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.

The Fourteenth Amendment Right to Sex Toys

The Fifth Circuit Court of Appeals has recognized Texans' Fourteenth Amendment right to use (and therefore to buy) dildos:

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

As one who thinks that the word "moral" belongs nowhere near the words "the State", I have to say, "bravo!"

National Politics

Other blawgs aspire to be apolitical.

Not Defending People.

Everything we do is about politics -- the way groups make decisions. There is nothing more political than trying to convince twelve jurors that we have the right side of a dispute. Seen up close, trial lawyering is pure politics.

On a slightly larger scale, we deal with the politics of the elected officials we deal with. In Texas, both judges and district attorneys are elected in partisan elections; criminal defense lawyers must consider how partisan politics might play into judges' decisions, as well as prosecutors'.

On an even larger scale, national politics affect local politics. An extreme example is barreling down on us in November: the Democratic Party has a full slate of judges running against Republican incumbents in the criminal courts. Voters don't generally know one judge from another. If the Democratic Party wins in Harris County, then the incumbent judges are out; if the Republican Party wins in Harris County, then the incumbents (along with the Republican nominee for the one bench that's coming open and for the office of District Attorney) are back in.

Judges should not be elected in partisan elections; several of the judges up for reelection are worthy of their office despite their Republicanism. Nonetheless, a Democratic sweep would have a salutary effect in Harris County. For as long as I've been a lawyer, Republican County judges haven't had to worry about being unseated by Democrats. If they boughtgot the endorsement of the Republican power brokers (especially Steven Hotze), they were assured another four years on the bench. Our public servants -- especially the elected ones -- should never be so secure in their jobs that they can stop caring about serving the public.

So my view of the best Democratic candidate for president is informed by my read on the effect that each candidate would have in Harris County. In my untutored opinion, if Hillary Clinton is the nominee the right wing of the Republican Party will mobilize to vote against her, and the Republicans will probably hold on to Harris County. If Barack Obama is the nominee, on the other hand, Democratic turnout will be huge, and might be enough to turn the tide.

In the words of one judge, "If Obama is the Democratic candidate, we [incumbents] are screwed."

Amen.

Happy Anniversary Friends

Scott Greenfield's Simple Justice blog just celebrated its one-year anniversary. Anne Reed's Deliberations celebrated its anniversary on Saturday.

I had a blog back in 2004-2005, when the blawgosphere was young. I posted 17 times between August 2004 and June 2005. Then I quit, figuring that this "blogging" thing would never catch on.

When I resumed blogging in March of 2007, Anne and Scott both seemed like old-timers. I never would have thought that they had been at it for less than six weeks. (Of course, they're both still blawgosphere virgins, compared to CrimLaw's Ken Lammers, who's been blogging since 1973.)

Simple Justice (an ironic title -- we're generally scrambling to avoid someone else's idea of justice) and Deliberations, along with Jamie Spencer's Austin Criminal Defense Lawyer blog, gave Defending People some of its first link love. This wasn't because I asked for it but because I linked to their interesting posts.

I could make a full-time job of riffing off of Scott's posts. In the last week he's had two posts about important stories that I might not have heard about elsewhere.

First, The Hidden Risks, about the money-laundering indictment of a Miami criminal defense lawyer who was paid some $200,000 by Miami criminal defense lawyer Roy Black to investigate the source of the $5 million fee in a federal criminal case, and to make sure that it was clean money -- not proceeds of illegal activity. The lawyer gave the money a clean bill of health, and was then indicted for laundering it.

This is a cautionary tale for lawyers (the Southern District of Florida is the most common source of such tales); here, Roy Black (the lawyer taking the Really Big Fee) did everything right, which kept the feds (who, in that district, tend to aggressively attack competent defense counsel) from charging him with money laundering, but led them to charge his lawyer with that crime.

The other Simple Justice story that caught my attention this week was today's When the Lawyer Fails, about Alexandria, Louisiana lawyer Glenn G. Cortello, who dropped the ball in his client's federal sentencing. He failed to point out to the judge that his client was eligible for the safety valve, which would have allowed the judge to disregard the statutory minimum sentence. So the judge sentenced the client to five years. Until Matthew Sinor, a law student and army buddy of the defendant's, pointed out to the judge that the defendant could benefit from the safety valve. The judge went back and resentenced the defendant to time served (11 days).

Cortello's response to his client's sentence being gutted: Glee? No. Relief? No. Acceptance? No.

Sergeant Lett’s defense lawyer, who had been paid $10,000, did not appreciate Mr. Sinor’s intercession, which he called “insulting.”

“If you think five years was a bad job on my part, then you wanted a magician and not a lawyer,” the lawyer, Glenn G. Cortello, wrote to Mr. Sinor in an e-mail message. “When you get out of law school and have practiced criminal law for over 20 years, I’ll discuss it with you.”

This is the kind of crap that gives lawyers a bad name. Clearly, the law student had something to teach the guy who had been practicing criminal law for over 20 years. Nobody likes to be shown up, but, dammit, if we screw up and our clients suffer because of us, we should be ecstatic to have someone else correct our errors.

(This might also be a lesson in the internet's power over reputation: for time immemorial, potential clients seeking Glenn Cortello in Google are going to find references to this story.)

"Just" a DWI Jury Trial?

Scott's condescending attitude toward DWI trials had me thinking this week:

Hey, after I get out of my DWI trial I should maybe write something about the importance of DWI trials.

So here I am on the other side of another DWI trial.

DWI cases aren't beneath the dignity of any criminal defense lawyer in Texas that I know of.

Sure, they are "not murders or conspiracies", but in Texas (which is where people naturally go to find trial lawyers) the defense lawyers who try murders and conspiracies are also lawyers who try DWIs.

In Texas DWI is a jailable offense (up to 180 days) and a DWI trial is a real jury trial (unlike my 30-minute minor-in-possession trial last Friday; that was not what I would call a real jury trial).

Now, granted, we're only picking six jurors out of a pool of 24 (rather than the 12 out of 60 that is par for the felony course). And, granted, the client's not going to go to prison if things go wrong. And, granted, the DA's office isn't throwing its most experienced prosecutors at the misdemeanor DWI cases -- more likely, they're using it as a training ground for the youngest prosecutors.

But a DWI is extremely serious to the people accused of it. DWI is the most serious thing that most of them will ever be charged with. A conviction -- guilty plea or jury trial -- remains on a person's record forever and costs $1500 a year in driver's license surcharges. So rational people accused of DWI are willing to pay to fight the accusations.

A DWI jury trial is usually almost risk-free for the accused. By this I mean that the accused is not likely to receive much more severe sanctions for trying the case (a "trial tax") than he would for pleading guilty -- he is probably going to get probation (if he wants it) if he pleads guilty to a first DWI, and he's probably going to get probation (if he wants it) if he goes to trial and is convicted. But nobody ever got acquitted by pleading guilty. So, from the perspective of the accused, most first-time DWIs should be jury trials rather than guilty pleas.

In a DWI trial (lasting two days or more), a criminal trial lawyer, at a bare minimum:

• Picks a jury;
• Makes an opening statement;
• Cross-examines two cops (at least);
• Raises and responds to objections; and
• Argues to a jury.

He might also deal with sophisticated suppression issues and scientific testimony (no wiretaps, and no autopsy reports, but lots of issues of real substance), or examine witnesses on direct.

The cops in DWI cases are no less professional testiliarsfiers than the agents in federal cases. The task force cops don't have that formal Quantico "look at the prosecutor when he asks the question, then turn and answer the question to the jury" training that federal agents have, but they get more on-the-job training on the jury stand.

A trial lawyer's tools are his skills -- listening, cross-examination, rhetoric, and so forth. Tools get rusty and dull with disuse; the only way that trial lawyers can keep the tools in their toolboxes clean and sharp is to use them, and the only way to use all of those tools together is to try lawsuits.

The DWI jury trial provides the criminal defense trial lawyer with a way to maintain his skills -- to stay in shape. Along the same lines, it gives him a warmup for the heavier lifting of the major felony cases. Finally, it also allows him to try new techniques in an environment of little risk to his client. If you're going to try a new way of relating to jurors, better to do it in a DWI jury trial than a murder.

That's why, unlike our Gucci-loafer-wearing brethren in New York, we Texans -- even those of us who try murders and drug conspiracies -- don't scoff at DWI jury trials.

Me and Buford on the Teevee

More public access TV stuff: Drugs, Crime and Politics with retired South Texas College of Law prof Buford Terrell.

Picked a Jury Today

DWI -- total refusal with no accident, but driving facts include alleged flight from the police (a felony, with which he would undoubtedly have been charged if the cop were not making it up).

Unusual jury demographics for Harris County:

• A 29-year-old hispanic male waste company driver;
• A 50-year-old black female loan closing manager;
• A 63-year-old retired white lady from Brooklyn;
• A 42-year-old black female teacher's aide;
• A 28-year-old black club manager; and
• A 49-year-old black FedEx driver.

If the State can convince these six that my client is guilty of DWI, he might just be.

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."

More Public Information from HCSO

The Harris County Sheriff's Office responded to my email request for "all documents related to the Harris County Sheriff's Office's email retention policy, including emails and other correspondence discussing the policy and changes to the policy [for the time period from January 9, 2008, through January 18, 2008]."

Here are the 24 pages of email they sent me.

The oldest emails are from detectives, with complaints like "this policy change is killing us in Detective unit . . . I had numerous files that are needed in cases that are currently being worked that were saved in those files" and "I have things I was working on that are gone and I cannot get back or track on what was done."

The newer emails describe how to add personal folders to an email account ("contents of the folder are not deleted by the Department"). The most recent discuss how to retrieve "deleted" email, which is apparently not deleted to Chuck Rosenthal's standards, but rather preserved on tape.

Make of that what you will.

Take Two Aspirin But . . .

If it is before noon and a weekday, I am probably chugging along at either the Harris County Criminal "Justice" Center or the Houston federal courthouse. If I'm not in trial, I'm taking notes on a file, or negotiating with a prosecutor, or investigating, or filing stuff.

If you call me, I will probably answer the phone. Because I never know when it's an emergency, and when I'm doing most of those things I can still answer my phone.

But I'll be preoccupied, in the zone, focused, and intense. In other words, I will seem unfriendly. If it's not an emergency (that is, something that you need me to do something about before noon) I'll probably ask that you call me back after noon.

So, unless it's an emergency, please don't call me in the morning.

Let the Government Clean Up its own Mess

Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today's Rebirth of the Megatrial.

In the first, Scott argues that New York's appointed counsel system was not intended to, and should not, provide livings for criminal defense lawyers:

[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar -- "massive indictments inexorably lead to massive trials", for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But

there is a strong likelihood that many (if not all) of the defendants will be unable to retain counsel to represent them in this matter. Between the limitations on funds available for use to retain counsel, the sheer anticipated length of this case, the potential conflicts of interest that will preclude the usual assortment of lawyers who represent alleged organized crime figures, it is hard to imagine that many defendants will be capable of retaining counsel for the trial.

We're talking about a possible year-long trial, if history (the Pizza Connection case, which saw 22 defendants tried in a converted gymnasium for more than sixteen months) is an indicator (but N.B. the Pizza Connection case wasn't tried in the Carnival of Snitches that is today's federal criminal justice system; since then the system has developed to create incentives for snitches so that prosecutors can avoid most trials entirely).

Think of the economics of that: to hire a rational lawyer to try a case for a year, first you'll have to pay her for the months and months, if not years of anticipated pretrial litigation, evidence review, and trial preparation. If the case went to trial for a year, you would have to pay that lawyer much more than her anticipated gross for that year. She's not going to be working on much aside from your case, so you'll be paying her rent, Westlaw bills, staff, insurance, utilities, and everything else that she needs to stay in business. Further, there is a vast and incalculable opportunity cost to her for trying your case for a year; you'll have to cover that too.

This being New York, the trial costs won't have to be paid up front, and you can't buy trial insurance. So you'll have to deposit the anticipated cost of a trial in your lawyer's trust account so that she has it available in the event of trial.

How much money are we talking? In New York, I think it's safe to say that competent counsel with more than a few years of experience is going to require a deposit at least in the high six-figures to take one of these cases and commit to trying it. None of the New York criminal defense lawyers I know well would -- or should -- blush to ask for over a million dollars to take on this case.

But what if you're an alleged crime boss, and you don't have a million dollars hidden under the birdseed? What if, as Scott suggests, you are one of the many who is unable to retain counsel to represent you in this matter?

If you're one of the 62 defendants in federal court, you'll most likely be appointed a CJA panel lawyer. This lawyer will be paid $100 an hour for every hour spent representing you. Just for a year-long trial (not for any of the lead-up, which will probably in itself take thousands of hours) he'll probably earn $300,000-plus of taxpayers' money. That might seem like a lot of money for a year of work until you consider that he has to pay his fixed overhead, office expenses, staff salaries, phone bill, library bill, insurance and so forth out of that while not having any other business. New York is an expensive place to practice; a lawyer with spartan tastes in overhead might finish the year netting (WAG here) $150,000 of taxable income -- a little less than a BigLaw first-year associate gets paid. That lawyer, however, will have seen his practice (if he had one) decimated by the yearlong trial.

If you're one of the 26 defendants in state court, you'll be appointed 18b counsel. He'll be paid $60 an hour for out-of-court work and $75 for in-court hours -- less than 3/4ths of the CJA lawyer's pay. And at the end of the yearlong trial the lawyer will net maybe $75,000, will have seen his practice (if he had one) decimated, and will (if the reforms that Scott favors are instituted) be pretty much out of 18b work as well.

So what kind of lawyer would voluntarily take one of these cases without more than half a million dollars in the ol' trust account against the eventuality of trial? That is, who'll take the case on the government's nickel?

An independently-wealthy true believer, for one. A lawyer who didn't care at all about money, and whose spouse didn't care at all about money, for another. Good luck finding either of these.

A lawyer who doesn't have a practice to maintain, or who isn't thinking ahead, or who thinks that taking such a case will be a good way to make a name for himself. Would you really want any of those representing you?

Who's left?

Jury Trial Today

I went down to JP Court on the beach in Galveston County this morning, not really expecting to have to try a case. So of course there were 24 potential jurors waiting in the courtroom when I strolled in (I was 20 minutes late because I didn't factor the ferry ride into my travel time), and my client's was the only case on the docket.

It took 35 minutes to pick a jury of six and try the case, and about three more minutes to get a verdict. That was the shortest jury trial I've had, and probably the shortest I will ever have.

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.)

Ceci n'est pas une subpoena.

Texas lawyers:

One of these (pdf):

is hand-delivered to a witness in a criminal case. Does she have to turn up in Judge Harris's court (other courts use similar documents) at 8:45 on Monday morning, or can she legally ignore it?

Why or why not?

Extra credit for persuasive incorrect answers.

Double credit for correct answers in verse.

My Six Words

Smith Magazine is collecting people's six-word memoirs.

Everyone has a story. That's the tag on the masthead of SMITH, our online magazine. Yet until we asked the world to send us six-word memoirs, even we had no idea how true it was.

We took a page from Ernest Hemingway. According to legend, he was challenged to write a novel in only six words and came up with "For sale: baby shoes, never worn." We posed the same challenge online, but we asked for true-life stories -- in just half a dozen well-chosen words.

To launch the challenge, we posted examples from names we figured most readers would know, such as "Eat, Pray, Love" author Elizabeth Gilbert ("Me see world! Me write stories!"; she naturally e-mailed hers in from an airport runway in Indonesia) and celebrity chef Mario Batali (he sent seven, each enlightening but none as pitch-perfect as "Brought it to a boil, often").

More than 15,000 (and counting) submissions later, we are continually struck by what proves possible in just six words.

(The rest of the L.A. Times column.)

Here's my six-word memoir:

I never was very fond of rules.

What's yours?

See the Republican DA Candidates! Live! All Nude!

The Pachyderm Club of Downtown Houston is hosting the four Republican DA candidates tomorrow, February 7, 2008, at noon upstairs at the Spaghetti Warehouse in downtown Houston (901 Commerce Street). Entry fee is $8 at the door.

It's Tuesday, and Pat Lykos is Still Lame

On the heels of Kelly Siegler's realization that it was time for Chuck Rosenthal to resign (which itself followed only a month after Jim Leitner's call for Chuck to resign), DA candidate Pat Lykos has discovered that it's time for a change at the DA's office.

Now, if you're running on Kelly's "let the entrenched leadership of the Office correct its own problems" platform, and your goal is to convince the voters ultimately that Chuck Rosenthal was the whole problem all along, then it might make sense for you to take some time to make the momentous discovery that Chuck Rosenthal isn't the best guy to be running the Office right now.

But if you're running as an outsider, claiming to be the right one to fix a government agency that everyone outside the office can see is broken, should you really (never mind the ludicrous self-righteous posing) be the last serious candidate to realize that, whoever should be running the Office right now, it's not Chuck?

rec

AHCL thinks that she and I are coming at the question of compassion from different starting points.

AHCL writes:

You know, I think the reason that I disagree with Marky Mark and some of the other posters on a lot of the issues is because we begin on different starting points when we make our arguments.

While I start off talking about how the community needs good, talented and aggressive prosecutors on cases, I'm envisioning the ax-murderer and the baby raper.

When they start talking about mercy, compassion and a lack of arrogance in prosecution, they are envisioning the poor schlub who is walking down the middle of the street where a sidewalk is provided and the police find a crack pipe on him.

It's true that we're coming at the question from different starting points, but I think the divide is much wider than she recognizes.

First, the vast majority of people being prosecuted are more like the poor schlub than the "ax-murderer and the baby raper". Sometimes people do really bad things; these really bad things make for good press, and scares the voting public into electing "tough-on-crime" judges and compassionless prosecutors and spending lots of money on law enforcement, but the great bulk of that money is then spent investigating and prosecuting (a) malum prohibidum offenses; and (b) piddly malum in se offenses.

Second, not everyone prosecuted for the really bad stuff has done the really bad stuff. Aggravated sexual assault of a child is a good example: some people charged with ASAC just flat-out didn't do it. There's often no physical evidence to back up a child's allegation of sexual abuse. The DAs adopt the attitude that children wouldn't lie about "things like that", but anecdotal and scientific evidence proves them wrong. A prosecutor -- especially a blindered prosecutor -- can't tell the difference between the bad actors and the falsely accused.

Third, even those few who done the really bad stuff are human beings. The prosecutor can't know how his brain is wired wrong, how he was treated as a child, how he has been affected by traumatic brain injury . . . as Clarence Darrow said,

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

(I recognize that this is an unpopular perspective. Here's the popular view, which is provably wrong. The proof is trivial.)

Because most people are poor schlubs, and because we often can't tell the poor schlubs from the bad dudes, and because we can't tell what even the bad dudes deserve, the better course (for our souls) is for all of us to cultivate compassion for all human beings (my friend Jon Katz will say "all sentient beings"; I'm not quite there yet).

But never mind the prosecutors' souls: won't society suffer if its prosecutors aren't playing sociopath in the courtroom?

No. Two reasons spring to mind: first, compassion doesn't make a trial lawyer worse; it makes her better. I've seen prosecutors lose trials in voir dire because of their lack of compassion. I've seen defense lawyers win trials in cross-examination because of their empathy for the witnesses testifying against their clients.

Second, consider the possible aims of punishment:

• General deterrence;
• Specific deterrence;
• Rehabilitation;
• Incapacitation; and
• Retribution.

The only aim of punishment that suffers at the hands of a compassionate prosecutor is retribution, which has been so generally discredited that people who want to see public retribution use code phrases like "hold him accountable" and "show how we value life".

A prosecutor with compassion for a defendant can still seek a sentence that deters the particular defendant, that deters the public, that incapacitates the defendant, and that rehabilitates the defendant. If life without parole is necessary, the compassionate prosecutor can seek it; if the compassionate prosecutor thinks that killing a defendant is necessary to incapacitate him and deter others, she can seek death. (In fact, I have seen compassionate prosecutors arguing for severe penalties; they are much scarier than the usual foaming-at-the-mouth ranters.)

So it's not just that AHCL is envisioning people who don't deserve our compassion, and I'm envisioning people who do. The divide between us is that between one who believes that compassion is something that only some deserve and one who thinks that compassion is something that should be given to all.