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?

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?

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.

Now, about that separation of powers thing...

I have spent thirty years in law enforcement in Harris County as a prosecutor and District Court judge.

So begins the campaign rhetoric on Harris County District Attorney-wannabe Mike Anderson's website. I find it interesting that he lumps working as a prosecutor and a judge into law enforcement.

Especially since they're not the same.

Law enforcement is part of the executive branch - the police enforce the laws. The District Attorney's Office is part of the executive branch. The DA's job is to enforce the laws by prosecuting those accused of breaking the law.

But judges aren't supposed to be part of law enforcement. Judges are part of the judicial branch. The job of a judge isn't to enforce the law, the job of a judge is to interpret the law and to preside as a neutral and detached referee at trial. The judiciary is supposed to act as a check on the power of both the executive and legislative branches.

Mike Anderson, like too many men and women sitting on the bench today, confused his role. He thought himself a prosecutor in a black robe (or, as Mark Bennett would say "dress"). He refers to himself as a "strong law and order judge." That, of course, means that he came down on the side of law enforcement, ignoring the "testilying" that takes place on witness stands throughout the Harris County Criminal (In)justice Center on a daily basis. That means he ignored allegations of police brutality and racial profiling.

If you're a prosecutor there's nothing wrong with that. Prosecutors are advocates. But, if you're a judge, that attitude indicates an abdication of power.

Mike Anderson never left the Harris County District Attorney's Office - he just transferred to a different division.

A couple of questions for Mike Anderson, please

Okay, Murray, I took a look at Mike Anderson's website. I had to because I had a couple of questions for the prospective District Attorney that I thought needed answering, so I e-mailed him:

Mr. Anderson,
 I understand that you are opposed to the current DA’s policy of not prosecuting “trace” possession cases. If you were going to pursue those cases, how would your office handle the problem of having enough of a sample for defense attorneys to have re-tested? 

 Additionally, if these cases are to be prosecuted, where would you find the beds and the money to house the additional inmates? 

 Furthermore, as the “War on Drugs” has largely been a failure, how will locking someone up help that person to get over their drug addiction? 

 I will be more than happy to run your answers in my blog, The Defense Rests, unedited. I look forward to your response.

It's easy to offer criticism of another's approach to any problem, it's much harder to formulate a proposed solution. I would like to hear Mr. Anderson's ideas on how to handle residue cases. I would like to hear that he's thought beyond the knee-jerk "lock 'em all up!" approach.