Dear Jim Leitner

Dear Jim,

By now you've probably read AHCL's blatantly pandering open letter suggesting that you endorse Kelly Siegler in the race for D.A.

I'm sure Pat Lykos's campaign is trying to get your endorsement as well.

I don't know who you'll endorse in the race between Kelly and Pat, or whether you'll endorse anyone.

If you keep quiet, Kelly will be hoping that the people who voted for you were voting for you as an experienced trial lawyer, and Pat will be hoping that the people who voted for you were voting for you as an agent for change. They will both, in other words, see in you the traits that they emphasize in their own campaigns.

Kelly hopes that the people who saw you as a leader will shift their votes to her, and Pat hopes that those who saw you as an agent for change will shift their votes to her.

The truth, of course, is that the DA's office needs both leadership and change -- more leadership than Pat has shown any ability to bring, and more change than Kelly has shown any inclination to bring.

You were the best candidate for the job because you would have brought both leadership and change. More importantly, though, you were the best candidate for the job because you are a truth-teller with a deep sense of honor.

(It was that sense of honor that kept you from filing the lawsuit that would likely have removed Kelly and Pat from the ballot, winning the race for you at a stroke. I encouraged you to do so, and when you declined I knew that you weren't going to win this race against a seasoned politician and a popular ADA. I would have felt let down, but it was hard to feel let down by the inevitable result of your finest quality. It is axiomatic that those qualities that make one most worthy of public office also make one least likely to attain it.)

You went into this race with ideas about changing the Harris County DA's Office. Whoever you plan to endorse, you're in a position now to get the candidates to commit to some of the changes that you have in mind. Take some time and think about the power you have to make the Office better. Both Pat and Kelly might now be open now to committing publicly to some of the things that you think are most important.

Still a supporter,

Mark.

Three Republican DA Candidates

Here are the Reasonable Doubt episodes featuring three of the four Republican DA candidates:

Kelly Siegler

Pat Lykos

Jim Leitner

The Rorschach Ink-Blot Debate

There was something for everyone last night; supporters of Kelly Siegler liked how she came out, supporters of Jim Leitner thought he clearly won. Supporters of Doug Perry saw a honest, nice man who would be the right guy for the job if the job were what he thinks it is: a CEO / ambassador position that doesn't involve leading 250+ trial lawyers. Even supporters of Pat Lykos thought their candidate looked most like a district attorney.

One of the two candidates who has never tried a criminal case (Doug Perry) took some heat for it. The other (Pat Lykos) got a free pass; I wonder if the candidates seriously believe that presiding over criminal cases as a judge is somehow equivalent to trying them as a prosecutor. It isn't.

Here (part I) and here (part II) is KHOU's video of the debate. Here is the Chronicle's coverage. Here, here, and here are AHCL's other posts about the debate.

Jim was unscripted, fluent, and passionate. Pat was the opposite, but had a big made-for-TV smile on. Doug Perry was a decent human being, a little out of his depth. Kelly seemed uncharacteristically nervous; she could have stood to have smiled a bit (though I did notice her holding back a laugh both times Pat said "rule of law").

Almost everyone seemed to agree that there were problems with the culture of the DA's office. Everyone but Kelly, who (for obvious reasons) argued that Chuck was the whole problem.

There is certainly a public perception that the Harris County DA's Office suffers from a culture of arrogance.

Is this perception well-founded (and therefore fair)? Yes. The Office has been opaque in recent memory, and every time its culture has come to the public's attention, arrogance has been revealed.

Is it fair to hold Kelly partly responsible for this perception? Absolutely. Kelly has been the single most prominent member of the Office in the last eight years; she rose to prominence in Chuck Rosenthal's Office. That Office is a bureaucracy. If Kelly had been an agent for change in Chuck Rosenthal's Office, or if she had even sought change, there would be a record -- a memo, an email, meeting notes -- of it somewhere. If she, a division chief (only the First Assistant and Chuck Rosenthal rank higher than her on the organizational chart), was not an agent for change -- if she didn't even try to change things -- then it's not unfair to hold her accountable for the DA's office culture, even if -- as AHCL insists -- Chuck kept his own counsel.

Is the public perception that the Harris County DA's Office suffers from a culture of arrogance accurate? As an outsider more acquainted with the office than most of the public, I've been saying so for years. (A search of my hard drive reveals that I first used the phrase "culture of arrogance" in writing in March 2006 when a young prosecutor berated a jury for its verdict, the jury complained, and the elected DA criticized the jurors for complaining. At the time I believe Kelly Siegler was in charge of the Office's Professional Development Program, which should have been instructing young lawyers in their ethical duties as well as winning at all costs.)

I think a culture of arrogance is an inevitable result of taking callow lawyers -- children, really, with no experience of the difficulties that most of the humans passing through the courthouse suffer every day (do I exaggerate? AHCL earnestly described January as the "the worst month of [ADAs'] professional lives") -- and putting them in charge of deciding which of those humans go to prison and which go free without ethical adult supervision.

Is it fair to hold Kelly partly responsible for this truth? Absolutely, and for the same reasons that would be fair to hold her responsible for the perception even if the perception were not true. Further, Kelly's own philosophy, stated in the public TV candidates' debate last week -- "our job is to decide who is guilty and then do everything possible to convict them" -- may play well with the voters, but it is not the law (as -- it pains me to say this -- Pat Lykos keeps saying), and it expresses the essence of prosecutorial arrogance

It is not only the defense lawyers and public who have noticed the arrogance of the Rosenthal-Siegler DA's office; judges have noticed as well. A judge who came to the bench directly from the Office (as though that narrows things down at all) commented to me recently that the uncertainty in the DA's Office might make some prosecutors less arrogant. "They need it," he said.

(The last six weeks of uncertainty, incidentally, have worked wonders on the prosecutors' arrogance. It is a rare public servant whose attitude is not improved by the realization that he serves at the pleasure not only of the Republican Party but also of the human beings who vote in the elections. The difference down at the courthouse has been conspicuous.)

As much as change is needed in the DA's office, however, Pat Lykos said nothing in yesterday evening's debate to convince me that she will bring better change than Kelly Siegler. I think Kelly would make a better DA than Pat Lykos. So why do I pick on her? Because for some reason I expect better of her.

Given that the debate wasn't likely to change anyone's mind, I thought of a question that I wish had been asked of the candidates:

If not you, then who? Who is the second-most-qualified candidate for the position you seek?

I've emailed the candidates to ask them.

The Mote and the Beam

When asked about the minority composition of the DA's office at last night's debate, Kelly Siegler stated that the DA's office has more black and hispanic lawyers than the bar as a whole. I suspect that she knows what she's talking about.

This made me wonder: how does the Harris County Criminal Lawyers' Association's diversity compare to the Harris County DA's Office's?

A Little Respect . . .

All five candidates for Harris County District Attorney were invited to speak today with the board of directors of HCCLA, the Harris County Criminal Lawyers' Association, after a board meeting.

Only one of them bothered to show up: Kelly Siegler. (C.O. Bradford had spoken to the board before Chuck Rosenthal's meltdown.)

[Edit: Jim Leitner and Pat Lykos say that they were not aware of the invitation. It appears that Kelly and Pat both sought to speak to the HCCLA Board and were both emailed invitations, but Pat's did not reach her. My initial statement that all five were invited was based on a miscommunication. Pat had also wanted to speak to the HCCLA Board, and Jim is an HCCLA member.]

Kelly knew darn well that nobody in that room was likely to vote for her in the Republican primary -- we're all either Democrats or Jim Leitner supporters or both. Even if we voted for her, she knows that we don't have enough political stick to make a difference in the Republican primary. [Edit: She also knew that HCCLA is not endorsing any candidate in this race.] But she came to talk to us anyway, because she wants to do a good job as DA and she recognizes that HCCLA represents an important group of stakeholders in the criminal justice system.

Kelly fielded some tough questions about her conduct in the Temple case, in which she applied for a bench warrant in one case to bring an imprisoned witness to Harris County so that she could interview him about another case in a different court. Kelly saw nothing wrong with this conduct, and seemed not to have considered the possible application of Texas Penal Code Section 37.10 to her behavior. "That's the way we always do it."

Aside from the interesting little question of whether "the way we always do it" is a crime under the Texas Penal Code, Kelly had some things to say that reduced my concerns that a Siegler administration would be four more years of the same.

"We might," Kelly conceded, "not be complying with Brady as well as we should." This was one of her reasons for promising to allow defense lawyers to copy offense reports.

Regarding pretrial diversion, Kelly said that she would work with the defense bar to agree on a general set of guidelines for people who might be eligible for pretrial diversion. These guidelines would be disseminated to the defense bar so that defense counsel would have a general idea of when their clients might successfully seek pretrial diversion. Then instead of having one person (currently the misdemeanor division chief [edit: for misdemeanor pretrial diversions, and the felony division chief for felony pretrial diversions]) decide who gets pretrial diversion, Kelly suggested that there should be 5-10 people on a committee making the decision. This would create consistency in the decision-making process [edit: over time].

When asked about unprofessional conduct among assistant DAs, Kelly seemed somewhat surprised to learn that such conduct was commonplace. She had no specific solutions, but promised an open door for defense lawyers to air their complaints.

Kelly also agreed to improve communication between the prosecutorial and defense bars by attending, with her upper management, regular meetings with the defense bar's leadership.

"We need to do a better job of explaining to new prosecutors that Brady includes inconsistent witness statements," she said, and offered to send prosecutors to Brady training sessions conducted by the defense bar, even though "we might not agree with you."

Kelly described the current Office policy of not agreeing to less than 10 days on first-time prostitution cases as "outdated and stupid." (I assume that she didn't think that the minimum should be more than 10 days, but we didn't discuss that.)

When discussing 12.44(a) time (the section of the Penal Code that allows the State to agree to county jail time for some felonies), Kelly said, "It's not our job to worry if the jail is overcrowded. If we want to 12.44(a) someone that's our business."

Kelly was able to give the first coherent explanation I've heard of the Harris County DA's refusal of summonses for class B marijuana cases: "It'd screw up the whole intake system."

Kelly promised a larger major fraud division, which would be better at investigating and working up the white-collar crime cases. This brought a smattering of applause from the defense lawyers.

One of her first priorities if elected would be to "take care of the groups that got their feelings hurt" by Chuck Rosenthal.

Kelly came out strongly against DAs lobbying against life without parole. That lobbying was because LWOP would result in juries assessing death less often; Kelly called it "wrong." (I'd've called it "heinous", but "wrong" will do in a pinch.)

Speaking of the death penalty, Kelly proposes changing the way the DA's Office decides whether to seek death. Instead of depending on a memo written by the chief prosecutor in whatever court the case happens to land in (a prosecutor who may not have tried a death penalty case), Kelly suggested that she would require the division chief to be familiar with the entire file, including mitigation evidence.

As I understood it, Kelly favored letting outsiders clean up the HPD crime lab mess.

Finally, Kelly said that Dallas DA Craig Watkins "has got some good ideas."

We didn't talk about racism in the DA's Office. Or about Mensa. This is by no means an endorsement. I still doubt that Kelly will bring as much needed change to the Harris County DA's Office as Jim Leitner. But I'm convinced that she'd be a good start.

If I had to choose today between Kelly Siegler and Pat Lykos, or Kelly and whatsisname Perry, I would choose Kelly. Today she showed the defense bar some respect, and a little respect, when you're a criminal defense lawyer, goes a long way.

Copies

Ask any Harris County criminal defense lawyer, and she'll tell you that criminal defense lawyers should have copies of offense reports. Ask any Harris County felony chief prosecutor whether the defense lawyer is right, and I'll bet (based on my highly-scientific survey of 9% of such chiefs) that you'll get the same answer.

If I could file a notice of appearance on a case in Harris County and immediately make a photocopy of the offense report, I would be able to spend less time reviewing the prosecutor's file, and the prosecutor would be able to spend less time making his file available to me. We would all be able to go about the business of practicing law with much less time wasted in note-taking. The prosecutors I've talked to agree.

So if defense lawyers here and elsewhere and prosecutors (and even AHCL [Is she a prosecutor or a defense lawyer? Only her hairdresser knows for sure!]) are in agreement that defense counsel should have copies of offense reports, what has the holdup been for the last umpty-ump years?

One possibility is that some of the 30 or so police agencies that the Harris County DA's Office takes reports from might object to the Office providing us with copies of "their" reports. I am guardedly optimistic about the candidates' recent announcement that they will allow defense counsel to copy offense reports; I won't be surprised to see whoever gets elected announce that after further consideration and study the idea no longer appeared feasible -- for example, because of resistance from police agencies.

What kind of resistance? One of my correspondents suggested that the police agencies might threaten to leave things out of offense reports -- to ambush defense counsel -- if they knew the offense reports were going to go to defense counsel. Indeed, he suggested that this might have been the scenario in which the DA's Office (under Johnny Holmes, if not earlier) forbade defense lawyers from copying offense reports.

If that was the police agencies' threat, it is a hollow one. I always love to have cops testify to things that weren't in the offense report. Every halfway decent defense lawyer has her patter for these occasions -- build up the officer's training and all of the reasons that it's important to write a complete and accurate offense report, including all of the relevant facts; and then reveal to the jury that facts X, Y, and Z weren't in the officer's report. Juries, I think, generally believe that the cops are making up the parts of their testimony that weren't in the report, and they stop trusting the police. So if police agencies started leaving out facts to hit the defense with at trial, it is the success of the prosecutions of their cases that would suffer the most. If the DA's Office learned that certain cops were deliberately omitting facts from their offense reports, it could stop taking reports from those cops.

There are other quibbles about providing offense reports to defense counsel. One is cost -- why should the State bear the cost of providing copies to defense counsel? The answer is that the State has picked the fight and shouldn't be surprised to pay a little to make sure the fight is fair. Aside from that, though, defense lawyers would be perfectly happy to pay reasonable copy charges for offense reports. Within a few years all of the offense reports will be available to the prosecutors in electronic form (most are already), so that there will be no cost in forwarding them to defense counsel.

Another quibble is that letting defense counsel copy offense reports might put Vulnerable Witnesses' information in the hands of Dangerous Defendants. The DA's Office has had a general de facto open-file policy for decades, though, allowing defense lawyers to take thorough notes ("but not word-for-word" -- they used to even refuse to let me take notes on my laptop) from offense reports, and we haven't had an epidemic of witnesses being intimidated and whacked.

The DA's policy against allowing defense counsel to copy offense reports was one of the smaller things wrong with the current and last administrations. It's heartening to see even the most anti-change candidate for DA come out in favor of changing the policy. But there are other policies that need change as well; time will tell if the candidates are interested in making these changes and strong enough to actually do so.

Chron is Clueless Again

The Houston Chronicle editorial board has endorsed Pat Lykos for DA. The column endorsing her regurgitates her campaign soundbites -- basically, she sold herself to them. There's a lot of empty air in Lykos's campaign promises. In fact, they are almost 100% empty air. But the Chronicle editorial board doesn't understand the criminal "justice" system any better than the voters, so Lykos's empty promises sound good. With this endorsement, the blind are leading the blind.

Virtually everybody who actually practices law down at the Harris County Criminal Justice Center, however, agrees that Lykos is not the best person for the job. AHCL and I might disagree on whether she is the worst, or only the second- or third-worst of the four-candidate Republican field, but we -- and the vast majority of defense lawyers, prosecutors, and judges we know -- agree that Jim Leitner, at least, is a better choice for DA than Pat Lykos.

The good thing I can say about her is that, if elected, she'll bring change that Kelly Siegler wouldn't bring. The anarchist in me relishes the idea of the DA's office being gutted by (or gutting itself under) Lykos and taking a decade or more to recover. I have reason to think that a Lykos administration will be repugnant to the judiciary (most of whom came up as prosecutors under Holmes or Rosenthal) as well, which will probably help to end their feeling of affinity for the DA's Office. The quality of justice will likely improve when judges feel less familiality with the prosecutors in their courts.

The pessimists in the criminal defense bar worry about an influx of new criminal defense lawyers -- refugees from the DA's office -- if Lykos becomes DA. They feel threatened by the prospect. I'm not worried about it -- few people could come out of that office and immediately be a real criminal defense lawyer, and those that do will displace the pretenders who already embarrass the criminal bar.

But still I am keenly aware that, in the words of Pat McCann, "things could always be worse."

No More Contact With KHOU

Please don't contact KHOU about whether the debate should be televised. They get it, and they're starting to get overloaded with emails. They can't broadcast it live on their main channel, and they're already considering broadcasting it live or with a tape delay on their secondary digital cable, which is the best, I think, that we can hope for.

Please pass word to your friends.

Don't Encourage KHOU

My dad sent an email to KHOU asking that the station broadcast the February 19th DA candidate debate on television (instead of just on the web as planned):

I understand that KHOU will be broadcasting the 19 February debate of the Harris County District Attorney candidates on your website but not on the air.

This is an appeal that you also broadcast the debate live on the air. The choice of a new District Attorney for Harris County this year is one of the most important issues for your audience and will affect the lives of many in the county for years to come.
This is an opportunity for you to provide a meaningful public service.
Thank you,
Clark Bennett

In response, he got this:

Thanks for your e-mail.

The Harris County District Attorney Debate will be aired live on 11 News’ Web site www.khou.com the night of Feb. 19. The debate will also be available on demand on KHOU.com starting that night as well.

Segments of the debate will also be a part of the 11 News newscasts.

If you have a question of the candidates that you would like asked during the debate, please submit that question to this e-mail by Feb. 15.

Thanks again for your comments.

=====================

TJ AULDS KHOU.com News Producer

Not quite responsive, huh? No worries, though, Dad's on the case:

Dear Mr./Ms Aulds,

I appreciate you responding to my email but you did not address my request that KHOU broadcast the debate live on the air.

As my email stated, I was already aware that you intended to have the debate on your website. This is not adequate considering the importance of this issue to the citizens of Harris County. I hope KHOU management can reconsider.

Clark Bennett

An unexpected quick response from TJ AULDS:

Mr. Bennett,

Thanks for your request. I confirmed yesterday that the decision is to air the debate live on KHOU.com and feature it prominently within our newscasts as to reach a wide audience.

I have forwarded your e-mail to Ch. 11 management for consideration.

=====================

TJ AULDS KHOU.com News Producer

Management? Consideration? Sounds promising! Then, today, management's response:

Dear Mr. Bennett,

Thank you for your letter requesting that KHOU air the debate on Channel 11.

We agree that the debate is important, that’s why when we were asked to become involved, we did. The Harris County Criminal Lawyers Association first sought out another TV station and was turned down.

We’re glad the HCCLA came to us next. We have programming commitments to CBS that keep us from pre-empting prime time on that night. The HCCLA is happy that we can stream it on the web and we are considering either a live or tape delay broadcast on 11.2. Once those plans are finalized, we will have that information on our website.

Again, I appreciate your feedback and giving me the opportunity to give you an update of our coverage.

Sincerely, Lisa Shumate

Lisa Trapani Shumate

Director of Marketing

KHOU-TV/1945 Allen Parkway/Houston, TX 77019

Okay, so maybe it's unreasonable for us to expect them to preempt Friends (or whatever it is that plays on Thursday evenings on CBS nowadays) for a debate among candidates for one of the most powerful elected positions in the country.

Your mission, reader, should you choose to accept it, is to send an email to Ms. Shumate at xxxxx@khou.com encouraging KHOU to broadcast the DA candidate debate as widely as possible.

Edit: No more emails to KHOU. They get the point.

Todd, Pat and Me on the TeeVee

(Pay no attention to the goofy-looking static frame. Google picks this automatically to make the uploader look as ridiculous as possible.)

Unleash the Spin Hounds!

News from an anonymous source who has provided reliable information in the past:

Last night [1/31/08] at Live Sports Bar at Main and Preston, a pep rally-type meeting was held for the Siegler campagn. Apparently the subject and purpose of the meeting was to brainstorm and get motivated on how to counteract the stream of negative press surrounding Kelly. This indicates that the Siegler camp is reasonably self-conscious of the problem, and fears it will continue. I would have to agree with them.

Consider that when you read AHCL's Blog or a letter to the Chronicle (by Cindy Rosenthal, Vic Wisner, Chris Miller, whoever) defending the Office: they're trying to wash the stench of the Office's decay under Chuck Rosenthal off Kelly Siegler.

Here, on the other hand, I'll print the negative about any of the candidates, provided that I think it bears indicia of reliability. If you have a legitimate criticism of Jim Leitner, bring it to me. If it's credible I'll publish it.

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.

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?

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.)

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.

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.

O Canada

I wrote a bit here about an email that circulated through the Rosenthal / Siegler DA's office mentioning "Canadians" on the jury. "Canadian", as it turns out, is a cryptoracist code word for "Nigger". (Others may coyly write "the N-word" instead: it seems to me that when we use that circumlocution we insulate ourselves, to our discredit, from the full horror of the word.)

There is more to the story. First, the prosecutor (I'm not going to hide his identity, but I am not going to use his name: I don't feel inclined to emphasize it here, because this isn't about him but about a culture of sanctimony in the Rosenthal / Siegler DA's office that engendered the pretense that prosecutors are better than others, which in turn led to illegality, unethicality, and general sleaze) talked about the incident with a local Fox News reporter (Fox 26 should be commended for making raw footage of interviews available as well). Credible denial, right? That's what I thought I don't know this prosecutor well, but I was prepared to believe that he didn't know the significance of his words.

Well, here's the disappointing "real story", as related to me by criminal defense lawyer (and former prosecutor, though she left the office long before this incident) Vivian King:

This is what happened. The email went out about winning the trial even though they had 3 "Canadians" on the jury. A black prosecutor who was offended and hurt by this email blast, went to the court where the case was tried the next day and pulled the jury list to confirm his suspicion that [the prosecutor] was using "canadian" as a code word for Nigger. [The prosecutor] tried to stop the clerk from giving the prosecutor the list, but the clerk, who was black, gave it to him anyway. The 3 jurors referred to by [the prosecutor] were confirmed as being black (ie., Canadians, Niggers, etc). The blk prosecutor confronted [the prosecutor] right then and there man-to-man in private. As [the prosecutor] told his version of the story to people in power, this blk prosecutor was black-balled and is receiving "threats" right now so I cannot disclose his name. Eventually, Joe Owmby [a black senior prosecutor] did some email research on the use of this phrase -- that Canadian is the racist code word for Nigger, like Australian is the code word for gays -- and presented it to Lyn McClellan [a white more-senior prosecutor] to stop the rift. This prosecutor was hurt and alienated by the powers that be in the office and had to quit to find a peaceful work environment.

[The prosecutor] definitely knew what he was doing when he wrote the email which was definitely a racial slur or code. I'm sure he's a good guy to those he likes. But to black lawyers, who have to deal with racist messages (sometimes meant only for us) this is a very hurtful thing. Stop defending him and just accept it. He's a racist. Those who are friends with him, if you care, please try to improve his secret attitude so our clients are not treated unfairly, just b/c they're black or have a black attorney. And since blacks are always so forgiving, a lot of us have known of this incident since it happened, and just continued to do our jobs and try to get along with prosecutors who we know don't like us. We're tired of it. And more might be surfacing soon. That's why [defense lawyer Alvin Nunnery] made the comments he made on Fox. He's tired. That's why Kelly's voir dire of the black venireman became public (Also note that that blk venireman's best friend was a white prosecutor who was his son's god father and Kelly knew it before she used a preremptory challenge on him. Before she made the Lakewood church comment. Before she made the false stmt that Quanell X was the leader of the NAACP, this radical group of which he is not even a member.)

To recap: a white prosecutor in the Chuck Rosenthal and Kelly Siegler DA's office sends out an email blast to every prosecutor in the office using a code word for "Niggers". A black prosecutor investigates; the white prosecutor tries to block him from finding out that the jurors in question were in fact black. The black prosecutor finds out despite; he confronts the white prosecutor in private. The white prosecutor runs to management with his version of the story. The black prosecutor is blackballed and alienated, and even now is receiving "threats". The white prosecutor is still working in the office. Put all of that together with the blatantly racist emails that Chuck Rosenthal either sent, or received and kept, and you start to get the idea that, beneath the culture of sanctimony, there might be a hidden culture of racism in the Chuck Rosenthal / Kelly Siegler DA's office.

More on that soon, I promise: former ADAs have historically remained quiet after leaving the office about the problems with the office; now that there are cracks in the dam, I expect more accounts of racism and other misconduct in the office to trickle out.

Apropos of the impending election, I expect Kelly Siegler to distance herself as much as possible from her friend and boss, Chuck Rosenthal. Every time another account of dishonor in the office comes out, she's going to have a hard time explaining what she did, from her position of power and respect within the DA's office, to set the office on the strait and narrow path.

Update: The Prosecutor's Response.