Consequences, what consequences?

Alfred Brown spent a decade of his life on death row in Texas before he was exonerated by phone records found in a detective's garage in 2013. What makes this tale more chilling is the fact that the prosecutor who sought the death penalty in Mr. Brown's 2005 trial for the murder of Houston Police Officer Charles Clark and store clerk Alfredia Jones was made aware of the phone records prior to trial.

The prosecutor, Dan Rizzo, is now retired.

In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.

After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.

The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.

The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.

Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.

The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.

Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.

Well, let's look at that for a bit, shall we?

According to Section 19.02(b) of the Texas Penal Code, the murder statute:

(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The death certificate of an executed inmate lists homicide as the manner of death. That is murder.

Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."

According to Section 15.01 of the Texas Penal Code:

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.

As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.

Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...

Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:

   Rizzo-3-12-18 by Paul B. Kennedy on Scribd

It's a trifecta!

Harris County DA Devon Anderson may truly be the gift that never stops giving. In addition to the dumpster fire which is Precinct 4, in addition to the state's "expert" witness, Dr. Fessessework Guale, now we have Devon Anderson's Facebook ad for her re-election campaign.




Well I guess, based on the message, that someone informed Devon Anderson that what she did put a judge in a bad position. But why anyone had to point that out to her I don't know because Devon Anderson used to be a judge - up until Barack Obama's election, that is. She should be familiar with the Texas Code of Judicial Conduct which makes this little episode all the more troubling.

I tried to download the video yesterday before it was taken down but I was, apparently, unsuccessful. I am bothered by the fact that Devon Anderson deliberately put a judge in a position that violated the canons of conduct. And I don't care whether or not Devon Anderson is the person who maintains the Facebook page and posts videos and such. The page has her name on it and she is ultimately responsible for the content on the page.

I wish I had made a screen print at the time so I could at least post the photo - but life is full of shoulda, woulda, coulda moments.

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

  Dr. Fessessework Guale Statement of Qualifications by Paul B. Kennedy on Scribd

Stepping in it

Oh what a mess Harris County DA Devon Anderson has found herself in. As has been reported in local media outlets, over the last nine years some 21,000 pieces of evidence were destroyed in Harris County Precinct 4. All of the evidence was supposedly destroyed by one deputy - Christopher Hess - who has since been fired.

But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.

Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.

Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.

But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.

Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?

There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?

If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.

Ms. Anderson and her minions have shown they cannot be trusted.

Stop me if you've heard this before...

It seems that no matter how hard it tries, the Houston Police Department Crime Lab just can't keep itself out of the news. Peter Lentz worked as an analyst at the crime lab from 2012 until earlier this year when he resigned - after he was caught lying, using improper procedures and tampering with a government document.

Oops.

In every case in which an analyst testifies - from DWI cases to capital murder cases - the testimony reveals that the crime lab was certified by ASCLD and by the Texas Department of Public Safety. This testimony is supposed to convince jurors that the test results are accurate. Yet somehow the parade of problems continues.

Mr. Lentz worked on 185 cases, including 51 capital murder cases. The Harris County District Attorney's Office did send out a letter notifying defense attorneys about the issue after it arose as they should. In many of these cases there is still material that can be retested. However, the fact that Mr. Lentz was able to do what he did as long as he did it should raise serious questions about oversight at the HPD Crime Lab.

If the lab can pass its annual audits year after year but we still have problems with analysts making shit up, then there is something wrong with the audit process. Too much of the audit consists of a supervisor reviewing a file and signing off on the test results if all the paperwork is in order. There is no random retesting of material.

The list of past sins at the crime lab is well known in criminal defense circles. The lab has undergone numerous re-openings, re-toolings and re-marketing campaigns over the years. Nothing works. The culture at the crime lab is still - and seemingly always will be - to produce the best possible evidence for the government.

Because the mission of the crime lab is to assist the government in prosecuting cases, lab managers will never probe into the actual testing of material. What purpose would that serve? So long as the test results that come from 1201 Travis help prosecutors obtain convictions there is no reason for managers to do more oversight into the lab's operations.

While the misdeeds of Mr. Lentz only directly affect those cases on which he worked, the stench should cover each and every test result that comes from the HPD Crime Lab. When a culture is so ingrained in an institution that we keep coming across these stories year after year, that culture affects everyone who works in the crime lab.

As a postscript to the story, the Harris County District Attorney's Office presented evidence of Mr. Lentz' misdeeds to a grand jury that declined to indict the former analyst. My question is why was Devon Anderson's office allowed to present that case to the grand jury when almost every test conducted in the HPD Crime Lab (if not every test) is produced for the DA's Office?

There is a clear conflict of interest in allowing the Harris County DA's Office to investigate this matter. Ms. Anderson's office has an incentive not to prosecute Mr. Lentz as such a prosecution could put into question every test conducted at the HPD Crime Lab. By sweeping the matter under the rug, the DA's Office can pretend that Mr. Lentz was a "lone wolf" and that his actions aren't an indictment on the entire crime lab.

Let's play cowboys and vampires

March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.

It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.

For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.

If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.

Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.

The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?

The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.

And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.

Just be careful out there.

Passing along the costs of blood testing

As if the costs associated with a DWI arrest aren't high enough, prosecutors with the Harris County District Attorney's Office are working on a plan to charge defendants with the cost of drawing, storing and analyzing their blood samples. As the number of blood tests in DWI cases has skyrocketed in the past few years, area crime labs are being overwhelmed with the kits.

Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.

But why are there so many blood tests?

If you guessed "No Refusal Weekends" you are correct.

In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.

The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.

Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.

Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.

No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.

If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.

Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.

H/T Grits for Breakfast

Class dismissed

Talk about your sophisticated ways of poisoning jury pools and public opinion. The Harris County District Attorney's Office found the perfect tool to make Harris County even more prosecution-friendly.

According to a PR memo released by the DA's office, Harris County prosecutors have been spreading propaganda "teaching" students at Strake Jesuit High School about criminal procedure over the past five weeks.

I'm sure there was plenty of talk about technicalities and court decisions that have hampered the ability of the police to do whatever the hell they want to do. Sure, there's a justification for gutting the Fourth Amendment's protections against unreasonable search and seizures - it's really important that we catch the bad guys and, well, sometimes that requires us to do some things that, under ordinary circumstances, we shouldn't do.

I doubt there was any mention of how Harris County systematically violates a defendant's right to counsel at crucial stages of a prosecution. I mean, why on earth would a defendant need to consult with an attorney before a magistrate judge fills in the blank on the arraignment form with the bond listed in the county's bond schedule?

I would guess that somehow the prosecutors assigned to the propaganda division forgot to inform the students about the abuses heaped on defendants from judges intent on clearing their dockets via mass plea. Oppressive and punitive bond conditions? Doesn't happen. Threatening to revoke the bonds of defendants who come to court without attorneys? A very rare occurrence.

And there is no need to talk about prosecutors hiding the sausage and ignoring Brady now that the Michael Morton Act is about to go into effect. We've got extensive checklists now so that the burden can be shifted onto defense attorneys when exculpatory evidence isn't handed over. I wonder if they broached the subject of junk science being deemed admissible if it was beneficial to the prosecution? Probably not.

If the purpose of this exercise had been to teach high school students about criminal procedure and how the criminal (in)justice system works, there should have been criminal defense lawyers involved. Allowing students to hear one side of the equation while acting like they're getting the whole story is a travesty and has no place in our education system.

Doing so allows the state to continue to equate constitutional protections with "technicalities." There is a reason behind the protections of the Third, Fourth, Fifth and Sixth Amendments. Ignoring the reason behind those protections is a disservice to our youth - and our society.

I'm certain that no one told the students that the defendant is entitled to a vigorous defense and that the job of the criminal defense lawyer is to hold the state to its burden of proof. It is the job of a defense attorney to ensure that his client's constitutional protections aren't violated. It is the job of the defense attorney to question every piece of evidence and to challenge the state to prove its case beyond all reasonable doubt. It is our job to stand beside people that no one else will and fight to defend their liberty.

We don't deal in technicalities. We deal in quanta of proof. When it comes down to it, the defense lawyer is the only person standing between his client and the power of the state.

H/T Grits for Breakfast

288 and counting...

The Houston Police Department is on a 288-0 win streak. There have been 288 officer shootings without a single indictment since Arthur Charbonneau shot an unarmed teenager to death in a closet back in 2004.

From 2008 to 2012 there were over a hundred officer shootings - and a quarter of the civilians fired at were unarmed. The victims of the Houston Police Department include a double-amputee in a wheelchair and a Navy veteran suffering from a mental illness.

Making matters worse for the citizenry is the lack of dashboard cameras in the vast majority of HPD patrol cars. The lack of cameras means that there is almost never a video record of a police shooting in Houston.

Police Chief Charles McClelland has defended his officers going so far as to say that deadly force is justified even if the suspect is unarmed. During the five year period investigated by The Houston Chronicle, the department found only one of 636 officer shootings (including shooting animals and unintentional firings) was not justified.

Yes, officers are faced with making split-second decisions about how to handle a particular suspect. But the same laws that govern our behavior are, at least in theory, the same laws that govern police officers. A police officer's job is to protect and defend the citizens of their city - not to declare war on part of the population. While it is not justified for a citizen to walk down the street and shoot at someone else just because he thinks that other person might be carrying a weapon, police officers in Houston seem to have carte blanche to do just that.

The matter isn't helped by the callous attitude of the Harris County District Attorney's Office when it comes to police shootings. The attitude of prosecutors is that the police wear white hats while everyone else wears a black (or grey) hat. While prosecutors will always refer to complaining witnesses as "my victim," when a civilian is on the wrong side of a police shooting the focus turns to "my officer."

If the targets of police shootings weren't overwhelmingly black, brown or poor maybe there's be a different attitude on the part of prosecutors and the public. If the victims of police shootings lived in better neighborhoods and looked more like judges and prosecutors, maybe the attitude would change.

The unintended consequences of a campaign pledge

Back when the late Mike Anderson was running for DA against incumbent Pat Lykos he attacked her over and over again for her decision not to try so-called trace cases. Under the Lykos administration, if someone were arrested for possessing less than .01 grams of cocaine, the case was either dismissed or the defendant was offered a plea to a paraphernalia case.

There were a multitude of reasons for the policy. First, if there was less than .01 grams of residue, there wasn't enough for both the state and the defense to test the sample. Second, during her 2008 campaign, Ms. Lykos said the criminal (in)justice system couldn't cure every problem and that some folks were better off seeking treatment for their addictions. Third, the Harris County Jail was full to the gills and the county was having to lease jail space in other counties in Texas as well as in Louisiana. 

The situation was untenable. Not that Chuck Rosenthal and his team of true believers gave a second thought to the consequences of their actions.

Well Ms. Lykos wasn't part of the good ol' boy network so she had to go. Mike Anderson took up the banner of Holmes worship and pledged to undo everything that Ms. Lykos had done in office. One of his promises was to start prosecuting trace cases as felonies once again. The police and true believers thought the rapture had come and Mr. Anderson was swept into office.

Once there Mr. Anderson began the process of changing office policy. No longer would the Harris County District Attorney's Office go soft on those wrongdoers who had less than .01 grams of drug residue on their person. Nope. If you give them a break, the next thing you know someone else is going to want some leniency on some other crime. Damn that slippery slope!

Under Mike Anderson's watch, trace cases were prosecuted as felonies but defendants were offered so-called 12.44a sentences. That designation refers to a provision in the penal code that allows the court to assess misdemeanor punishment on state jail felony convictions.

And so, predictably, the inmate population in the Harris County Jail began to creep higher toward full capacity. Someone was going to have to to do something quick. The voters had already nixed the idea of issuing bonds to build a fourth jail downtown. County commissioners weren't keen on the idea of spending money to house inmates in other counties.

Interim District Attorney Devon Anderson, the widow of Mike Anderson, acknowledges there is a problem -- something that Mr. Anderson never did. Of course she told the Criminal Justice Coordinating Council that she wasn't worried about filing felony charges against folks possessing less than .01 grams of cocaine. She, on the other hand, was worried about the number of defendants who were punished under Section 12.44a of the Penal Code. She said she was concerned about the number of first time offenders who were now walking around with felony drug convictions.

She said she preferred treatment to incarceration. But she never said she was opposed to prosecuting the cases as felonies. And there's the disconnect.

If you charge folks with a felony and they can't post bond, the attorneys appointed to plead them out are going to try either to get the charges reduced to misdemeanors or, at worst, to get the prosecutor to offer county time for a felony conviction under 12.44a. Folks who are out on bond for a trace case are unlikely to go to prison or jail in exchange for a plea (though there are exceptions). They'll take their felony deferred or probation and walk on out of the courthouse.

Such pleas are rarely offered to someone sitting in the holdover - unless they are willing to put up a fight on their case. Besides, the folks who can't post bond tend to have backgrounds and live in circumstances that make them bad risks for probation.

Ms. Anderson points to her background as a drug court judge (before getting booted out of office in 2008) - but y'all already know my opinion of drug courts. The criminal (in)justice system does a very poor job of reducing addiction. Those who suffer from addiction are going to fall off the tracks from time-to-time on their way to recovery. When they do suffer a relapse, treatment and counseling - not prosecution - is the answer. 

Our courts operate in an adversarial environment. The theory is that the truth (or something vaguely resembling it) will emerge though two parties telling competing stories. When one side rolls over and plays dead - or, in the parlance of the specialty courts, works as part of a team - the adversarial system doesn't work as planned and the defendant is always the one getting jobbed.

The answer to reducing the county's jail population isn't to prosecute trace cases, the answer is to make treatment available for those who want it - regardless of their ability to pay. Drug addiction is a public health issue - not a criminal issue - and until we begin to treat it as such, we will never make any headway in reducing the problem.

Last one in gets the job

And the game of trying to find someone who wants to be DA continues...

For those of y'all not up to speed. Mike Anderson, a former prosecutor and state district judge, was elected Harris County District Attorney in November 2012, defeating perennial candidate Lloyd Oliver.

Mr. Anderson announced he was taking a leave of absence in May 2013 due to his suffering from cancer. On August 31, he died. While he was on leave, his first assistant, Belinda Hill, a former prosecutor and state district judge, was named the interim district attorney.

Since Mr. Anderson served less than half of his four-year term, under state law a special election must be held to determine who will serve as DA for the remainder of the original term. But the government must appoint an interim DA to serve until the special election.

As of now Ms. Hill seems to be the favorite to be appointed interim DA because, well, no one else seems to want the job. The Harris County Republican Party is so enamored of Ms. Hill that Jared Woodhill, the leader of the local GOP, is asking Governor Perry to appoint Mr. Anderson's widow, Devon Anderson (also a former prosecutor and state district judge who also worked the dark side as a defense attorney after being booted from the bench in 2008) to fill the seat.

Why doesn't anyone want the job? It's the highest profile county-wide post in Harris County -- aside from being county judge when a hurricane strikes. It will give whoever accepts it a big leg-up in the special election. You get to be the top law enforcement agent in the largest county in Texas. What could beat that?

Well, I guess there's the issue of managing an office with well over 200 attorneys plus staff. Then there's that whole "tough on crime" thing that doesn't take into account that it costs a bunch of money to lock folks up in jail. And then there's the state of the Harris County Jail -- it's full to the gills with folks who can't make bond.

As we can see by the grease fire that is the DWI pre-trial intervention program, it's not enough to make promises and speak in sound bites on the campaign trail. In order to make things work it takes attention to detail and an office that "buys into" a program. The PTI program was cobbled out of Pat Lykos' illegal DIVERT scheme without much thought as to how it would be implemented.

On second thought, maybe it's no wonder no one wants the job.

Vacuum at the top

Earlier this month, after less than a year in office, Harris County District Attorney Mike Anderson died from cancer. He had been out of the public eye since May when he announced he was suffering from cancer and was taking a leave of absence.

In the meantime, former state district judge Belinda Hill, the First Assistant District Attorney, became acting DA. And, over the last four months there has been a complete vacuum on the Sixth Floor at 1201 Franklin.

Organizational chart for the Harris County District Attorney's Office

The theme of Mr. Anderson's campaign seemed to be "I'm not Pat." He advanced few ideas on how to fix the perceived problems in the DA's office. Apparently just being one of Johnny Holmes' "boys" would be enough to cure the office's ills.

Aside from his decision that we need to lock up more folks for possession of drugs in amounts so small that there isn't enough to conduct confirmatory tests by an outside lab, he set out to kill Pat Lykos' illegal DIVERT program.

But no one wanted to do away with pretrial diversion for DWI cases - since the program reduced the number of cases taken to trial (and the number of not guilty verdicts rendered by Harris County juries) - so he got rid of the element that made the program illegal.

Under Ms. Lykos' scheme a defendant wishing to enter the program had to enter a guilty plea in open court that could then be used against them should things go south down the road. That made the plan deferred adjudication under a different name - something that is barred by state law. So the Anderson administration did away with the plea and gave the program a new name.

But when questions arose regarding who was eligible and who wasn't and what defendants would be required to do as a condition of their "probation," there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.

And so the program, which in reality is nothing but a contract entered into by a defendant and the DA's office, found itself in a tug-of-war with the judges, the prosecutors and defense attorneys. Judges decided who could apply. Judges decided whether or not to allow cases to sit on their dockets for a year while the defendant fulfilled the terms of the contract.

All because no one was willing to take charge. And let's be honest about it, no one believed that Mr. Anderson would be returning to his office. It wasn't a situation in which Ms. Hill was just keeping a seat warm. She was, for all intents and purposes, the unelected chief prosecutor in Harris County.

State law dictates that if an officeholder dies less than two years into his or her four-year term that a special election must be held at the time of the next general election. This means that Gov. Rick Perry will have to appoint someone to be the interim District Attorney until next November when the voters of Harris County will select someone to fill the rest of Mr. Anderson's term.

Rumors have it that Gov. Goodhair has shopped the position to various folks who have been prominent in the Harris County criminal (in)justice system but that no one has expressed any desire in serving as the temp. It looks like Belinda Hill will get the nod by default. But whatever's going to happen needs to happen fast because so long as no one's in charge confusion will continue to reign at  1201 Franklin.

No refusal isn't just for weekends anymore

No longer must we wait for holidays and three-day weekends to celebrate the evisceration of the Fourth Amendment. Now, in Harris County, we can celebrate it every day. That's because the Harris County District Attorney's Office has decided to make every day a No Refusal Day.

Going forward anytime a motorist is stopped and arrested on suspicion of driving while intoxicated and refuses to consent to a breath test, police will obtain a warrant to strap that motorist down and stick a needle in their arm. The expansion of No Refusal Weekends was announced by the Harris County District Attorney's Office but no one from the county judiciary had anything to say (publicly) about the plan.

It strikes me as quite interesting that the DA's office would announce a program expanding the use of search warrants to conduct forcible blood draws while the people who would actually sign the warrants said nothing. There just isn't any question that men and women wearing black polyester robes will take the warrant application from their fax machine and sign it unconditionally.

No Refusal Weekends only work when judges are compliant and willing to cast aside any shred of impartiality and join "the team." There is no random wheel that assigns judges to sit and wait for search warrant applications to come across the telephone lines. Judges are recruited to blindly sign search warrants authorizing forcible blood draws at the drop of a hat.

This willingness to sign warrants without scrutiny is a blatant violation of the oaths they took when they took they position on the bench. The name of the game isn't teaming up to rid the streets of drunk drivers - the name of the game is to ensure that the constitutional rights of the accused are protected. Judges who are worried about looking soft on crime are doing us all a great disservice by sitting on the bench in judgment of others.

Is this Mike Anderson's idea of ethics?

Just what does it say about Harris County District Attorney Mike Anderson that he selected Dick Bax to be general counsel for the DA's office? I can only imagine the vitriol that would flow from my friend and colleague Murray Newman's keyboard had Pat Lykos made the same selection.

Dick Bax was the prosecutor in the Ricardo Adalpe Guerra case back in the 1980's. Aldape Guerra was convicted of capital murder and sentenced to death. His conviction was overturned 15 years later by US District Judge Kenneth Hoyt who made some very pointed comments regarding the behavior of the Harris County DA's office in the case.

It is clear to this Court that the mood and motivation underlying the police officers' conduct arising out of this case was to convict Guerra for the death of officer Harris even if the facts did not warrant that result. The Court finds and holds that the police officers and the prosecutors intimidated witnesses in an effort to suppress evidence favorable and material to Guerra's defense. Specifically, the written statements that were taken after the line-up are in many respects in significant contrast to those taken before the lineup. The Court attributes this to the fact that Carrasco had been killed and the strong, overwhelming desire to charge both men with the same crime, even if it was impossible to do so. -- Guerra v. Collins, 916 F.Supp. 620, 626 (SD Texas 1995).

As usual the court protects the identities of the prosecutors who stepped afoul of their legal obligations. As to the intimidation, these were witnesses that the police found the night of the shootings - if they are willing to intimidate these witnesses, just imagine what they'd be willing to do with defense witnesses whose names are provided per Sen. Ellis' proposed reciprocal discovery bill.

Judge Hoyt also found that the police had used improper procedures in the lead-up to the line-up - namely parading Aldape Guerra in front of the witnesses with his hands in paper bags. But the police weren't the only ones who played fast and loose with the rules.

The prosecutors joined the hunt by conducting a reenactment of the shooting shortly after the incident with various chosen witnesses participating. This procedure permitted the witnesses to overhear each others view and conform their views to develop a consensus view. At the pretrial weekend conference, the prosecutors presented the two mannequins intended for use during trial. These life-size mannequins, created in the images of Guerra and Carrasco, were utilized then and throughout the trial to reinforce and bolster the witnesses' testimonies. The effect of these impermissibly suggestive procedures also resulted in a denial of "due process", as evidenced by the witnesses' federal habeas testimony. -- Guerra, 629

Then there was the complete disregard of Brady.

634The police officers and prosecutors had a duty to accurately record the statements of the witnesses, to fairly investigate the case, and to disclose all exculpatory evidence. Moreover, they had a duty to not prosecute an innocent man. They failed in these duties. These intentional omissions, during the investigation and prosecution, and the inclusion of poisonous speculations during trial, had the effect of suppressing and destroying favorable testimony that the Court finds was material to Guerra's defense. The information that the police and prosecutors failed to disclose, as well as the manner that the investigation and prosecution were conducted, hardly left a paper trail, and intentionally so. The concept of deceit was planted by the police and nurtured by the prosecutors. This conduct by the police and prosecutors could only have been deliberate and, so much so, that even the exonerating evidence was used in such a manner as to create a materially misleading impression. -- Guerra, 634

In addition to all of this, prosecutors also put on perjured testimony at trial. But that's okay. You see the district attorney back then was Johnny Holmes. He's the subject of hero worship by the member of that office. He's the one that's lionized for being tough yet ethical. He's the one that Pat Lykos wasn't. He's the one who got up and said in that infamous "ethics" training session that Mike Anderson would bring integrity back to the office.

I think Murray might even have a picture of Mr. Holmes on his nightstand.

But then, here's the kicker.

The police officers' and the prosecutors' actions described in these findings were intentional, were done in bad faith, and are outrageous. These men and women, sworn to uphold the law, abandoned their charge and became merchants of chaos. It is these type flag-festooned police and law-and-order prosecutors who bring cases of this nature, giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed. Their misconduct was designed and calculated to obtain a conviction and another "notch in their guns" despite the overwhelming evidence that Carrasco was the killer and the lack of evidence pointing to Guerra. 

The police officers and prosecutors were successful in intimidating and manipulating a number of unsophisticated witnesses, many mere children, into testifying contrary to what the witnesses and prosecutors knew to be the true fact, solely to vindicate the death of officer Harris and for personal aggrandizement. The cumulative effect of the police officers' and prosecutors' misconduct violated Guerra's federal constitutional right to a fair and impartial process and trial. -- Guerra, 637

Pretty damning, huh? And now Mike Anderson, the self-proclaimed savior of the DA's office has made the target of Judge Hoyt's outrage his general counsel.

What does that tell you about the state of ethics at 1201 Franklin?

See also:

"Prosecutor accused by courts of 'intentional misconduct' named Harris DA general counsel," Grits for Breakfast (March 3, 2013)

How to form a cult

So you want to create a cult, do you?

Creating an "us vs. them" attitude is one of the most effective tools in your arsenal. Take a group of people and convince them that they are standing up against the unruly mob banging on the door and they will turn their eyes inward.

Thanks to Big Jolly and Grits for Breakfast we have the presentation put up by the Grand Poobah of 1201 Franklin, District Attorney Mike Anderson, at a recent "ethics" training.

According to Mr. Anderson and Rob Kepple, of the Texas District and County Attorneys Association, those poor prosecutors are the only folks protecting us from the barbarians at the gate. They are maligned, scorned and mocked by those around them. The legislature is against them. The judges are against them. The defense attorneys are against them. The public is against them.

Add to the bunker mentality the cult-like figure of Johnny Holmes and you've got all you need to make your cult a going concern. 

One of the primary targets of Mr. Kepple's fury is the Innocence Project. In the eyes of Mr. Kepple those evil-minded ne'er-do-wells only want to make prosecutors look bad by asking to have DNA tested in case after case after case.

Mr. Kepple shows some serious man-love for former Williamson County D.A. John Bradley for his handling of the Michael Morton case. Should you not recall, Mr. Bradley blocked DNA testing on evidence found near the Morton home. In Mr. Kepple's words, Mr. Morton "got lucky."

Yes, he did get lucky. But he should never have had to go through the hell he went through. His life was torn asunder by Ken Anderson (now a judge) and Mr. Bradley. Mr. Kepple is still upset about the demise of Mr. Bradley. He's upset that such a law-and-order guy like Mr. Bradley was booted out of office by voters who were sick and tired of his tired schtick and the way he maneuvered for years to prevent DNA testing in Mr. Morton's case.

One thing that Mr. Kepple leaves unaddressed is how to prevent unethical and illegal conduct by prosecutors. In his view, Charles Sebesta, whose conduct led to an innocent man being put on death row, was just a bad apple (if even that). Prosecutors who resisted DNA testing were principled men and women standing up for what was right - the men challenging the evidence were the bad guys.

John Bradley did no wrong in the Morton case - even though we know an innocent man spent a quarter of a century behind bars for a crime that someone else committed.

And that fact doesn't even seem to play into Mr. Kebble's view of the world. He just doesn't seem to understand that if an innocent man was convicted for a crime - the real perpetrator is still out there. Instead of getting your panties in a wad because someone's getting exonerated, why not work to figure out who should have been prosecuted in the first place?

And then there's Brady. The state can always get away without disclosure by arguing that the evidence wasn't material. So does anyone at this training session urge a more liberal interpretation of Brady? Of course not. The goal isn't to disclose. The goal is to hide it away where it can never be found.

All hail the Great Grand Exalted Poobah.

Here's the full video courtesy of Big Jolly...

So what's Plan B?

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.

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.

Distracting the public

My colleague Murray Newman really wants Mike Anderson to be the next district attorney. Over the past four years he has never wasted an opportunity to castigate current Harris County DA Pat Lykos - all the time conveniently ignoring the multitude of ethical and legal problems that engulfed the office under Chuck Rosenthal.

Yes, Ms. Lykos ruffled a lot of feathers. She wasn't warm and fuzzy. She wasn't part of the good ol' boy network. The latter being her biggest fault.

Yet Ms. Lykos lacked the myopia of Rosenthal's crew. She understood that criminal prosecution wasn't the answer to every little problem. She realized it made no sense to send people to prison because they were found in possession of a trace amount of a controlled substance.

Mike Anderson is a throwback. A throwback to the good ol' boy network. The Harris County Jail is stuffed to the gills but if Anderson has his way he'll be locking up folks for possessing trace amounts again. Do tell us, Murray, where's the money going to come from to relieve the jail overcrowding we will face again? How much money are we going to ship to other counties to hold our pretrial detainees?

Murray and the rest of Anderson's followers are upset because Lloyd Oliver said that there should be fewer domestic assault prosecutions. Well, here's an inconvenient truth for y'all, a good number of domestic assault prosecutions end up in dismissals. Whether it be by the defendant taking a battering prevention class or because a complaining witness decided not to cooperate is a meaningless distinction.

And how is holding a defendant in custody with no bond until he is brought before a judge who issues a protective order solving any problem? All it serves to do is to contribute to the overcrowding of the county jail.

And now, in a sign of desperation, the Anderson campaign is trying to scare voters by claiming half of the DA's office will walk out if Mr. Oliver is elected. I guess that's easier than trying to explain how much it's going to cost to expanding drug prosecutions. It's probably easier than explaining why the Harris County Jail is the county's largest mental health facility.

What a twist, Oliver

Oh, Lane Lewis just thought he had the last laugh when he told the folks who voted in the Democratic primary in Harris County to fuck off by taking Lloyd Oliver off the November ballot.

District Judge Bill Burke thought otherwise.

After Mr. Oliver filed suit to prevent the Harris County Democratic Party from removing his name from the ballot for the general election, the local Dems had the case removed to federal court. Not so fast said US District Judge Lee Rosenthal. She sent the case back down to Harris County.

And over at the Civil Courthouse yesterday, Judge Burke heard both sides argue their case and then decided that Mr. Lewis did not have the authority to overrule the voters. Judge Burke was fine with Mr. Lewis' argument that the party gets to control access to the primary ballot, but he was buying the argument that the party's authority extended to removing the candidate who won the primary.

While the result may come as an embarrassment to the party establishment, it is also a message that the voice of the people cannot be ignored. Or at least the voice of the few folks who made their way to the polls.

Along the way Mr. Oliver referred to the local party bosses, Lane Lewis and Gerald Birnberg, as goobers, twits and fools. And he's right. If the bosses had been paying attention to what was happening, they never would have allowed Mr. Oliver to enter the Democratic primary.

They probably figured that there was no way Mr. Oliver could win. But they were wrong. They knew Mr. Oliver had run on both parties' tickets over the years. But still they took his check for the filing fee and let him in the door.

While Lloyd Oliver isn't the person I'd like to cast a vote for in November, he's a damn sight better than the alternative. Four years ago the voters in Harris County said no to the good ol' boy network. Will they send the same message this time around?

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:

• 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)