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Our local ABC affiliate, KTRK, interviewed me about the Chuck Rosenthal contempt hearing (which may still be going on right now; I had hoped to live-blog it, but the needs of actual clients intervened). This morning a prosecutor came up to me in the courthouse and actually thanked me for not bashing the Office. Here's the story (with video).

One of the Toughest Jobs in the World

A reader sent me this link: Japanese Justice. In Japan, you can be detained by the police for up to 23 days without habeas corpus. "Forced signed confessions, still considered the "king of evidence" by Japanese courts, are often the result." No kidding -- if you have a guy in custody for 23 days and can't get him to confess to whatever you want, you've got no business interrogating people, especially when "resisting police demands for a confession, and denying the charges, results in detention for extended periods; confession can bring a speedy release."

You think that would make it tough to be a defense lawyer in Japan? It does -- 99% of people accused are convicted, mostly by their own confessions. But wait, there's more:

Most worryingly of all, say critics, lawyers — the last line of defense in this potholed legal landscape — are not immune from harassment.

Tokyo lawyer Yoshihiro Yasuda was arrested in 1998 and held for 300 days while he was tried on charges of unlawfully concealing the assets of a client. Yasuda was no friend of the police: he had defended Shoko Asahara, leader of the murderous religious cult Aum Shinrikyo, and is Japan's most outspoken critic of the death penalty.

During the Aum trial, the lawyer accused the police of failing to properly investigate the Aum-sanctioned murder of lawyer Tsutsumi Sakamoto and his family, because he sided against them in the alleged wiretapping of Communist Party members.

In 2003, the Tokyo District Court found him not guilty, criticizing the prosecutors as "unfair." But Yasuda remains furious about his detention and interrogation.

"How can we achieve the principle of presumption of innocence in Japan under such circumstances?" he asked The Japan Times after his release.

Says Lawrence Repeta, a constitutional specialist at Tokyo's Omiya Law School: "The point of what they did to him is to threaten every lawyer in Japan. The authorities are saying to lawyers, 'Back off, don't aggressively represent your client or we are going to destroy your life.' Yasuda's extended pretrial detention amounts to punishment, even before the court issued a decision."

Defense lawyer and professor Takashi Takano "calls being a defense lawyer in Japan one of the toughest jobs in the world: after 25 years practicing law, just five of his clients have been completely exonerated."

"Some lawyers go their whole lives without winning a case," he explains. "I was very shocked when I first went to court and saw arrogant judges ignore hearsay rules, accept confessions — and lawyers who didn't challenge them. I feel very strong anger toward the Japanese justice system. It is my motivation to change things."

Reform is coming: starting in spring 2008 lay juries will hear serious criminal cases in Japan for the first time since 1943.

Time for a Change of Format?

Two of my older readers have protested that the white text on black background is hard to read. I'm thinking about changing my layout to something a little less badass and more user-friendly.

Opinions?

Does Mensa Matter?

Mensa is an organization for people with IQs above the 98th percentile. That translates to IQs above 132 on the Stanford-Binet IQ test (wikipedia). (It is, to borrow from John Bender, sorta social -- demented and sad, but social.)

Lawyer is a typical occupation for people with an IQ in the 130s. According to the Michigan Bar Journal, "the mean, that is the mathematical average, IQ of attorneys hovers around 127." I would bet that more than a fourth of the lawyers (and one of the judges . . . maybe) down at the criminal courthouse have IQs of 132 or above. Most of them don't belong to Mensa.

Yet every positive article about Kelly Siegler and her bid for DA seems to mention her Mensa membership. Why is that?

Wall Street Journal Discovers TBI

Steve Gustitis at the Defense Perspective reminds us that "hidden head trauma may be linked to behavioral problems in society", which is of great import to the criminal defense lawyer.

Steve's post was inspired by an email from John Niland of the Texas Defender Service, who sent the Texas capital defense bar a link to a Wall Street Journal front-page article:

That severe head injuries can lead to cognitive and behavioral problems is widely accepted. The U.S. Centers for Disease Control and Prevention estimates 5.3 million Americans suffer from mental or physical disability that is due to brain injury.

What's new is the contention of some researchers that there are many other cases where a severe past blow to the head, resulting in unconsciousness or confusion, is the unrecognized source of such problems. "Unidentified traumatic brain injury is an unrecognized major source of social and vocational failure," says Wayne A. Gordon, director of the Brain Injury Research Center at Mount Sinai School of Medicine in New York, where much of the research is being done.

Research by his team has consistently found high rates of "hidden" head trauma when screening various populations in New York schools, addiction programs and the general population. The CDC acknowledges its 5.3 million estimate is an undercount based on hospital admissions; it doesn't include people who sought no treatment for a severe blow to the head or who were sent home from a doctor's office or emergency room with little treatment.

None of this qualifies as news here at Defending People, nor to Steve or John. If you're new to these here parts, here're my previous posts on the topic of traumatic brain injury, or TBI.

And here's an article about LaFonda Jones, who is a lawyer protecting the rights of soldiers suffering from PTSD and TBI.

Meet Pat Lykos

I'm not the biggest fan (y'all might have detected this) of the idea of Kelly Siegler as Harris County D.A. It's time for a change at the DA's office, and unless Kelly starts telling us how she would institute real change at the Office, I'll be dubious about whether she will bring real change.

But they tell me that change is not always good; they say that things could always get worse.

If the prosecutorial and defense bars were to get together and choose the next DA by consensus, it would be Jim Leitner. If they were to get together and eliminate a candidate by consensus, I suspect that it would be Pat Lykos. I never got to practice before Judge Lykos, but I've heard some of the stories.

So, it turns out, has the New York Times. Twelve years ago the Times printed an account of then-Judge Lykos refusing to let a witness testify while wearing his yarmulke. AHCL makes a big deal about this today, challenging Chronicle reporter Alan Bernstein to write something about this incident, as he wrote about Kelly's use of the verb "to jew down" in a trial 20 years ago.

Lykos claimed that she required the witness to remove his yarmulke because of "a Supreme Court decision that no lawyer or expert witness could have that additional authority of religion"; Mensan (why is Kelly's Mensa membership mentioned in every story about her?) Kelly Siegler claimed that "It never even dawned on me [that 'to jew down' is antisemitic]. I probably would have even spelled it 'j-u-e,' that's how stupid I was."

When Kelly realized that she had offended a juror, she went to that juror's house and apologized in person; Judge Lykos apparently never apologized, but the witness who was ordered to remove his yarmulke to testify filed a complaint against her and "said he sought nothing more than a clarification of this issue, and he noted in his complaint that Judge Lykos appeared to be ''a nice person'' and that he did not think she was anti-Semitic".

Best-case scenarios:

Kelly, ignorant of the offensive meaning of "to jew down", uses it. She learns that she offended a juror, and goes out of her way to apologize to the person she offended.

Lykos, ignorant of the scope of a Supreme Court opinion, orders a witness to remove his yarmulke. She learns that she offended the witness, and doesn't apologize.

Worse-case scenarios:

Kelly uses "to jew down", meaning (for some inscrutable reason -- this is the worst-case scenario) to offend. She then goes out of her way to apologize the person she offended.

Lykos orders the witness to remove his yarmulke because she just doesn't like Jews (again, worst-case). She then claims that she vas chust following orders.

With apologies to my readers who come here for the Kelly-bashing, I think Ms. Siegler has the better of this little argument whether you are a prosecutor (and assume the worst of everyone) or a defender (and assume the best).

A good apology makes all the difference in the world. I'd much rather put my confidence in someone who apologizes when she screws up than in someone who, shrublike, denies ever screwing up.

The Candidates' Debate

From Earl Musick:

The Harris County Criminal Lawyers Association feels that the election of the next Harris County District Attorney is extremely important to our organization and to the citizens of Harris County.

Because of the importance of this race, HCCLA has organized a debate involving candidates seeking this important position.

The debate is sponsored by HCCLA, the South Texas College of Law and KHOU-TV. It will be held at South Texas College of Law on February 19, 2008, at 6:30 p.m. and will be one hour from start to finish.

KHOU-TV will webcast the debate.

If you have questions that you think the candidates should be asked, please leave them in the comments and I'll pass them on to Earl.

Prosecutors and Judges: How is this Possibly Okay?

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered "after proper and timely notice to the Defendant", and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn't serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don't know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That's ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it's also a crime: tampering with governmental records. Look it up. On second thought, don't bother. It's Texas Penal Code Section 37.10(a)(1). It's a class A misdemeanor unless you intend to defraud or harm another (arguable -- defrauding the court?), in which case it's a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you've committed a more serious crime. Call home and tell your mother; I'm sure she'll be very proud.)

I know that the Harris County District Attorney's Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA's duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA's office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin'. The public no longer holds the delusive belief that you can do no wrong; there's going to be a new DA a year from now, and there's a reasonable probability that it will be someone who doesn't approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the "little" crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you'll say. I'm not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that's proof that the rot spreads farther than just the sixth floor. It wasn't Chuck's job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that's not really appropriate, but it's going to happen however much I fuss -- even if you don't care whether the state wins, you naturally want the state's inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you're making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don't think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn't know that the certificate of service was false. You took the prosecutor's word for it. Clearly, that doesn't work. But it doesn't matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor's certificate of service was false, and I would have had a chance to respond.

The times are a-changin' for the bench as well. The Harris County Criminal Lawyers' Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not -- it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it's indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there's something else for you to consider: Dallas County. It is possible that Harris County's Republican judges, like Dallas County's, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not -- the Dallasification of Harris County elections is purely speculative right now. But it's indisputably easier to run unopposed than to run opposed and win.

Phone Call from a Slave Ship

Phone Call from a Slave Ship

Rupert File

Why worry over frail Josie not knowing where I am

When I don't even know where I am, but

Judging through steel mesh, we're headed downtown

Me and Major, just met, cuffed-up.

"Got DAMN," Major goes, knee-pounding the DAMN,

my left hand helping his right, having to.

Me with problems too - frail Josie not knowing

Where I am one. Last night another -

Josie breathing, "I love you."

"Me too," somebody mean went.

"Can't you say it?"

"IT. How's that. It, it, it," me so slick.

Now in this place, pocket-emptied,

Crack-searched, plastic-glove patted, shoe-shook

Nothing mean or slick left.

In the bench soon we get our call -

Mostly whines to bosses, lawyers.

Everybody listening, nobody guilty.

Mine though finds a soft voice across town - Josie's.

IT gets whispered, her going, "what?"

I cup the phone. The benches lean forward.

Still it's "what?"

"I love you, Josie" comes hollered and

"Whooo - lover-boy" go the benches, thigh slapping

drowning frail Josie's reply.

Slump-sitting I try to dissolve, to not be lover-boy

Close-eyed, I hear us in the hold,

Some moaning, some singing,

Me scurvy-heartsick already

Still smelling land.

New York is Definitely Different

In Texas, a "car" is a car. In New York, apparently, a "car" is what a fancy-pants criminal defense lawyer calls a white stretch limo, which is what Scott Greenfield sent to pick me up from the airport when he found out that I was coming in to do some work on a cocaine conspiracy case in his stomping ground, the U.S. District Court for the Southern District of New York.

So I'm riding in the back of this preposterous conveyance right now, and I have only one question:

Where's the 30-year-old scotch?

More on Boucher

Scott Greenfield writes to "deconstruct" (whatever that means) the Boucher confusion on password and privilege.

Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn't actually say that Mr. Boucher input his password at the border. In fact, "Agent Curtis did not see Boucher enter a password to access drive Z."

Scott's reasoning, given in a comment to the "deconstructing" post, for his assumption that Mr. Boucher had input the password at the border is this: "It strikes me as hard to figure out how the border guards found the original kiddie porn file if he hadn't input the password in the first instance."

I'd like to propose two plausible explanations.

First, drive Z may already have been decrypted and mounted when Mr. Boucher woke his computer from sleep at the crossing. After seeing the suspect images, according to Magistrate Judge Niedermeier's opinion, "Agent Curtis arrested Boucher. He then seized the laptop, after shutting it down." This would have triggered the encryption software's unmount of drive Z.

Second (Scott, bear with me, I'm thinking like an actual criminal defense lawyer) Agent Curtis may not have found a kiddie porn file on the computer. He might not have seen the contents of drive Z at all. He could be making up some or all of this story as a pretext to find out what is on drive Z. (Why, then, would Mr. Boucher refuse to open drive Z for the government? Because whatever the contents of drive Z, they none of the Government's damn business.)

That dispenses with what Scott calls "Orin's nit-picking on one fact," but how does it affect the analysis?

Scot thinks that one fact is important:

The difference is that each new question, new room searched, new act of sex (if one is inclined to follow Bennett's lead), is an independent act and hence entitled to independent protection. The password demanded from Boucher is not a new bit of information, but the same bit that has already been provided. They just need it again.

That's a distinction without a difference. If Magistrate Judge Niedermeier is right that this case poses a Fifth Amendment question, it doesn't matter whether Mr. Boucher had answered the government's question before.

The government can't compel an accused to answer its questions again any more than it could have compelled him to answer its questions the first time. If an accused confesses at the police station, he's not waiving his right to remain silent at trial. The government can't force him to answer the same questions at trial that he answered before. And if the government does force him to answer the questions, then it can't make either direct or derivative use of the answers against him.

If Mr. Boucher had not moved to quash the subpoena, or if the magistrate judge had denied the motion to quash, he could have taken the Fifth before the Grand Jury. Then the government could have given him immunity (technically or practically [by getting Judge Niedermeier to order him to answer the question]) and forced him to answer the question or go to jail for contempt (which might be less onerous than going to prison for possession of child pornography). If he had then answered the question, his answer would have been compelled, and the government couldn't use the answer against him directly or indirectly.

If Mr. Boucher had been compelled to provide his password and Agent Curtis became unavailable for trial, the only evidence the government would then have of the contents of the hard drive would have been derived from Mr. Boucher's compelled testimony, and would therefore have been inadmissible.

The only way the government wins this one is if the contents of Mr. Boucher's brain were never protected by the Fifth Amendment.

My PGP Public Key

-----BEGIN PGP PUBLIC KEY BLOCK-----
Version: 9.7.1.1503

mQENBEebgPMBCADLXGPW79Zzes5UURVKbOA11Sq5dcNHyAOY+73DT93Z9LNpqG05
l7lt/0FSyOazi6xfJW4CVNunjL9kBLb0/0ehYUlh+27eycZ3QFMpuF2Mx8t3ZtU8
pgQkpn94tH2qF3Y2C+R9TM49OJ2YVDeVByXB6thoymbB0QkvniicqbaNzgpOBDCO
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Z0d+O/If5+e//eMq4nrjqp0+rZU=
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-----END PGP PUBLIC KEY BLOCK-----

You Can Always Say No

Gideon brings us news of a federal case in Vermont in which the judge has refused to force the accused to reveal the password that he used to PGP-encrypt the kiddie porn on his computer, even though the accused had already used the password to show agents what was on the computer.

This is, of course, a good ruling for liberty. In a world of sneak-and-peaks and warrantless wiretaps, it allows us to maintain a preserve of privacy into which the government cannot force its way. Apparently the USCBP doesn't yet have the quantum computers that would be needed to crack the RSA algorithm. If NSA's got that technology, they're not sharing. Download PGP today, and start using it.

According to the Washington Post article,

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. "If you admit something to the government, you give up the right against self-incrimination later on," said Kerr, a former federal prosecutor.

That reminded me of one of our law school classmates who, when we were discussing the law of rape in first-year criminal law class, asked the professor, "if you consent to have sex with someone once, does that mean you've consented for always?"

Um, no.

Why Chuck Won't Leave -- Another Data Point

Apparently Allegedly the difference in Chuck Rosenthal's pension if he leaves now and if he leaves after completing his second term is something on the order of $90,000. A year.

[Update: So far I have been unable to confirm the truth of this allegation.]

Why Chuck Won't Leave

Hypothetical question:

If Chuck Rosenthal resigns, who is in charge of the DA's office?

Answer: First Assistant Bert Graham.

For how long?

Until governor Rick Perry appoints a new DA.

Well, who does he appoint?

Maybe Pat Lykos.

So?

So whoever Perry appoints goes into the primary with an advantage.

Again: so?

So the general feeling among prosecutors is that Lykos would be a disaster as a DA.

Why?

Well, first, they're concerned that she'll come in looking to prove that she'll change the office, and will gut it. Second, Lykos has a bad reputation for dishonesty from when she was a felony court judge.

How so?

Here's an anecdote: Judge Lykos took long lunches. After at least one such lunch during a jury trial she came back late, keeping the jury waiting. Judge Lykos told the jury that she had admonished the lawyers for coming back from lunch late and keeping the jury waiting.

Is that anecdote true?

I couldn't swear that it is fact, but I've heard it from two independent and reliable sources, one of whom is a criminal district court judge.

Anything else?

She is reported to have referred to a lawyer's father as an "asshole" and then, when the lawyer filed a motion to recuse her, claimed under oath that she never used such language. A prosecutor in her court swore that she used such language all the time.

Why is a DA's honesty important?

That's a stupid question.

How does the defense bar feel about Lykos?

Mostly, they seem to feel about the same about Judge Lykos as the prosecutorial bar.

Why?

Same reason, I guess.

What about you?

I don't know Judge Lykos personally, but I'm reconsidering my former ordering of candidates to raise Kelly Siegler above last place.

Why?

Because things could always get worse. A DA who lies to juries and lies under oath would set the wrong example for the office, and might well be worse than another four years of the Rosenthal-Siegler regime.

So what does that have to do with the title of this post?

Ah. If Chuck still cares about the Office, he might see himself as a better caretaker for the next two months than Judge Lykos would be.

The next two months?

After the primary, the governor is likely to appoint the primary winner to the DA's office if given the opportunity.

And what if Judge Lykos is the Republican candidate?

Let's cross that bridge when we come to it.

Is there an alternative to Chuck staying in office till after the primary?

Sure. He could negotiate the governor's promise to appoint a caretaker interim DA.

Like who?

There are several viable candidates who know how to run a DA's office and don't aspire to do so. Former DA Carol Vance and former DA Johnny Holmes come immediately to mind.

Any chance of such a negotiated resolution?

Sorry, that's way above my pay grade.

Who Am I Not?

It's been pointed out to me by anonymous commenters at Life at the Harris County Criminal Justice Center that I'm no Dan Cogdell, I'm no Racehorse Haynes, I'm no Gerald Goldstein, and I'm no Pat McCann. Because, of course, I used to believe that I was -- and hold myself out as -- Dan, Race, Gerry, and Pat. So I'm glad AHCL's kind anonymous commenters have cleared up some of my identity issues.

Once it was explained to me that I'm not any of those fine lawyers, I started thinking about who else I might not be. To begin with, I suspected that I might be no Stan Schneider, Michael Pham, Mike Ramsey, Walter Boyd, Norm Silverman, or any other Houston criminal defense lawyer.

It didn't take much investigation to confirm this suspicion.

More than that, though, I guessed that I'm no Chuck Rosenthal, Kelly Siegler, Rob Freyer, Mike Trent, Murray Newman . . . hell, I realized, it's pretty safe to say that if there is a criminal lawyer in Houston with a name other than Mark Bennett, I'm not he or she.

Then it occurred to me that the list of people I'm not might actually include some outside of Houston criminal law.

So, after further research, I no longer insist that you call me Ishmael.

I no longer harbor the belief that I'm a Jack Kennedy. Unlike Chuck Rosenthal and Louis XIV, I am not the state (and I never was); nor am I the law.

While I think, therefore I am (or, as Vic might say, I believe that I believe, therefore I believe that I am), I realize that I am not that I am. To the contrary I am (as Rudy Giuliani might say) no altar boy.

I'm pretty sure I'm not David or Sam, whoever they are. Sam-I-Am? No!

I am not America (and neither can you). I, not robot.

I realize now that I am not woman; don't hear me roar.

Whoever is John Galt, it is not I.

Sadly, I've come to understand that I am neither a little teapot, nor the walrus, nor even a rock. I am not a dancer. I am not Shakespeare. I am no Denzel; I am not even McLovin.

Lastly, I wish it weren't true, but I am not legend.

And that's the way it was, Friday, January 25th, 2008. Good night.

Judiciary Public Information

In Open Records 102- Attorney General Edition Robert Guest republishes a FAQ from the Texas Attorney General about the Texas Public Information Act. The AG notes, correctly that "records of the judiciary do not fall under the Public Information Act."

For Open Records Week last week I sent public information requests to all of Harris County's 37 criminal-court judges. To get public information (not Public Information) from the judiciary, you must comply with Rule 12 of the Texas Rules of Judicial Administration. Here's a brief rundown of how it works.

A request to inspect or copy a judicial record must be in writing and must include sufficient information to reasonably identify the record requested. The request must be sent to the records custodian and not to a court clerk or other agent for the records custodian.

The custodian of records for a single-judge court (like a trial court) is the judge. The custodian of records for a multi-judge court (like an appellate court) is the chief judge of that court.

Once the written request has been delivered to the judge, the judge has 14 days to either:

(1) allow the requestor to inspect the record and provide a copy if one is requested; or

(2) send written notice to the requestor stating that the record cannot within the prescribed period be produced or a copy provided, as applicable, and setting a reasonable date and time when the document will be produced or a copy provided, as applicable.

If the judge denies access to the records (again, within 14 days), the requestor has 30 days to "appeal the denial by filing a petition for review with the Administrative Director of the Office of Court Administration." Then the Administrative Director has 60 days to grant the petition or affirm the denial of access.

Aside from the administrative review process, the requester can seek a writ of mandamus to force the judge to comply with the rule. Also, a judge who knowingly fails to comply with Rule 12 is subject to sanctions under the Code of Judicial Conduct.

The 174th District Court

George Godwin, the longtime judge of the 174th District Court, is not running for reelection. Four prosecutors are running for that bench. Per AHCL, "Look for the A.D.A.'s to remain awkwardly quiet about this race until after the primary has settled the issue for them." How is the general public to choose among four prosecutors running for the bench?

One factor that helps make a good prosecutor is life experience. Many (most?) Harris County prosecutors go from high school to college to law school to the Office with no intervening time in the real world. Those who have had to exist outside the cloistered worlds of academia and government generally have a broader worldview, more of a sense of perspective, and more empathy than those who haven't.

In other words, they are more grown-up, more human. It may be that people who have had their butts kicked by the world a few times can more easily relate to the people caught up in the system than can those whose adult lives have been lives of extreme privilege. (Prosecutors will say, "hey, this isn't a life of extreme privilege. Look at how little money we make": privilege is like the water in the fishbowl; only by existing outside of it do the fish become aware of it.)

Those who can relate to the unfortunates whom they are prosecuting are more likely to prosecute with fairness, compassion, and justice. They may not be not the slavering attack animals that the public thinks it wants its prosecutors to be, but the truth is that better human beings make better lawyers on either side of the bar.

The life experience that is important in a good prosecutor is indispensable in a judge (and no, seven months halfheartedly taking court appointments between leaving the Office and becoming judge doesn't count). The fairness, compassion, and justice that make a prosecutor a better lawyer should be minimal qualifications for a judge.

At least two of the four Republican candidates for the 174th have life experience outside of academia and government. The two that I know of are Terrance Windham and John Jocher. John Jocher will be an outstanding judge (I suspect that Terrance would as well, but I don't know him as well as I know John); if you get a chance, meet John, and judge for yourself whether I am right.

Is there a Prosecutor Missing?

I was driving down 19th Street in the pouring rain this evening when I saw a young man in a flannel shirt crossing the street -- about a block up. He had the sort of odd gait that I associate, for some reason, with brain damage. He started giving the finger to passing cars. As I got closer, I waved to him. He started angrily giving me both fingers. I waved some more, and we slowly passed each other by, he emphatically flipping me off and I smiling like a friendly idiot and waving.

Ignorance is Strength

Prosecutor AHCL contributes to a vast sea of inanity -- inanity almost beyond belief; a sort of naive inanity that could only ooze from the keyboard of (dare I say it?) a prosecutor -- when she writes about Why I'm Concerned About Writing. After the Cliff's Notes version of George Orwell's 1984 (which she admits never having read), AHCL writes:

Well, Big Brother is watching now, and the effects are being felt even by non-lawyers.

Excuse me? Is this something new? What rock have you been hiding under for the last six years, four months, twelve days? Ever hear of the "USA PATRIOT" Act? And are you somehow under the impression that lawyers were more susceptible to being spied on by the government than non-lawyers?

She continues:

In PeggyO'Hare's article this afternoon, she wrote the following statement:

In court papers filed Monday, (Lloyd) Kelley gave a list of people he plans to call to the witness stand, including Rosenthal; prosecutor and Republican DA candidate Kelly Siegler; Siegler'shusband, Dr. Sam Siegler; Rosenthal's executive assistant Kerry Stevens; his chief investigator John Ray Harrison; his political consultant Allen Blakemore; and prosecutor Mike Trent.

Now correct me if I'm wrong, but didn't this lawsuit start over an issue with the Sheriff's Office? Now, I've got absolutely nothing to do with this law suit, and God knows I'm glad for that. I don't pretend to have the inner-understanding that the parties involved do (LOOSELY TRANSLATED: "Please nobody subpoena me."), but I'm having a hard time seeing how all these folks are getting roped into a case involving the Sheriff's Office, when none of them seem to work for the HCSO. Chuck subpoenaed? Maybe. But the rest? And can somebody explain to me how in HELL SamSiegler got involved in this mess?

I just don't get it. I don't understand what the criteria is before your private matters become public.

The elected District Attorney of Harris County, Texas was ordered to produce a number of emails in discovery in the lawsuit; instead of turning them over he deleted some 2,500 of them. The hearing to which Mr. Kelley intends to subpoena Mrs. and Dr. Kelly Siegler, Ms. Stevens, Mr. Harrison, Mr. Blakemore, and Mr. Trent is a contempt hearing.

Mr. Rosenthal could be fined and jailed for doing something other than the law allowed. An analogous proceeding with which AHCL is familiar is, naturally, a criminal prosecution. If Mr. Rosenthal's close friends and associates have relevant testimony -- if, for example (and this is just the first thing to pop into my head), they are able to shed some light on what might have been in the deleted emails -- Judge Hoyt will let Mr. Kelley question them about it. (If they are called to the stand and don't have anything to contribute to the court's understanding of Mr. Rosenthal's alleged contempt, he'll shut them down and shoo them off the stand. United States District Judge Kenneth Hoyt is not likely to let Mr. Kelley put on a political dog-and-pony show in his courtroom.)

Anyway, that's a roundabout way of showing that one circumstance in which your private matters may well become public is if you or your associates are accused of breaking the law.

Incidentally, does AHCL think that subpoenaing people to a hearing in federal court is such a great invasion of their privacy? Has she never requested that a judge sign a search warrant for a person's home? Called a reluctant member of an accused's family to testify? Issued a grand jury subpoena for someone's medical records? If AHCL stops thinking of her boss as just a witness in a lawsuit filed against the Sheriff's Office, and starts thinking of him as a witness who is accused of tampering with evidence, then Mr. Kelley's subpoenas might make more sense to her.

AHCL says that scares her. Well it should. It should even though the power being wielded by Mr. Kelley is tiny compared to that wielded by every felony prosecutor down at the courthouse. Our private lives are not private. They haven't been for years.

How many of you think your medical records are private? When I argued that Texans' expectation of privacy in their medical records (there is little more private than medical records) was reasonable, the Harris County DA's Office sent someone down to argue that it was not, and won that argument on reasoning that would make Thomas Jefferson weep.

There are people who fight, at the expense of safety, for the individual's right to be left alone, and there are people who fight for safety at the expense of that right. The Harris County DA's Office (that'd be the Office that AHCL works for) is decidedly on the "safety" side of that fight. The thing about government interference in our privacy is that it seems like a reasonable price to pay for safety, until you see that it might affect you. Harris County prosecutors whingeing about the invasion of the privacy of their boss's inner circle might do well to reflect upon the times that they have successfully argued that the need to enforce the law trumps the individual's right to be left alone.

AHCL goes on: "I'm hearing horror stories about more and more open records requests hitting the D.A.'s Office every day." Horror stories? Open records requests should serve as a healthy reminder to government employees that the ultimate boss is the citizen, and that the boss is generally entitled to find out what his employees are doing with their time.

If I send you an email, it's no longer my private matter. It's between you and me. If someone then gets some reason to look into your emails or if you decide that you don't care and pass it on, there's not a damn thing I can do about it. If I didn't want to risk someone else reading it, I shouldn't have sent it. And if the employees don't want the boss to read their emails, they'd better not send them using company computers, or the company email server, or even the company internet connection.

If the boss asking more questions about his employees' behavior is a "horror story", there's something wrong with the way the company is being run. But we knew that.

Protest too Much?

Harris County prosecutor Vic Wisner writes in public explanation of his dismissal of the grand jury's indictment against Texas Supreme Court Justice David Medina:

My decision to dismiss the indictments

Without violating my ethical restrictions on commenting on pending investigations, I would like to explain the following to the public: Regardless of my personal belief in the merits of a case, I cannot ethically proceed forward if I believe the prosecution will not survive an instructed verdict of not guilty and be an exercise in futility. I do not, nor should any prosecutor, conduct show trials.

I am addressing the following issues hypothetically: If a prosecutor believed that a suspect was likely guilty but the guilt could not be proven, the prosecutor would be foolhardy to proceed to trial. This would be especially true at a very early stage of an investigative proceeding with a decade remaining to file charges. Additionally, a suspect may engage in dishonest or immoral conduct that falls short of committing a crime. A grand jury indictment means the grand jury believes that they believe that there is probable cause, it does not mean that there is legally admissible, competent, or persuasive evidence to prove a crime in open court.

I have never been involved in a situation like this before, likewise our office has never been under the scrutiny it is now. I know that similar situations occurred when Mr. Holmes was the district attorney. I also know that Mr. Ryan was the foreman of a previous grand jury which returned several indictments of public officials against the wishes of the prosecutor. They were of course also immediately dismissed. It is sad that actions that were once seen as ethical and demonstrative of prosecutorial independence are now viewed by some as dishonest and cronyism. Unfortunately that is the world I now work in.

For the record, if I'm ever murdered my vengeful ghost will want Vic to prosecute my murderer. He might not get the max, but I don't think that one of Vic's faults has ever been that he was too soft on people he believed to be wrongdoers. It's a shame that the DA's office is so far off the rails that a career prosecutor with no political ambition outside the office has to explain to the public the exercise of his discretion, but the DA's office hasn't merited the confidence the public has in it in years; the public is only realizing it now. It's time for big changes over there -- the kind of changes that will only happen with new leadership brought in from the outside.

Damning with Faint Praise

From the anonymous prosecutor blogging at Life at the Harris County Criminal Justice Center: "The defense bar of Harris County does an equally good job. They defend their clients rights, and I've never seen a defense attorney who believed in his client's innocence give up without a fight."

Well alrighty then!

The Uncashed Check

The Six-Figure Negative Fee

Here's an interesting one: The Conroe Courier reports a half-million dollar civil verdict against a criminal lawyer in Montgomery County, Texas (the county to the north of Harris County) whose client accused him of extortion. Apparently the lawyer charged the client $1000 for a motion to revoke probation on a felony DWI case and then, after the hearing, demanded another $5,000. Details are sketchy, but there was an allegation that the lawyer passed a message along to Hernandez "mentioning prison as a consequence".

The jury took exception, found the lawyer liable, and awarded $500,000 in actual damages. They were scheduled to begin deliberating punitive damages when the lawyer agreed to pay $100,000 in settlement.

Is it Racist?

Anonymous Harris County prosecutor AHCL, in a post that illustrates the need that she remain anonymous, wrote yesterday about African-American Jurors, Batson, and the D.A.'s Office. She said,

prosecutors are very much aware of the fact that probably every African-American member of a jury panel has been treated like crap at some point during his or her life by a member of law enforcement, or perhaps even a District Attorney's office

and argued that

if a prosecutor is wary of an African-American potential juror, its going to be because that the prosecutor knows the lengthy history of wrongs committed against African-Americans by law enforcement. That prosecutor doesn't want it to affect his case.

. . . therefore, the argument goes, it is appropriate, and not necessarily racist, for a prosecutor to use a peremptory challenge against a black potential juror because of his race.

How can the fact that the vast majority of black potential jurors have suffered at the hands of a concededly racist system justify excluding blacks from jury service? AHCL's position seemed reasonable though worrisome to me at first glance, but on further reflection it's flat-out wrong. A prosecutor has a duty to seek justice -- a prosecutor can seek his idea of substantive justice (a conviction) but can't forsake procedural justice to do so.

Regardless of the purity of the prosecutor's intent, excluding blacks from jury service perpetuates systemic racism and that, no matter what the verdict, is unjust.

Mean Girls in the Blawgosphere!

I wrote recently about "Mean Girls" in the courtroom -- lawyers (in my example, older female prosecutors, but Mean Girls can be any age or gender). Now we have Mean Girls in the practical blawgosphere (would it be uncharitable for me to suggest that AHCL accidentally brought the Harris County DA's Mean Girls with him when he started blogging?). Some anonymous person -- apparently a Harris County ADA -- has posted nasty ad hominem attacks on me in comments on two prosecutors' blogs: Ken Lammers's CrimLaw and AHCL's Life at the Harris County Criminal Justice Center .

Ken, who has three rules for his blog ("(1) civility; (2) no politics; and (3) civility") deleted the comment before I could see it (a high-class gesture), but I got a taste of it from AHCL's blog, where AHCL chided our anonymous friend gently. Then I spent a few hours self-indulgently upset and angry about it (I'm not in trial, so I had the luxury) before getting over it. I still have some thoughts about it, though, which I'd like to share to close out the chapter.

All criticism is autobiographical. The trick is in determining what the critic is saying about himself. I truly have no idea who could be behind the comments; that bothered me more than the untruth. So what do our anonymous friend's comments say about him?

First, he thinks the job is the person. In my efforts to defend my clients and my outspoken criticism of the criminal "justice" system and the Harris County District Attorney's Office, he sees "personal animus". The truth is that I like prosecutors just fine. Don't tell them this, but I like Kelly Siegler, Mike Trent, "Agg" Rob Freyer, Murray Newman . . . I even (believe it or not) like Vic Wisner!!!! I call several prosecutors "friend", I seem to get along with the vast majority of them, and I have great sympathy for the rest (there, but for the grace of God, go I).

When a prosecutor thinks that justice demands that my client be convicted and imprisoned, it's easy for me to butt heads with him; a few times things have gotten ugly between me and my adversaries in trial (usually because they, or more likely I, have gone overboard in zeal), but I've always been able to get over it. When prosecutors -- even those whom I thought were most unreasonable in the Office -- have left to join the defense bar, I've welcomed them and encouraged my brethren set aside animus to do the same.

If you're a prosecutor and I see you in the courthouse, I probably seem unfriendly because I'm doing my best to save my clients from whatever fate you think they deserve. But if you're a defense lawyer and I see you in the courthouse, I probably seem unfriendly because I'm working intently to save my clients from whatever fate the prosecutors think they deserve. It's not personal to me, and if it's personal to you there's not a whole lot I can do about that.

Second, he's been around the courthouse for a long time. I've been down there for about 13 years, and he calls me a newbie. That'd make him at least a felony chief.

The prosecutors whom I've clashed hardest with exchange greetings with me in the hall, and they act like they've gotten over it too. So, third, our anonymous friend either hasn't actually dealt with me, or he's a hypocrite who conceals his own personal animus from me in the halls of 1201 while venting in the blawgosphere.

Fourth, he doesn't know me personally. Our friend says that I'm no Racehorse Haynes (conspicuously), no Dan Cogdell (absolutely), and not the "be-all, know-all of the profession" (unquestionably), as though that is a putdown of some sort. What I am, instead, is an ordinarily-talented guy with a high IQ, some really good training, and a bit of experience who truly believes that people should be free, and who tries to strike a healthy balance between family and the fight for freedom.

Fifth, he's not familiar with my record. He asks in his comment successes I've had; if he had asked in the Office instead, he would have learned that my last three felony jury trials in Harris County resulted in defense verdicts (probation on a murder case, not guilty on a meth lab case, and not guilty on a two-kilo cocaine case). Further afield, last year I saved a life in Victoria County. Even going back further than that -- five trials, ten trials, twenty-five trials -- and farther afield -- other Texas counties and federal courts as far away as Manhattan -- I am proud of the work I've done. Since I work for continuous improvement, though, I think my recent victories are most representative of my standing as a trial lawyer.

Finally, and most importantly, our anonymous critic is scared. Only a frightened person would write such things, and only a coward would do so anonymously (not all frightened people are cowards: a coward is a frightened person who does the wrong thing because of his fear). When I criticize someone publicly, I sign my name. (I will occasionally vent about someone privately to friends, but I'm trying to stop doing even that). I know it's a scary time to be a prosecutor, especially if your job is how you define yourself. A day of reckoning may be fast approaching, and the prosecutors of our anonymous commenter's vintage are the most likely to be first against the metaphorical wall.

Most prosecutors go from high school to college to law school to the DA's office, with no experience in the real world. Unlike the people they prosecute and the people who defend those people, they have never experienced the insecurity of the real world. Now a lot of prosecutors who a month ago thought they had an assured job for life, with health insurance and a juicy pension, are facing the possibility that everything might not go their way. (Could this be a lesson in empathy?)

I feel great compassion for our anonymous critic, as well as for the rest of the prosecutors whose careers have suddenly become uncertain. The job is not the person. If you're a prosecutor, and you beat me in trial, I'll shake your hand and say "nice job"; if I beat you, I'll do the same. I don't agree with much of what you do, but I know that we don't choose who we get to be in life, and I recognize that with a slightly different upbringing I might well be trying to put people in prison. If you decide to leave the Office, or if the Office decides that you should leave, I'll welcome you to the defense bar (I'll be president of the Harris County Criminal Lawyers' Association come May) and you can show me and the rest of the defense bar how a defense lawyer is supposed to defend his clients without his adversaries taking it personally. I look forward to the lesson.

Post Hoc Ergo Propter Hoc?

We lawyers are supposed to be reasonable, logical folk. We're supposed to resist logical fallacies like post hoc ergo propter hoc. But sometimes it's just too hard.

For example:

• 1987 - 2007 Prosecutor Kelly Siegler spends 21 years in Harris County DA's office;
• December 27, 2007 Harris County DA Chuck Rosenthal is brought down by disclosure of emails;
• January 2, 2008 Siegler decides to run for Harris County DA;
• January 17, 2008 Siegler announces that changes need to be made in Harris County DA's office.

It's hard to resist concluding that the announcement that changes need to be made was a result of the decision to run for DA.

Here's another one:

• December 27, 2007 Harris County DA Chuck Rosenthal is brought down by disclosure of emails;
  
• January 8, 2008 the emails are widely disseminated.
• January 9, 2008 Harris County Sheriff Tommy Thomas changes email retention policy so that all emails are deleted within two weeks;
• January 10, 2008 Channel 13 News reporter Wayne Dolcefino reports his investigation into the fact that Leroy Hermes the architect with the contract to build a new jail (which Thomas signed off on) also helped with the design of Thomas's million-dolllar (being a cop is good business!) ranch house.

It's hard not to conclude that the change in Harris County's top cop's email policy was a result of the wide dissemination of Harris County's top prosecutor's politically-devastating emails, possibly combined with the then-pending news investigation of the interesting relationship between Leroy Hermes and Tommy Thomas (and, incidentally, other county officials with input into the jail contract).

This one mystifies me, though:

• December 27, 2007 Harris County Republican DA Chuck Rosenthal is brought down by disclosure of emails;
• January 10, 2008 Republican Texas Attorney General Greg Abbott announces a criminal investigation of Rosenthal;
• January 17, 2008 Republican Texas Supreme Court Justice David Medina is indicted, despite the best efforts of Assistant DA Vic Wisner, for tampering with evidence by a Harris County grand jury; his wife is indicted for arson;
• January 18, 2008 Rosenthal dismisses all charges against Medina and his wife.

This from the office that blames the grand jury for no-bills in killer-cop cases, and hides behind the jury in other indicted cases. Don't get me wrong: I think the DA's office should absolutely dismiss cases in which further investigation reveals that the grand jury likely got it wrong, or that there may be probable cause (the grand jury's standard) but not proof beyond a reasonable doubt.

But here the dismissal was immediate -- it was announced the day the indictment was handed down. If Rosenthal hadn't been disowned by the Republican leadership, the political motivation for the dismissal would be more clear. On the other hand, if Rosenthal hadn't been disowned by the Republican leadership, the dismissal would have been a politically-dangerous move in an election year. Maybe someone else can shed some light on how Rosenthal might benefit from dismissing Medina's case. Or maybe he doesn't, and he dismissed it because it was just the right thing to do -- part of "literally and figuratively" getting his house in order?

Another Popularity Contest

The anonymous AHCL is seeking nominations for the Hector Heathcoat Award:

The Hector Heathcoat Award is dedicated to the "Unsung Heroes" of the CJC. We are starting out with two categories - the unsung defense attorney and the unsung prosecutor. Sure, Rusty Hardin and Dick DeGuerin and Kelly Siegler all get a lot of attention as being great attorneys, but who are the ones the we know are also great attorneys that don't get near the recognition in the media that they deserve.

The idea of an award for the unsung heroes of the Harris County Criminal "Justice" Center is a great one. In fact, the Harris County Criminal Lawyers' Association already gives an annual Unsung Heroes Award to a defense lawyer because, unlike the DA's office, the HCCLA actually cares about its members (sorry, I couldn't resist). Last year's HCCLA award went to Vivian King.

Here are my three nominations for the Hector Heathcoat Award for unsung defense lawyer:

• Tyrone Moncriffe
• Cheryl Irvin
• Danny Easterling

HCCLA gives its award to a defense lawyer chosen by consensus of the board of directors. AHCL is taking a different approach: He'll start a poll on Sunday, and have voting through the next week (and then repeat the process for unsung prosecutorial heroes). AHCL, a relative newcomer to blawging hasn't seen the practical blawgosphere's reaction to a popularity contest: ballot-box stuffing and relentless politicking by people who want votes for their friends on the one hand, and griping about how a poll is no way to actually honor people for their good work on the other.

Of course, none of the HHA nominees are likely to be bloggers themselves, and the pool of people who really give a damn about the great lawyering at the Criminal "Justice" Center is minuscule (fewer than a thousand people, I would estimate). But still, AHCL, don't leave the decision up to the fickleness of internet democracy. Have some backbone. Accept nominations and then make the decision yourself.

Four out of Four Candidates Agree: Change is Needed

Per the Chronicle:

In Wednesday's downtown forum [of Republican candidates for Harris County District Attorney], sponsored by the Houston Professional Republican Women, [Kelly] Siegler said she would make the district attorney's office more transparent to defense lawyers and the public.

"It will not be an office with prosecutors that win at all cost," said the chief of Rosenthal's special crimes bureau.

Kelly recognizes that change is needed, and says she will change things. That's good, right? Well, yeah, but . . .

Siegler also said she would first solicit reform ideas from fellow prosecutors. "We know what's wrong. We know what's broken. ... I am the only one who has worked there the last 21 years. I know how it it operates."

So she'll ask her fellow prosecutors for reform ideas. Great, except that these are the people who made the Office what it is, and who . That's like asking the fox for ideas on improving henhouse security.

If Kelly Siegler doesn't already know what needs to be done to fix the Office, she never will. Kelly has already had 21 years to "solicit reform ideas" from fellow prosecutors (not that she would need to solicit them -- those folks talk!) and to try to implement reform.

If Kelly believes that changes need to be made to the office, she will be able to tell the voters now what needs to be changed. She won't need to solicit reform ideas from political advisors or fellow prosecutors.

If Kelly Siegler truly has an interest in reforming the Office, it'll show in her actions before she was a candidate. She'll be able to point to the specific things that she's done over the past 21 years to reform the office. People will remember, and there'll be a paper trail of changes that she suggested that weren't made. Kelly was, for a time, in charge of "Professional Development" at the Office -- a perfect position from which to fix what is broken.

If Kelly's just saying what she thinks is expedient to get elected ("screwballs and nuts"), she won't be able to point to things she's already done to reform the office. People won't have any memory of her doing so, and there won't be a paper trail.

The other three candidates might have no idea what needs to be changed, but at least they're not acting under the illusion that they will get good ideas from the very prosecutors whose jobs are at stake. (Remember: the theme of Kelly Siegler's campaign announcement was that talented prosecutors could be swept out if a candidate from outside the DA's office wins.)

(Incidentally, if any of you hear of other events at which the candidates are speaking, please drop me a line. I'd like to hear their ideas straight from the horses' mouths, rather than from the press.)

Mean Girls in the Courtroom?

Here I mentioned "the usual older-female-prosecutor head games" that Kelly Siegler unsuccessfully employed against me in a two-kilo cocaine trial. Robert Guest commented, inquiring:

What are older female prosecutor head games? Like the jedi mind trick?

Not exactly.

"Older-female-prosecutor head games" are attempts by older female prosecutors to throw younger male defense lawyers off their game by finding and exploiting their insecurities.

This is usually done either with offhand remarks ("of course you know that . . ."), helpful advice ("if I were you, I would . . . ) or friendly questions ("are you sure you want to . . .?").

The idea is to raise the adversary's self-doubt. It's generally much more efficient (and more fun) to convince your adversary to defeat himself than it is to try to defeat him. In the courtroom, if the adversary can't be persuaded to defeat himself, trying to defeat him is not foreclosed as an option.

I suspect that the head games often work, because if they didn't work people probably wouldn't keep trying them. Trial lawyers are mostly very insecure despite (or as revealed by) their bluster. Many of us are trying desperately, without realizing it, to please our mommies and daddies. (How do I know this? It's like being the sucker in the poker game: if you don't see it, you're probably doing it.) These head games, I suspect, play on their victims' desire for mommy's approval.

I wonder about four things (maybe my readers can advise me):

• First, what is the cutoff for "older" female defense lawyers? I haven't observed these tactics from lawyers my age or younger, but from some only a little older than me (when I say "older" I don't mean it as a euphemism for "old").

• Second, do older female defense lawyers play the same games with prosecutors? I expect that they do.

• Third, do older female lawyers play the same games with younger female lawyers? I haven't investigated, but I suspect so.

• And fourth, do older male lawyers play the same games? Generally, I think not. Men and women are fundamentally different. They think differently, they communicate differently, they try cases differently, and they fight differently (also, they bully differently, which I think might be the best analogy for differing styles of courtroom gamesmanship).

We of the weaker sex have a lot to learn from women. While a male lawyer beats his chest, trying to convince his adversary that he is the best, his female adversary is quietly and gently trying to raise his self doubt and make him question whether he's any good at all. The man's tactics are risible to anyone who can see what is going on (and, generally, anyone who is not trying to beat his own chest can see what is going on). The woman's tactics are no less laughable to anyone who can see what is going on, but recognizing them requires a greater measure of objectivity and self-awareness.

(You were expecting what, political correctness???)

Harris County DA's Diversity Policy is "Pretty Much Ignored"

The general counsel for the Harris County DA's office says that the DA's operations manual provision related to diversity and equal employment, which has been policy since 1993, is "pretty much ignored as far as our actual hiring practices are concerned."

New Harris County Criminal Justice Blawg

Life at the Harris County Criminal Justice Center, by an anonymous criminal lawyer who started blogging on January 8th, 2008, "genuinely concerned with the way the media displays our local criminal justice system".

What Tangled Webs . . .

The Houston Chronicle has an interesting column today by Lisa Falkenberg, in which she suggests that when Kelly Siegler described the 45,000 members of Houston's Lakewood Church as "screwballs and nuts" she might not have been being entirely candid with the court.

The context: Kelly was trying a capital murder case. The defense made a Batson challenge, alleging that it appeared that Kelly had used a peremptory challenge to remove Matthew Washington from a pool of prospective jurors because of his race (Black).

When the defense makes a Batson challenge, the prosecutor must provide a race-neutral reason for striking that person. If the real reason for the strike is the person's race, the prosecutor might well be tempted to provide whatever race-neutral rationalization jumps into her mind, whether it is entirely true or not.

Courts will accept just about anything as race-neutral justification for a prosecutor's peremptory challenge of a minority juror. It doesn't have to make a whole lot of sense. And, since nobody can read the prosecutor's mind, the prospective juror (who has a right to serve regardless of his race) and the defendant are at the mercy of the prosecutor.

Was Kelly Siegler inventing a race-neutral reason to strike Mr. Washington (who, by Lisa Falkenberg's account, viewed the death penalty favorably)? Or did she really think that all of the members of one of Houston's largest congregations are screwballs and nuts, regardless of their race? (Incidentally, striking a juror because of his religion is unconstitutional too, but most lawyers aren't aware of this.)

When I first read of the incident, I thought that Kelly in all likelihood didn't really think of all Lakewood members as screwballs and nuts; I suspect that was probably the reaction of most criminal trial lawyers. But who knew that the public would care? The public seems to expect some rule-bending from their prosecutors in the name of obtaining convictions. Which would be worse in the eyes of the public: that Kelly was telling the truth about her opinion of Lakewood Church, or that she was lying to try to ensure the death penalty for an evildoer?

If the answer is that it would be worse if Kelly was lying to the court about her opinion of Lakewood Church -- if the public is going to hold professional ethical breaches against the candidates for D.A. -- then this becomes a different campaign.

I have faced Kelly Siegler in the courtroom only once and had no complaints about her conduct (she was sitting second with a young prosecutor on a kilo case; she tried the usual older-female-prosecutor head games on me; I am immune, and I won), but if professional ethics are important to this election, I expect some of my colleagues who have dealt with her directly more than I may weigh in.

The Heart of the Matter

Veteran prosecutor, to veteran defense lawyer, in the wake of the moral collapse of the Harris County DA's office:

Now we're all sleazy lawyers.

Welcome Language Fans

Defending People has received lots of hits today from the Language Log. It's a good match, I think; words are criminal defense lawyers' tools, and at Defending People we love words and are not shy about using them. We're not even above making up a word, on occasion, when there isn't already one that works.

Criminal lawyers (on both sides of the bar), like many other professionals, have their own argot. We office together (a coinage that, according to Clifford Irving [reliable source, right?] Houston's criminal defense bar created) instead of forming partnerships because we don't want to be conflicted out when codefendants come in needing representation.

Once we get a client, we enter an appearance and start going to court appearances. At these settings, we sometimes have to plead clients to agg time (that is, with an affirmative finding) or, if they're lucky, to non-agg or maybe to deferred. The difference is that they might be parole-eligible earlier if they take non-agg time than if they take agg time. We might even go open to the judge or, in other words, plead without a rec. If my guy or my hero has been in trouble before he might be enhanced, or if we're charged with our third felony, we might be habitualized or a habitual, looking at 25-to-life.

You see, we don't talk about sentences in terms of "years in prison"; instead in felony court it's five to do (or a nickel) or ten to do (or, of course, a dime) or simply life. In misdemeanor court it's 30 or 60 or 90; sometimes it's 120 in county. In felony court, as well, sometimes our clients plead to county time. Our language is context-sensitive -- 30 in misdemeanor court is, of course, very different from 30 in felony court.

In most districts there's not as much plea-bargaining in federal court; sometimes we can do some charge-bargaining and sometimes we have to choose between going to trial and pleading to the indictment. If we are convicted in federal court, the probation department writes a PSI or PSR. Some defendants in federal court flip or roll in an effort to get a 5K1. When one person is working on a 5K1, sometimes he'll invite other defendants to get on the bus and share the benefit.
When cases don't plead, we try them. If we don't want to go to trial, we might ask for an adjournment (in New York) or a reset or continuance (in Texas); if we're asking for a reset on a day when the case is not on the docket, we're asking to off-docket it. Once we're up though, in New York we're on trial and our clients are in trial; in Texas it's the other way 'round. We voir dire the jury, pronounced vore dire south of the Mason-Dixon line and vwahr deer north of it. Before the judge's voir dire in some jurisdictions we can ask for a shuffle. After the other side's witness testifies, we take him on cross. If he's an expert, we might interrupt the other side's direct to take him on voir dire before our adversary passes the witness. Then we might object to foundation. Or our objection might be 402 or 403 or even 404(b), among many others. If our adversary's objection to one of our questions is sustained, we might make a proffer or a bill to show what the witness would have said. It's important to make a record in case we have to take the case up.
Some cases are whales and others are dogs. If the case is a whale, then a trial might be a slow plea; the best that we can hope for is to beat the rec. If we fail to beat the rec, we hope to hang them up, but the judge will probably give them an Allen charge before declaring a mistrial. If the jury gets a 38.23 charge in Texas, it's more likely to give a two-word verdict, which is a good thing for the defense, but a bad thing for the prosecution. A murder case that has a tail might be a misdemeanor murder. On the other hand, a small-time offense that the prosecutor is gung-ho about might be a capital misdemeanor. There's a little snapshot of our special language. I'm sure some of my fellow defenders of the citizen accused will chime in with something I've missed. The best of us, even if we don't provide (or commit) IAC, will sometimes make mistakes. Enjoy the blog.

The Rosenthal-Siegler DA's Office (?)

I've referred here a time or two (okay, at every opportunity) to the Chuck Rosenthal-Kelly Siegler DA's Office. An anonymous commenter on Defending People (a prosecutor whose identity is known only to her and me) says that's not fair -- that Kelly doesn't share responsibility for the missteps of the Chuck Rosenthal administration. I told her that I was willing to be convinced, but that it sure appears that Kelly has been a member of Chuck's inner circle, and in a managerial position in the office (including a stint in charge of "professional development" -- training younger prosecutors), for seven years. Everyone in that office in a managerial position shares responsibility for the wrongs perpetrated by the office and by its prosecutors unless proven otherwise The presumption of innocence has nothing to do with it: when the captain runs the ship aground, the other officers had better be able to explain where they were and what they did to prevent the allision, if they want to keep their jobs. It appears that in recent days Harris County prosecutors have become a large part of my readership. This morning in the courthouse no fewer than four prosecutors commented on it (nice blog, or I read your blog, to which I cannot but reply, "well, thank you!"). On her campaign website (look! a judge!) Kelly doesn't mention Chuck Rosenthal once. I'm not sure that will be enough to dissociate her, in the voters' minds, from Chuck.

So, to my new prosecutorial fan base, here's the question: is it fair for voters to hold Kelly Siegler's close professional relationship with Chuck Rosenthal, as well as her positions of rank, respect, and power in the Office, against her when considering her qualifications as a candidate for District Attorney? Or does the buck somehow bypass Kelly on its way to stopping at Chuck? Why or why not? Prosecutors? Kelly? Anyone?

The Prosecutor's Reply

The prosecutor whose "Canadians" email I wrote about here and here responds:

Vivian King knows NOTHING about "the real story." It is probably a waste of breath to defend my reputation since it sounds like a portion of the defense bar has made up their minds, but to me it is never a wasted effort to defend my reputation. So let's start with the factual inaccuracies in Vivian's version:

1. There were no numbers (3) and no quote marks in the original email. It said "some Canadians." That was the word that had been used by the trial prosecutor when I asked what the holdup was on his verdict, and I took him literally. More on that in a minute. Some folks may have seen the Fox News report that made it look like I used quotation marks, which, had I done so, would be highly incriminating since that often implies a double meaning, sarcasm, or some other intended emphasis. I did not.

2. Several black prosecutors did respond to the email with questions. Only then did I realize what I had inadvertently done. Prior to that, however, the prosecutor you speak of poked his head in my office, obviously upset, and asked me about it, then left. I called up to the courtroom later to ask the clerk something and heard his voice in the background. I asked what he was doing up there and they put him on the phone. He pretty much hung up on me. I didn't try to stop the clerk from doing anything -- I just wanted to know what was going on since I still didn't know the word had another meaning and could not understand his reaction at that point.

3. That prosecutor never confronted me. Instead, after I realized that he was offended and upset, I went to HIM and tried to explain in private that I was not a racist and had not sent the email out knowing the alternate meaning of that word. I apologized for offending him but attempted to assure him that it was inadvertent. He was initially unresponsive and would not accept my apology. We temporarily left it at that.

4. I did not report anything to my superiors about that issue, but I was called to the office of the trial bureau chief (Marie Munier at that time) to explain the email, which I did. She could see how upset I was and was satisfied with my explanation.

5. I later spoke to Joe Owmby and Troy Cotton about the situation. I wanted them to know that I did not harbor those beliefs and I wanted to make sure my reputation -- at least in the office -- wasn't damaged. I believe Troy probably spoke to the prosecutor who had been angry with me, because a week or so later, that ADA pulled me off the elevator and asked to speak with me. He acknowledged he had been wrong in his initial assessment, apologized, and said he should have accepted my apology sooner. I accepted his, we shook hands, and I considered the matter resolved.

6. I never reported any of that interaction to my superiors and no-one was blackballed on account of anything I did. That particular ADA, a talented trial attorney, was promoted on schedule and left the office on his own terms a year or so later. He may have had some other issues (assaulting an ADA from Dallas at a conference, getting into a verbal altercation with an HPD officer, etc.) but I have no reason to believe the email incident affected his career in any way.

7. I don't think Lyn McClellan was involved in this incident at all, to my recollection.

So Vivian concludes I "definitely" knew what the term meant, apparently in a deliberate effort to hurt the feelings of the black prosecutors in the office.

Mark, let's take a step back here. Do you guys think I'm crazy? Am I insanely stupid enough to send a racial slur to 250 LAWYERS? Litigious, complaint-ready lawyers, some of whom are African-American?? That is just absurd.

Some people have pounced on my explanation and said there's no way I could have meant the nationality literally. Some have said that Canadians couldn't possibly serve on our juries because they are not U.S. citizens. This is not true. All that is required to serve on a jury in Harris County is that you have a TDL and reside in the county. We also have people born outside the U.S. on our panels all the time. Some naturalized, some probably just residents.

Having said that, I agree it would be very unusual to have more than one Canadian on a jury and in retrospect I realize I should have questioned this more. But in one of those strange, unlucky confluences of events, I had just returned from a trip to Victoria, Canada, where I had read several news stories that had highlighted how differently (read: leniently) Canadians feel about crime. I had that in my mind when the trial prosecutor told me that the holdouts were Canadians. I repeated the term back to him because it struck me as odd, and he repeated it again without further elaboration. I then naively accepted it as literal, something that in hindsight I should not have done. But I will repeat what I have said over and over. I HAD NEVER HEARD THAT WORD USED TO MEAN ANYTHING OTHER THAN CANADIAN AND WAS UNAWARE THAT IT CAN HOLD A RACIST MEANING.

Can I prove this? The closest I can come is to tell you this: I did not delete that email or any others following up on it. One minute after I sent it out, one of our investigators responded "Damn Canadians." And I sent a reply to him that said "Hockey? Yes. Bacon? Yes. Law enforcement? No!" I was still talking about our friends north of the border, not blacks.

Do I feel silly? Yes. Stupid? Yes. Naive? Yes. Embarrassed? Yes. Ashamed? No, not really. I'm not ashamed to be ignorant of every "cryptoracist" word out there.

Mark, pretend I'm a criminal defendant and apply the same reasoning we use in trials to determine intent. Do my actions before and after the "offense" bear out a guilty mens rea? Just look at the efforts I went to, not only now but also five years ago, to undo the damage I unwittingly caused. Would a person jaded and insensitive enough to knowingly send out an all-prosecutor email with a racial slur in it really CARE about what African-Americans thought? Hey, even you agreed I was credible in the raw interview footage you saw. That's because I'm TELLING THE TRUTH.

I can't answer for anything anyone else has said or done, and I make no attempt to do so. Nor will I speculate on what the original user of that term meant. All I can speak for is my own words and actions. I DIDN'T KNOW WHAT IT MEANT. If I had, I would never have put it in an email. Under oath, as God is my witness, this is the truth: I did not know what it meant.

Vivan wraps up her comment by suggesting that I treat black defendants or black attorneys differently. I do not. I generally tend to be somewhat aggressive as a prosecutor, and I probably dig in my heels too much on some cases. Over the years I know that I've made enemies by some of the things I've said and done. I'm sure some defense attorneys think I'm an a**hole. If so, fine, but I'm an equal-opportunity a**hole.

Your recap is no more than a summary of the misinformation Vivian posted. It is disappointing that she and Alvin believe what they do about me. I don't have anything against either of them. At any time, they could have come to me and I would have given them an explanation and an apology for ever making them think badly of me. I guess it's easier to blindside people on TV and call for their firing, or post things secretly on message boards.

Well I'm not hiding from anyone. If anyone wants to hear it straight from me or still has an issue with me, they are welcome to email me. But don't claim to know my innermost thoughts and my "secret attitude" when you don't. That's every bit as ignorant as racism.

I take this prosecutor's points well, and have removed his name from the post that he says is inaccurate. First, I don't know the truth, and don't want Defending People to be an instrument for destroying reputations. Second, whether this prosecutor knew the secret meaning of "Canadians" or was just passing on the word used by the trial prosecutor doesn't matter. This isn't about an individual, but about the culture of the Rosenthal / Siegler DA's office.