the time of his trial, Mr. Pierce will be eligible for parole immediately.
But why would the government finally stop trying to kill Mr. Pierce? Maybe it's because of the time the trial would take. According to Mr. Pierce's attorney, Robert Loper, jury selection alone could take a couple of weeks. The government would then have to muster its evidence and present it to the jury. Then Mr. Pierce would put forth a mitigation defense. Then there's the question of whether a jury would see blood in the water when the underlying crime took place 35 years ago. The public's appetite for revenge does cool off after a while.
In addition to the time involved, there's also the financial expense. Retrying punishment would tie up attorneys from both the DA's Office and the Public Defender's office costing the county far more money that it would to make the offer of life.
I'm sure Mike Anderson will raise a stink over the fact that Pat Lykos isn't foaming at the mouth to stick a needle in Mr. Pierce's arm. But Ms. Lykos has done the right thing. While you can criticize Ms. Lykos' management style and her dictatorial ways, one thing she has done is brought the Harris County DA's Office into the 21st century. She has done what she could to move the office past the good ol' boy days of Carol Vance and Johnny Holmes and Chuck Rosenthal. With her decision today she has shown the maturity to realize that there is no purpose in killing Anthony Pierce.
With a life sentence, there will be some degree of closure. There is no closure when the appellate and post-conviction process lasts more than three decades.
There is a small victory, however. Whenever a man or woman is taken out of the grip of the state's death apparatus, it's a victory for humanity and for decency. It's a victory for those who fight against the state's ability to kill prisoners.
For a primer in how to preserve error during jury selection, read the following opinions:
Mr. Pierce has been living on death row since 1978, longer than all but two of his neighbors. He was convicted of the 1977 murder of the manager of a fried chicken restaurant in Houston.
His first two convictions were both overturned as a result of problems with jury selection and two years ago the Fifth Circuit Court of Appeals ordered a new punishment hearing because Mr. Pierce was not allowed to put forth mitigation evidence at his punishment trial.
Now, rather than hold a new punishment trial, the Harris County District Attorney's Office has decided to offer Mr. Pierce life in prison. Since the punishment would be applied under the law as it existed at the time of his trial, Mr. Pierce will be eligible for parole immediately.
But why would the government finally stop trying to kill Mr. Pierce? Maybe it's because of the time the trial would take. According to Mr. Pierce's attorney, Robert Loper, jury selection alone could take a couple of weeks. The government would then have to muster its evidence and present it to the jury. Then Mr. Pierce would put forth a mitigation defense. Then there's the question of whether a jury would see blood in the water when the underlying crime took place 35 years ago. The public's appetite for revenge does cool off after a while.
In addition to the time involved, there's also the financial expense. Retrying punishment would tie up attorneys from both the DA's Office and the Public Defender's office costing the county far more money that it would to make the offer of life.
I'm sure Mike Anderson will raise a stink over the fact that Pat Lykos isn't foaming at the mouth to stick a needle in Mr. Pierce's arm. But Ms. Lykos has done the right thing. While you can criticize Ms. Lykos' management style and her dictatorial ways, one thing she has done is brought the Harris County DA's Office into the 21st century. She has done what she could to move the office past the good ol' boy days of Carol Vance and Johnny Holmes and Chuck Rosenthal. With her decision today she has shown the maturity to realize that there is no purpose in killing Anthony Pierce.
With a life sentence, there will be some degree of closure. There is no closure when the appellate and post-conviction process lasts more than three decades.
There is a small victory, however. Whenever a man or woman is taken out of the grip of the state's death apparatus, it's a victory for humanity and for decency. It's a victory for those who fight against the state's ability to kill prisoners.
For a primer in how to preserve error during jury selection, read the following opinions:
- Pierce v. State, 604 SW2d 185 (Tex.Crim.App. 1980)
- Pierce v. State, 696 SW2d 899 (Tex.Crim.App. 1985)
- Pierce v. State, 777 SW2d 399 (Tex.Crim.App. 1989)
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?
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?
Monday, March 26, 2012
This is a paid political announcement...
Murray, Murray, Murray.
Sometimes it appears that my colleague, and friend, Murray Newman, still wishes he were at 1201 Franklin Street infringing upon the liberty of our fellow citizens. Here of late Murray seems to be on a crusade to send Mike Anderson to the 6th floor of the Criminal (In)justice Center and to help smooth the path for more prosecutors to transfer to the judicial branch of the Harris County DA's Office (See here, here and here.)
While there is plenty to castigate Pat Lykos about, Murray is using Ms. Lykos' decision not to prosecute so-called trace cases as his ammunition. And that, quite frankly, has me just a little bit befuddled.
Why on earth would a criminal defense attorney want the state to prosecute more trace cases? Why would a criminal defense lawyer want to see more people arrested, booked into jail and forced to post bond when there isn't enough dope to retest? Why would a defense attorney want to make it easier for the state (and the judges) to line up defendants "on the chain" for mass pleas that make a mockery out of our legal system?
I get it, Murray, you really don't like Ms. Lykos. But for the election of 2008, you might still be working as an assistant district attorney. Ms. Lykos came into office and purged 1201 Franklin of as many supporters of Kelly Siegler as she could. Murray was one of the prosecutors swept up in that.
I'm sure Murray would like to see some of his friends sitting on the bench - not because there might be some undue influence - but because it's nice to see your friends and colleagues succeed. But Murray, there are more than enough black-robed prosecutors in the criminal courthouse as it is. The last thing we need are more former prosecutors without any experience on the other side of the well sitting on the bench thinking they're part of the law enforcement team.
That's the kind of crap that gives us judges who are more than willing to sit by a fax machine when the police want to run a No Refusal Weekend and wait for fill-in-the-blank affidavits to come it so they can blindly rubber stamp them in the name of public safety. It's the mentality that gives us the spectacle of the mass plea and the fiction that an attorney can adequately represent a citizen accused in the ten minutes it takes to read the police report and ask the prosecutor for time served.
I, for one, don't give a damn about who gets the cushy jobs under Pat Lykos. As far as I'm concerned, when you take a government job you take it understanding that your boss is a political figure who serves at the whim of the electorate. If Jim Leitner chose to prostitute himself out to Ms. Lykos, so be it. Hey, why a criminal defense attorney would want to be a district attorney is beyond me (and, judging by what's happened up in Montgomery County, not a very desirable situation).
Pat Lykos is a known commodity. She's willing to experiment. Some of her ideas are good (trace case policy) and others are illegal (DIVERT), but she's not afraid of innovation. Mike Anderson is campaigning to take us back to the past (sorry, Mike, been there, done that). Zack Fertitta is the wild card - the defense attorney who wants to be a prosecutor. God only knows where that will go.
The one thing I know is that my job will be the same come next January as it is now - regardless of who's sitting behind that big desk on the 6th floor.
Sometimes it appears that my colleague, and friend, Murray Newman, still wishes he were at 1201 Franklin Street infringing upon the liberty of our fellow citizens. Here of late Murray seems to be on a crusade to send Mike Anderson to the 6th floor of the Criminal (In)justice Center and to help smooth the path for more prosecutors to transfer to the judicial branch of the Harris County DA's Office (See here, here and here.)
While there is plenty to castigate Pat Lykos about, Murray is using Ms. Lykos' decision not to prosecute so-called trace cases as his ammunition. And that, quite frankly, has me just a little bit befuddled.
Why on earth would a criminal defense attorney want the state to prosecute more trace cases? Why would a criminal defense lawyer want to see more people arrested, booked into jail and forced to post bond when there isn't enough dope to retest? Why would a defense attorney want to make it easier for the state (and the judges) to line up defendants "on the chain" for mass pleas that make a mockery out of our legal system?
I get it, Murray, you really don't like Ms. Lykos. But for the election of 2008, you might still be working as an assistant district attorney. Ms. Lykos came into office and purged 1201 Franklin of as many supporters of Kelly Siegler as she could. Murray was one of the prosecutors swept up in that.
I'm sure Murray would like to see some of his friends sitting on the bench - not because there might be some undue influence - but because it's nice to see your friends and colleagues succeed. But Murray, there are more than enough black-robed prosecutors in the criminal courthouse as it is. The last thing we need are more former prosecutors without any experience on the other side of the well sitting on the bench thinking they're part of the law enforcement team.
That's the kind of crap that gives us judges who are more than willing to sit by a fax machine when the police want to run a No Refusal Weekend and wait for fill-in-the-blank affidavits to come it so they can blindly rubber stamp them in the name of public safety. It's the mentality that gives us the spectacle of the mass plea and the fiction that an attorney can adequately represent a citizen accused in the ten minutes it takes to read the police report and ask the prosecutor for time served.
I, for one, don't give a damn about who gets the cushy jobs under Pat Lykos. As far as I'm concerned, when you take a government job you take it understanding that your boss is a political figure who serves at the whim of the electorate. If Jim Leitner chose to prostitute himself out to Ms. Lykos, so be it. Hey, why a criminal defense attorney would want to be a district attorney is beyond me (and, judging by what's happened up in Montgomery County, not a very desirable situation).
Pat Lykos is a known commodity. She's willing to experiment. Some of her ideas are good (trace case policy) and others are illegal (DIVERT), but she's not afraid of innovation. Mike Anderson is campaigning to take us back to the past (sorry, Mike, been there, done that). Zack Fertitta is the wild card - the defense attorney who wants to be a prosecutor. God only knows where that will go.
The one thing I know is that my job will be the same come next January as it is now - regardless of who's sitting behind that big desk on the 6th floor.
Friday, March 9, 2012
It's still illegal
Ol' Big Jolly is happy as a clam to report that Pat Lyko's DIVERT program is doing precisely what it set out to do - reducing the number of folks who elect time served and a fine when charged with driving while intoxicated.
The idea all along was to force people to accept probation or apply to DIVERT so that the county could keep them under its thumb for a year. Any defense attorney worth his salt will tell his client that time served and a fine is a better deal than probation - the only downside is having to apply for an occupational driver's license.
Why would anyone in their right mind choose to go see a probation officer once a month, swear off alcohol for a year, do community service and pony up money every month to the county? Why when you've already done two days in jail (2-for-1, remember) and you can get out of the courthouse only owing some money?
The Lykos administration convinced 14 (maybe just 13) of the 15 misdemeanor judges to forget that the minimum sentence for a first-time DWI is three days in jail and up that to 30 days. By agreeing not to consider the full range of punishment, these judges coerced defendants into applying for DIVERT or taking probation if they couldn't qualify.
And yes, Big Jolly, DIVERT is illegal. And, as a self-professed conservative, I would think that would mean something to you. But then, it's best not to allow logic or integrity into the political process - it will only cause one's head to explode. The state legislature said no deferred adjudication for driving while intoxicated. None.
And that's exactly what DIVERT is. When a defendant applies for the program and is accepted, that defendant must appear before the judge and enter a plea of guilty. The judge then defers a finding of guilty until such time as the defendant has completed the program.
That's deferred adjudication. And that's not allowed for driving while intoxicated.
Now there's a school of thought that the DPS won't object to any petitions for expunction because no one else will and because they don't want to cause havoc in Harris County. That remains to be seen. And, regardless of whether or not the DPS objects, the program is still illegal and it has tainted the criminal (in)justice system in Harris County.
H/T Grits for Breakfast
The idea all along was to force people to accept probation or apply to DIVERT so that the county could keep them under its thumb for a year. Any defense attorney worth his salt will tell his client that time served and a fine is a better deal than probation - the only downside is having to apply for an occupational driver's license.
Why would anyone in their right mind choose to go see a probation officer once a month, swear off alcohol for a year, do community service and pony up money every month to the county? Why when you've already done two days in jail (2-for-1, remember) and you can get out of the courthouse only owing some money?
The Lykos administration convinced 14 (maybe just 13) of the 15 misdemeanor judges to forget that the minimum sentence for a first-time DWI is three days in jail and up that to 30 days. By agreeing not to consider the full range of punishment, these judges coerced defendants into applying for DIVERT or taking probation if they couldn't qualify.
And yes, Big Jolly, DIVERT is illegal. And, as a self-professed conservative, I would think that would mean something to you. But then, it's best not to allow logic or integrity into the political process - it will only cause one's head to explode. The state legislature said no deferred adjudication for driving while intoxicated. None.
And that's exactly what DIVERT is. When a defendant applies for the program and is accepted, that defendant must appear before the judge and enter a plea of guilty. The judge then defers a finding of guilty until such time as the defendant has completed the program.
That's deferred adjudication. And that's not allowed for driving while intoxicated.
Now there's a school of thought that the DPS won't object to any petitions for expunction because no one else will and because they don't want to cause havoc in Harris County. That remains to be seen. And, regardless of whether or not the DPS objects, the program is still illegal and it has tainted the criminal (in)justice system in Harris County.
H/T Grits for Breakfast
Sunday, March 4, 2012
What could possibly go wrong?
With the state's primary finally be set on May 29, I can only wonder what new problems could befall beleaguered Harris County District Attorney Pat Lykos.
You see that's nearly three months for the remaining wheels to fall off the cart. Or for the mule to break its leg. Or for the axle to snap.
Or for another grand jury to investigate the office. It's certainly enough time for an indictment. Another trip to 1201 Franklin by the Texas Rangers? A disgruntled former employee going to the press with damning information? Ms. Lykos could tempt fate by holding another press conference.
Suggestions?
You see that's nearly three months for the remaining wheels to fall off the cart. Or for the mule to break its leg. Or for the axle to snap.
Or for another grand jury to investigate the office. It's certainly enough time for an indictment. Another trip to 1201 Franklin by the Texas Rangers? A disgruntled former employee going to the press with damning information? Ms. Lykos could tempt fate by holding another press conference.
Suggestions?
Thursday, February 16, 2012
Trying to keep your story straight
It can be so damned hard to get those stories straight sometimes. Fudging a little bit here, leaving out something over there and then having to remember all that when asked to recount what happened.
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
I didn't know about any investigation of the grand jurors.
I authorized an investigation of the grand jurors.
Actually it was just a quick internet search [on county computers].
Should there be an investigation [by the Texas Rangers] we will cooperate.
I asked the Texas Rangers to look into the allegations myself.Okay, Ms. Lykos, which is it?
First you claimed that you knew nothing about any investigation into the backgrounds of the grand jurors investigating your office in the BATmobile mess. Then, after being exposed, you claim that it was just a cursory search of social media sites.
Then, after a scathing letter from the grand jury aimed at your office, we find out the Texas Rangers were nosing around 1201 Franklin asking questions. Three days later you claimed to have called in the Rangers to look into the allegations against you. And now the Rangers are seizing computers and copies of interviews you gave regarding the investigation.
Ms. Lykos would have been better served by just letting the office take its lumps for any Brady violations committed regarding evidence of the unreliability of the breath test machines in the BATmobiles. Sure, you might have had to dismiss a few DWI cases here and there - but then it would be over. The whole matter would be forgotten by the time the primary election rolled around.
But no, that just wouldn't do. You had to try to cover it all up. Then, when the grand jury decided to look into your office you threw up the shield. You asked your investigator to look into the backgrounds of the members of the grand jury (and the judge and her husband). Now the Rangers are looking into exactly what went on and who did what. Definitely not good times.
Once upon a time there was a president who got caught with his hand in the cookie jar when some burglars were caught in the headquarters of the opposition party. Instead of just 'fessing up and taking the heat up front he decided to try to cover it all up. He erased tapes. He tried to intimidate others. In the end he became the first sitting president to step down during his term.
Nixon wasn't disgraced because of his role in the break-in; he was disgraced because of his attempt to cover up his involvement in the matter.
With two grand jury investigations and now the Texas Rangers snooping around the tea leaves at the bottom of the cup aren't looking too good for Ms. Lykos.
Wednesday, February 8, 2012
When the fit hits the shan
Might Harris County District Attorney Pat Lykos want to change her story about the little internet search she had an investigator run on members of the grand jury looking into the BATmobile fiasco?
Because, if she was so inclined, now would be the time.
It appears her snooping around has attracted the attention of the Texas Rangers and the FBI. Using county resources to conduct background checks on grand jurors? Hmm, doesn't seem like such a good idea now, does it?
I might be going out on a limb here, but I think Ms. Lykos has set a new record for the number of investigations into a district attorney's office in Harris County. With news that the Rangers and FBI agents were interviewing staff members of the DA's Office, Ms. Lykos might want to take a trip in Mr. Peabody's Wayback Machine and change her management style from the day she took over the 6th floor at 1201 Franklin.
Leading by fear might get people to do what you want them to - but it certainly won't engender loyalty. The really juicy stuff always comes from the "disgruntled" staffer.
I would imagine that a lower-level staffer might have less incentive to keep quiet than a higher paid prosecutor. And while grand juries might give Ms. Lykos and her office the benefit of the doubt, I'm not thinking the FBI would take the same attitude.
Things just got a bit more interesting.
Friday, February 3, 2012
Runaway grand jury: The aftermath
Not content to sit down while the grand jury investigated the doings-on in her office, Harris County District Attorney Pat Lykos decided to arrange her own investigation. Of the grand jury.
According to the Houston Chronicle, Ms. Lykos ordered investigations into the grand jurors, two judges (Marc and Susan Brown) and Mike Anderson, her opponent in the GOP primary. According to Ms. Lykos, it was a "cursory internet search."
Locked in her shell up on the sixth floor of the Criminal (In)justice Center, Ms. Lykos has apparently lost touch with all semblance of reality as she just can't understand what the problem is.
Just how would it go over if it turned out a defense attorney was conducting an investigation into the backgrounds of the grand jurors? Would Ms. Lykos and her minions have such a relaxed attitude if that were the case? I think not.
Poor Jim. He had the audacity to run against Ms. Lykos in the 2008 Republican primary and, after finishing third in a three horse race, swallowed his pride and went to work for Ms. Lykos. His reward for his loyalty to Ms. Paranoid are the tire marks on his back.
Now here's where it gets interesting. Jack Abercia, the former constable for Precinct One, got himself indicted because either he used, or allowed someone in his office to use, a website available only to law enforcement agencies to run background checks on people. Did Mr. McWilliams' "cursory internet investigation" involve the use of such a website or did he just google the names?
These revelations raise serious concerns about the ability of Pat Lykos to serve as Harris County District Attorney. While her actions may or may not have been legal, they certainly add to the stench emanating from 1201 Franklin. A grand jury is supposed (and I stress the word "supposed") to be an independent body determining whether or not there is probable cause to believe someone committed a criminal act. What message does it send to grand jurors when the sitting District Attorney is using her office to investigate members of a grand jury while it conducts an investigation?
And what was the purpose of the investigation - to intimidate or to blackmail? Ms. Lykos and her minions have some serious questions to answer. But don't hold your breath waiting to her them.
According to the Houston Chronicle, Ms. Lykos ordered investigations into the grand jurors, two judges (Marc and Susan Brown) and Mike Anderson, her opponent in the GOP primary. According to Ms. Lykos, it was a "cursory internet search."
Locked in her shell up on the sixth floor of the Criminal (In)justice Center, Ms. Lykos has apparently lost touch with all semblance of reality as she just can't understand what the problem is.
Just how would it go over if it turned out a defense attorney was conducting an investigation into the backgrounds of the grand jurors? Would Ms. Lykos and her minions have such a relaxed attitude if that were the case? I think not.
"The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury's radical, erratic and what we believed to be unlawful action." -- Pat LykosOf course rule number one when you get caught in a bad situation is to minimize it. Rule number two is to shift the blame. The unspoken rule is to avoid any responsibility for your actions. And don't forget the corollary, when in doubt, throw someone else under the bus.
Lykos said she relied on assertions from Don McWilliams, her chief investigator, that there was no "investigation."
However, according to three sources familiar with the situation, McWilliams was asked by the district attorney's first assistant, Jim Leitner, to "investigate" at least two grand jurors "for the boss." The sources did not want to be identified because they were not authorized to discuss the situation.
Poor Jim. He had the audacity to run against Ms. Lykos in the 2008 Republican primary and, after finishing third in a three horse race, swallowed his pride and went to work for Ms. Lykos. His reward for his loyalty to Ms. Paranoid are the tire marks on his back.
Now here's where it gets interesting. Jack Abercia, the former constable for Precinct One, got himself indicted because either he used, or allowed someone in his office to use, a website available only to law enforcement agencies to run background checks on people. Did Mr. McWilliams' "cursory internet investigation" involve the use of such a website or did he just google the names?
McWilliams went to his courthouse office and used two websites that collect personal information for use by law enforcement and others, according to the sources. He called Lykos with his results and left a voicemail.
A week later, Leitner directed McWilliams to expand the investigation to state District Judge Susan Brown, her husband who also is a judge and Mike Anderson, a former judge who is running against Lykos in the Republican primary, according to the sources.
On Thursday, Lykos said confidential law enforcement databases used by authorities to check criminal records were not used. It is illegal to use those websites for unauthorized investigations.
These revelations raise serious concerns about the ability of Pat Lykos to serve as Harris County District Attorney. While her actions may or may not have been legal, they certainly add to the stench emanating from 1201 Franklin. A grand jury is supposed (and I stress the word "supposed") to be an independent body determining whether or not there is probable cause to believe someone committed a criminal act. What message does it send to grand jurors when the sitting District Attorney is using her office to investigate members of a grand jury while it conducts an investigation?
And what was the purpose of the investigation - to intimidate or to blackmail? Ms. Lykos and her minions have some serious questions to answer. But don't hold your breath waiting to her them.
Wednesday, February 1, 2012
Graffiti, courthouse style
Handiwork of an unknown artist on the 2nd floor of the Harris County Criminal (In)justice Center.
Runaway grand jury closes up shop
Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.
Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.
What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?
Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.
Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.
I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.
As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.
So, go on, there's nothing to see here.
Friday, January 6, 2012
Crisis? What crisis?
Yesterday my colleague Murray Newman serenaded us with word that there was a serious shortage of grand juries in Harris County because Pat Lykos and her minions dropped the ball.
Murray seemed quite concerned that someone the lack of indictments make cause the sun not to rise or cause solar flares or even cause the hole in the ozone layer to get bigger.
My response? So freaking what?
So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?
We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.
Murray seemed quite concerned that someone the lack of indictments make cause the sun not to rise or cause solar flares or even cause the hole in the ozone layer to get bigger.
My response? So freaking what?
So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?
We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.
Wednesday, December 21, 2011
A demotion
Now, lest anyone think I'm biased with regard to the unmitigated disaster known as the HPD breath alcohol testing van (BAT van) program, I am now giving the Harris County District Attorney's Office a little equal time.
This is a statement from the DA's Office dated November 8, 2011 addressing concerns raised about the program:
To the citizens of Harris County,The "technician" referred to is Amanda Culbertson, the former technical supervisor in the HPD crime lab. The statement from Ms. Lykos' office is an interesting exercise in the use of language. Ms. Culbertson is a technician, but the DPS personnel who conducted tests on the breath test machines are scientists.
As many of you know, there have been several news stories regarding the Houston Police Department’s Breath Alcohol Testing (BAT) vans, the evidence they provide, the technicians who perform the work and the Harris County District Attorney’s Office (HCDAO).
A technician, who is a former employee of the HPD crime lab and supervised the BAT van testing, testified on July 27 and 28 that she believed it is possible that the breath tests conducted by the HPD BAT vans could be problematic.
August 4, representatives of the HCDAO notified the Scientific Director at the Texas Department of Public Safety—the authority that develops rules and regulations and provides training and laboratory support to local, state and federal authorities for breath alcohol testing throughout the state—of her claims.
August 11, in a meeting between HCDAO and the technician she stated that she could not verify the accuracy of results of an intoxilyzer instrument that had previously experienced overheating in a HPD BAT van. She said that she could not testify to the accuracy of such intoxilyzer results because this issue had never before been scientifically tested.
August 12, the HCDAO issued a Brady Notice to attorneys to inform them of the potentially exculpatory, or mitigating, evidence raised by the technician and to not allow any HPD BAT van cases to be resolved unless the defendant is made aware of the technician’s comments.
Additionally on August 12, the Harris County District Attorney’s Office requested that the Texas Department of Public Safety’s Breath Alcohol Laboratory conduct scientific tests on the HPD BAT van and the intoxilyzer instruments.
August 23, representatives from the Harris County District Attorney’s Office met again with the technician. At this interview the technician said she believed that all breath tests conducted by the HPD BAT vans dating from summer 2009 - present were suspect because she believed HPD BAT vans were an unsuitable testing location. August 24, the HCDAO distributed a second Brady notice to attorneys alerting them to the technician’s comments.
The Texas Department of Public Safety conducted an Ambient Temperature Study on the HPD BAT van and intoxilyzer instruments that addressed the technician’s concerns. Scientists concluded that the HPD BAT van instruments correctly analyzed breath alcohol concentrations .
October 28, a DWI jury trial was held in a County Criminal Court where evidence was presented in open court about the reliability and accuracy of the HPD BAT vans. The defense presented their position on the reliability of the HPD BAT van instruments. After hearing all the evidence, the jury returned a verdict of guilty.
It is our duty to see that justice is done and to protect the lives, property and rights of our citizens. We respect the rule of law and strive to always do the right thing.
However, prior to Ms. Culbertson's leaving the crime lab, prosecutors delighted in touting Ms. Culbertson's professional qualifications. She was the scientist in charge of maintaining the machines. According to the Texas Department of Public Safety, she was a forensic scientist. Before a breath test result could be entered into evidence, Ms. Culbertson had to testify that the machine was working properly and that it was reliable.
Now that she's raising concerns over the reliability of the testing program she is a mere technician. According to the Collins English Dictionary, a technician is "a person employed in a laboratory... or scientific establishment to do practical work." In other words, a mere button pusher.
So, in recent weeks we've been told that HPD isn't trustworthy and that the person who maintains the breath test machines is doing "practical" work. Any more gems for us, Ms. Lykos?
Wednesday, December 14, 2011
Grand jury subpoenas top county officials in DWI probe
Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.
First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.
Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.
The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.
Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.
Wednesday, December 7, 2011
The cost of thinking outside the box
I'm no fan of Pat Lykos.
Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.
But there are a couple of areas in which Ms. Lykos got it right.
Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.
Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.
No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.
Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?
Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.
Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.
Her job is to infringe upon the rights of the citizenry as zealously as the courts will allow. She is part of the mechanism by which the state seeks to keep folks under its thumb.
But there are a couple of areas in which Ms. Lykos got it right.
Now, with apologies to my colleague, Murray Newman, I don't mind the chaos emanating from the 6th floor of the Criminal (In)justice Center. Chaos in the prosecutor's office is a good thing for the citizens of Harris County. So long as prosecutors are fighting with one another, with the District Attorney and with law enforcement, they aren't waging total war against our clients.
Ms. Lykos was right when she changed her office's policy on drug residue cases. Let's face it, the war on drugs has been a colossal failure (it makes Vietnam seem like a good idea). Even State District Judge Michael McSpadden acknowledges its failure.
"No one respects law enforcement more than I do, but they're wrong about this. I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs." - State District Judge Michael McSpaddenThere are far too many folks in the Harris County Jail on possession cases. There are far too many folks in the penitentiary on possession cases. Most of these people are addicts. Locking them up in jail does no one any good. The addicts aren't receiving the treatment they need and there's no room in the inn for those who really need to be put away.
No, local law enforcement doesn't like the policy. They want to go out and arrest everyone they possibly can, lock 'em up and forget about them. That's fine and dandy - but where are you going to put them? Maybe it's the fear that with fewer drug arrest, jobs and overtime might vanish. Maybe it's the fear that the public is fed up with the overcriminalization of American life and desires a bit of sanity.
Ms. Lykos also understands that the stigma associated with a DWI conviction is a little bit out of whack when compared to the consequences befalling those convicted of some violent crimes. DIVERT may have been a good concept but the execution is poor (not to mention illegal). The reason given by the DA's Office for DIVERT is so that folks arrested for driving while intoxicated can get treatment to help prevent them from doing it again. The reality is that Ms. Lykos thought that too many people were "getting off" with time served and a fine. What better way to force them into probation than to make the minimum sentence 30 days in jail?
Need I even mention that the judges who signed off on the program are violating their constitutional duty to consider the full range of punishment in a DWI case? But, then, most of those on the bench are part of the DA's "trial court" division.
Sometimes change comes from the most unexpected agents. Just as it took Nixon to open China, maybe it took Lykos to bring some sense to drug prosecutions.
Wednesday, November 30, 2011
Surprise! Surprise! Surprise!
What a shock. The day after the local police unions announce they will not endorse current Harris County DA Pat Lykos in the upcoming election, former judge Mike Anderson announces his entry in the race.
Let the games begin...
Monday, November 7, 2011
Judge punts show cause hearing
Today was the day and I was determined not to be denied. Assistant District Attorneys Carl Hobbs and Steve Morris were to appear in the 185th this morning for a show-cause hearing to determine whether they should be held in contempt of court for allegedly violating Judge Susan Brown's order that the Harris County District Attorney's Office be denied access to the grand jury investigating HPD's batmobile fiasco.
I dropped my youngest daughter at school in plenty of time to get downtown. But, when I walked into the Harris County Criminal (In)justice Center, the lines at the elevators were beyond ridiculous. I knew what had to be done. It was off to the stairwell.
For those of y'all not familiar with the courthouse, the 185th District Court is on the 17th floor. Yes, the 17th floor. And I was hoofing it up the stairs.
With every step my body reminded me of the 14 mile run on Sunday morning and the soccer game that afternoon. My body was not very happy. But there I was - on the 17th floor. It was around the corner and down the hall and into the courtroom. The place was packed.
The judge called the docket and we sat in anticipation of what was to come. She called up the attorneys representing Mr. Hobbs, Mr. Morris and the two court reporters. With a gaggle of attorneys wearing dark suits crowded around the bench, I could have sworn I was in the civil courthouse.
The attorney for the court reporters filed a motion to recuse Judge Brown. That seemed to halt the proceedings (at least for the time being). However, Mr. Hobbs' attorney, Bill Hawkins, made it known that his client was ready to proceed. I left the courtroom to take care of some other business.
I returned about 30 minutes later and saw the same cast of characters in the courtroom. But there was one new addition -- my colleague, and fellow blogger, Murray Newman. After his perfunctory insult of my choice of neck wear, we began to discuss what was going on. It seems that there were quite a few conferences at the bench with the defense attorneys and the judge -- the attorneys appointed to represent the state never bothered to approach.
Word went out that the fireworks would begin at 11am. This did not sit well with me since I had only paid for parking til 11am. Oh well, if a parking ticket was the cost of this exercise, it was probably worth it (so long as I don't have too many unpaid parking tickets, I suppose).
Shortly before 11am the defense attorneys once again approached the judge and, the longer the conversation went on, the more animated the judge became. Something was a-brewing and Judge Brown wasn't a happy camper. Neither, it did appear, was Mr. Hawkins. There appeared to be some dissension in the ranks.
Shortly after 11am, Judge Brown went on the record. Mr. Morris' attorney asked that the proceedings be public and not at the bench. Judge Brown then announced that, based on the motion to recuse filed by Mr. Morris' attorney, that she was recusing herself. Mr. Hawkins was not pleased.
So, what was accomplished this morning? Not a whole lot. A small forest was destroyed to make enough paper for all of the motions that were filed. The judge recused herself (Murray was right on the money with his prediction). An interesting subtext was disclosed.
Why would Mr. Hobbs' attorney want to proceed on the show cause hearing? Why not delay it for a few more days and take it up in front of another judge? Could it be that someone is ready to roll? From my dealings with Mr. Hobbs and from the accounts I have heard from other defense attorneys, Mr. Hobbs is a by-the-book guy. I find it hard to believe that he would go to the court reporters and ask for a transcript of the testimony after a judge told the DA's Office that it was not entitled to access to the grand jury. Did someone order Mr. Hobbs to obtain that transcript? Was he following orders?
Someone is going to take a fall for this. The only question is whom.
I dropped my youngest daughter at school in plenty of time to get downtown. But, when I walked into the Harris County Criminal (In)justice Center, the lines at the elevators were beyond ridiculous. I knew what had to be done. It was off to the stairwell.
For those of y'all not familiar with the courthouse, the 185th District Court is on the 17th floor. Yes, the 17th floor. And I was hoofing it up the stairs.
With every step my body reminded me of the 14 mile run on Sunday morning and the soccer game that afternoon. My body was not very happy. But there I was - on the 17th floor. It was around the corner and down the hall and into the courtroom. The place was packed.
The judge called the docket and we sat in anticipation of what was to come. She called up the attorneys representing Mr. Hobbs, Mr. Morris and the two court reporters. With a gaggle of attorneys wearing dark suits crowded around the bench, I could have sworn I was in the civil courthouse.
The attorney for the court reporters filed a motion to recuse Judge Brown. That seemed to halt the proceedings (at least for the time being). However, Mr. Hobbs' attorney, Bill Hawkins, made it known that his client was ready to proceed. I left the courtroom to take care of some other business.
I returned about 30 minutes later and saw the same cast of characters in the courtroom. But there was one new addition -- my colleague, and fellow blogger, Murray Newman. After his perfunctory insult of my choice of neck wear, we began to discuss what was going on. It seems that there were quite a few conferences at the bench with the defense attorneys and the judge -- the attorneys appointed to represent the state never bothered to approach.
Word went out that the fireworks would begin at 11am. This did not sit well with me since I had only paid for parking til 11am. Oh well, if a parking ticket was the cost of this exercise, it was probably worth it (so long as I don't have too many unpaid parking tickets, I suppose).
Shortly before 11am the defense attorneys once again approached the judge and, the longer the conversation went on, the more animated the judge became. Something was a-brewing and Judge Brown wasn't a happy camper. Neither, it did appear, was Mr. Hawkins. There appeared to be some dissension in the ranks.
Shortly after 11am, Judge Brown went on the record. Mr. Morris' attorney asked that the proceedings be public and not at the bench. Judge Brown then announced that, based on the motion to recuse filed by Mr. Morris' attorney, that she was recusing herself. Mr. Hawkins was not pleased.
So, what was accomplished this morning? Not a whole lot. A small forest was destroyed to make enough paper for all of the motions that were filed. The judge recused herself (Murray was right on the money with his prediction). An interesting subtext was disclosed.
Why would Mr. Hobbs' attorney want to proceed on the show cause hearing? Why not delay it for a few more days and take it up in front of another judge? Could it be that someone is ready to roll? From my dealings with Mr. Hobbs and from the accounts I have heard from other defense attorneys, Mr. Hobbs is a by-the-book guy. I find it hard to believe that he would go to the court reporters and ask for a transcript of the testimony after a judge told the DA's Office that it was not entitled to access to the grand jury. Did someone order Mr. Hobbs to obtain that transcript? Was he following orders?
Someone is going to take a fall for this. The only question is whom.
Saturday, November 5, 2011
Harris County's runaway grand jury: a blawgosphere summary
On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.
Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:
"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)
"The BAT van show-cause order," Defending People (Nov. 2, 2011)
"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)
"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)
"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)
"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)
"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)
"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)
"What you say can be used..." Sustained (Oct. 27, 2011)
"The plot thickens," The Defense Rests (Oct. 26, 2011)
"A rat in a trap," The Defense Rests (Oct. 26, 2011)
"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)
"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)
"Runaway jury," The Defense Rests (Oct. 24, 2011)
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:
"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)
"The BAT van show-cause order," Defending People (Nov. 2, 2011)
"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)
"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)
"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)
"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)
"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)
"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)
"What you say can be used..." Sustained (Oct. 27, 2011)
"The plot thickens," The Defense Rests (Oct. 26, 2011)
"A rat in a trap," The Defense Rests (Oct. 26, 2011)
"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)
"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)
"Runaway jury," The Defense Rests (Oct. 24, 2011)
"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)
Wednesday, November 2, 2011
Judge calls top prosecutors on the carpet
Oh, what tangled webs we weave...
As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.
It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.
Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.
Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.
What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?
Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...
As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.
It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.
Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.
Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.
13 Undercover first exposed maintenance problems with the BAT vans that could have led to bad test results. The DA now says the breath tests are sound. The grand jury is trying to figure out when did the DA First hear about the problems and did they speak up about it as the law requires.But then there's the curve ball. According to this story from KTRK-13, the breath tests in question are suddenly valid again. But wait, you ask, wasn't it just last week that Ms. Lykos said she couldn't trust HPD when it came to breath tests conducted in the batmobiles?
What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?
Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...
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