Chuck is Going . . . Going . . .

I asked here, "Is the fix in? Did Kelly get word that Chuck's resignation is in the cards?"

It appears that, indeed, the fix is in. Reports indicate that Chuck Rosenthal's chief investigator (and right-hand man) John Ray Harrison was packing up Chuck's office on Friday.

Business as usual, then, at the Harris County DA's Office: Chuck, after getting his ass kicked on the stand in federal court, decides on Friday to resign, and tells Kelly so that on Monday she can call for his resignation and appear to have influenced his decision.

I surmise, for reasons I discussed here, that a deal has been cut for Governor Perry to appoint a non-candidate caretaker DA for the interim.

The prosecutors' desired endgame: Kelly gets elected, claims that there was nothing wrong with the Office that Chuck's resignation didn't fix, and everybody but Mr. Harrison and Ms. Stevens gets to keep his or her job.

(News like this takes time to percolate down to me. AHCL and her prosecutorial readers could undoubtedly have reported that fact on Friday, but that wouldn't help create the illusion that Kelly Siegler, by calling for Chuck's resignation, acted as an agent of change.)

Compassion and Sociopathy

There's an interesting argument discussion at Life at the Harris County CJC about the role of compassion in prosecution. Commenter PJ says:

We don't need righteous DA's doing "battle" with "criminals." We need people serving the public fairly, with at least some degree of understanding and compassion from whence "criminals" come.

Commenter anonymous c responds:

You think that we need ADAs who have "understanding and compassion" for the criminals. That's utterly absurd!

It would totally upset the whole idea of true Justice, which is that the ADAs, with compassion and understanding towards the victims, fight vigourously and tirelessly to convict and that the DEFENSE lawyers, with the understanding and compassion towards the criminals that you speak of, fight vigorously and tirelessly to acquit. In the middle of that battle is where, ideally, Justice is born. That's how it works.

I don't want to live in a county with touchy-feely, peace and love ADAs and I highly doubt that you would, either. It's just not reality.

Anonymous c presents the popular public misconception of the prosecutor's role. The public thinks that prosecutors are fighting for the victims, and that their goal is to convict. As a result, many of the voters think they want prosecutors without compassion for the people they are prosecuting.

Compassion, like mercy or grace, is not something that is earned. We don't treat people with compassion because of who they are, but because of who we are. We have a name for people without compassion: we call them sociopaths. Compassion given only to people who "deserve" it? It's not compassion at all.

The police aren't always right; often they screw up. Complaining witnesses aren't always truthful; often they lie. There's often no benefit to anyone in convicting the accused. Sometimes the accused is the true victim, sometimes everyone is a victim, but in most cases there's no victim at all. In most cases prosecutors aren't even pretending to be fighting for victims, but for the government.

Sometimes cases need to be dismissed; sometimes the law's penalty is unduly harsh; sometimes people's illegal conduct is mitigated by the good they have done or by the harm they have suffered. Only a sociopath would never feel compassion for anyone accused of a crime. But that's what the voters, scared mindless of crime, think they want from their prosecutors. And too often that (or a simulation thereof) is what the voters -- and their sons, husbands, fathers, and brothers -- get.

(For a former prosecutor's view of the prosecutorial mentality, see this post at Defense Perspective.)

Morons.

Kelly Siegler, playing catch-up to Jim Leitner, has called for her boss's, Chuck Rosenthal's resignation.

Better a month late than never, I always say. But Jim and Kelly are not the subjects of this post.

The subjects of this post, referenced in the title, are DA candidates Doug Perry and Pat Lykos, who "said they were neutral on whether Rosenthal should remain in office."

How can a candidate for DA, aware of the situation in the DA's office and the CJC, be "neutral" on whether Rosenthal should resign? Suddenly both Lykos and Perry seem irredeemably unqualified for the post they seek.

Is the fix in? Did Kelly get word that Chuck's resignation is in the cards? Has a back-room deal been cut for Governor Perry to place Kelly at the helm of the Office before the primary (one of the few things that might secure her the nomination)? All questions above my pay grade. Safe to say, though, that this will be an interesting week.

A Lesson in Federal Contempt

Here is a thought-provoking little piece on Tom Kirkendall's Houston's Clear Thinkers blog about whether Chuck Rosenthal is in fact facing jail time for contempt in Judge Hoyt's court.

The contempt proceeding is for indirect criminal contempt. It's "indirect" because Chuck didn't commit contempt right in front of Judge Hoyt, and it's "criminal" because the contempt is completed -- Judge Hoyt can't hold Chuck in jail until he complies with the order. Tom's argument is that Chuck can't legally be held in contempt because he

has been provided none of the protections that due process of law requires for a criminal defendant. Inasmuch as Rosenthal's allegedly contemptuous conduct did not take place in the courtroom, the trial judge does not have the power to hold him in criminal contempt without a full-blown trial on the criminal contempt charges. Indeed, the trial judge cannot even be the judge in Rosenthal's criminal contempt trial because the judge is a potential witness in that trial.

Likewise, the plaintiffs' lawyer in the civil lawsuit cannot prosecute a criminal contempt case against Rosenthal. Rather, the contempt charge must be referred to the U.S. Attorneys' Office, which then decides whether to prosecute Rosenthal based on an evaluation of the evidence and and the charges. If the U.S. Attorney decides to do so, then Rosenthal is entitled to the due process protections that any criminal defendant is entitled to receive, including notification of the specific charges, trial by jury, and confrontation of the adverse witnesses. The circus going on right now over in federal court doesn't come close to fulfilling those Constitutional safeguards.

It's thought-provoking because for some reason I figured that Judge Hoyt and the lawyers involved knew what they were doing; silly me, that's something I would never do if I were representing Chuck. I'm glad to be wrong because, more than I relish a prosecutor getting something he might well deserve, I enjoy seeing someone slip out of a jail cell by using procedure to his advantage.

Tom's right in part and wrong in part. It appears (I've not yet had to defend anyone against contempt charges in federal court) that the rule that governs is Federal Rule of Criminal Procedure 42:

Rule 42. Criminal Contempt

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

Chuck has received procedural due process: notice and an opportunity to be heard. He's getting to cross-examine the witnesses against him, and is getting to call his own witnesses. He's not constitutionally entitled to a jury trial because he's not facing more than six months in jail.

Chuck's statutorily entitled to a jury trial (see 18 U.S.C.A. § 3691), but only on demand. He didn't demand a jury trial, so he gave up that right.

But Judge Hoyt didn't request that the government prosecute the contempt, and the court's show-cause order, entered on January 2nd, didn't "state the essential facts constituting the charged criminal contempt and describe it as such" as required by the rule. Nor did Judge Hoyt disqualify himself from presiding at the contempt trial, which argualby involves disrespect toward him.

Chuck's lawyers haven't raised any of these issues. They might have had to do so before the hearing (which is a rule of thumb) or they might be able to lie behind the log and claim error afterwards.

Can they complain now that the notice was insufficient, or have they waived that complaint?

Can they complain after the hearing that the judge didn't ask the Government to prosecute the contempt, or do they waive that complaint by not raising it before the hearing? (In the leading Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A., the defendant/contemnors objected before trial to the appointment of the plaintiff's lawyers to prosecute the contempt; the Supreme Court agreed with them and reversed.)

Can they complain after a hearing that the alleged complaint involved disrespect toward Judge Hoyt, and that he was therefore disqualified from presiding, or did they consent to him hearing the case by not objecting?

If they can raise any of these issues after the hearing, this contempt trial may legally be a freebie for Chuck. But there's no caselaw directly on point, and leaving this in the hands of Judge Hoyt and Lloyd Kelley on the chance that they can either a) win or b) get another bite at the apple if they lose seems like an exceptionally risky move, if they know what they are doing, or a startlingly ignorant one if they don't.

[Edit: On a few moments' more reflection, I'm voting for "startlingly ignorant". The time to object to this entire proceeding was before subjecting Chuck to cross-examination under oath. None of the procedural errors would bar reprosecution, and Chuck's testimony at this hearing could be used at a later hearing. Because Chuck testified, and testified badly, this hearing was not a freebie.]

Anonymous Commenters

I've changed my settings to disallow comments from anonymous commenters. If you want to comment, you'll have to have at least a pseudonym.

Expert Needed

The Harris County District Judges are trying to avoid answering my Rule 12 open-records request.

I need an expert on Microsoft Exchange Server. Specifically, I need someone to tell me (a) how difficult it would be to restore the server contents as of a specific date and search for emails from 22 individual mailboxes; (b) whether the judges' objection to doing so is reasonable; and (c) if the objection is reasonable, how I might make the request to make production less onerous.

If you know of someone familiar with this system, please have him or her drop me a line.

Thanks.

Don't Contact Channel 11 About the Debate

To give Channel 11 your thoughts about the February 19th DA debate (including whether the debate should be televised), email xxxxx@khou.com.

Edit: Don't give KHOU your opinion on whether the debate should be televised. They get it.

Harris County Sheriff's Email Retention Policy

Here, for the open records fans, are the Harris County Sheriff's recent email retention policy change memo and a flowchart showing how HCSO emails are handled.

TBI and Depression

A Canadian study of athletes who have suffered "mild" traumatic brain injuries "suggests depression is actually a physical outcome of such head injuries." Read this in conjunction with the American troop study suggesting that post-traumatic stress disorder also is an outcome of TBIs.

Why does it matter to us? Because the more people understand how incidents that are not even remotely the accused's "fault" (car crashes, IEDs, football tackles) can affect his outlook, his judgment -- indeed, his personality -- the better they will comprehend how unfair it is to punish people without considering everything that might have influenced that conduct.

TBI, PTSD, and Depression

Interesting article in yesterday's New England Journal of Medicine about new research into PTSD, depression, and physical health problems in U.S. troops who have suffered "mild" traumatic brain injuries. ("Mild traumatic brain injury" sounds benign, but MTBIs are "mild" only in comparison with more severe brain injuries.)

In this study, mild traumatic brain injury was significantly associated with psychiatric symptoms, notably PTSD, and the association remained significant after combat experiences had been controlled for. More than 40% of soldiers with injuries associated with loss of consciousness met the criteria for PTSD. The data indicate that a history of mild traumatic brain injury in the combat environment, particularly when associated with loss of consciousness, reflects exposure to a very intense traumatic event that threatens loss of life and significantly increases the risk of PTSD.

This is apparently the first such epidemiological study of TBI in soldiers.

MTBI is defined as a head injury resulting in loss of consciousness or in altered mental status -- "being dazed, confused, or `seeing stars,' or not remembering the injury".

The authors do not venture to suggest a single mechanism for the greater risk of PTSD in soldiers who have suffered MTBIs:

The mechanisms of these relationships are complex. Studies have not confirmed any direct link between PTSD and injury to brain tissue from the concussion itself, although this is an important area of research that makes use of new technology, such as diffusion tensor imaging. There is evidence that implicit processing of traumatic memories and fear conditioning, both mechanisms for the development of PTSD, occur even in persons with severe traumatic brain injury who are amnesic for the traumatic event. Mechanisms that are likely to underlie both the onset of PTSD after traumatic brain injury and the physical symptoms related to PTSD and depression include biologic processes associated with exposure to extreme stress, activation of the hypothalamic–pituitary–adrenal axis, autonomic reactivity, reactive cell–mediated immune responses, disturbed sleep physiology, and altered perception of symptoms.

In an editorial, Richard A. Bryant, Ph.D. discusses the possible mechanism in more depth:

The finding that mild traumatic brain injury is associated with an increased incidence of PTSD raises interesting possibilities about how mild traumatic brain injury may compound PTSD. Biologic models posit that a fundamental mechanism underpinning PTSD involves an exaggerated response of the amygdala, resulting in impaired regulation by the medial prefrontal cortex. The amygdala is central to the development and expression of conditioned fear reactions, and studies in humans and animals have shown that learning to inhibit these fear reactions involves inhibition by the medial prefrontal cortex. Consistent with this model, patients with PTSD have diminished activation of the medial prefrontal cortex during the processing of fear. Mild traumatic brain injury often involves damage to the prefrontal cortex due to shearing forces of the frontal regions against the skull. It is possible that a person's capacity to regulate the fear reaction may be impaired after mild traumatic brain injury because the neural networks involved in the regulation of anxiety may be damaged as a result of the mild traumatic brain injury.

Cognitive models propose that PTSD is maintained when trauma survivors have inadequate cognitive resources to manage their trauma memories and to engage adaptive cognitive strategies to manage the traumatic experience (e.g., they are unable to appraise a distressing state as temporary and, therefore, have heightened anxiety). Mild traumatic brain injury can impair cognitive resources and may compromise the capacity to engage in cognitive strategies to manage the aftermath of a psychological trauma. There is overwhelming evidence that maladaptive cognitive strategies (e.g., ruminating that one will never recover from the traumatic experience) after trauma are a major predictor of PTSD. Therefore, it is possible that people with mild traumatic brain injury have insufficient cognitive resources to engage appropriate cognitive strategies, which results in a greater incidence of PTSD.

In lay terms, the bruised brain has difficulty dealing with fear and memories of trauma, and either sort of difficulty may increase the chance of PTSD.

One lesson for criminal defense lawyers is to always be aware of the possibility of TBI and PTSD. Lots of people suffer minor traumatic brain injuries -- I've received a couple myself -- and nobody knows which ones cause permanent impairment. Another lesson is to look for TBI when PTSD presents itself, and look for PTSD when TBI presents itself.

Chuck's Very Bad Day?

This came after I shut my laptop because of low battery power:

Judge Hoyt: Aren’t there rules about preservation of documents at the state level?

Chuck Rosenthal: Yes.

Hoyt: In fact it can be a crime. It’s called obstruction of justice at the federal level. What do you call it at the state level?

Rosenthal: Tampering with evidence.

Hoyt: And you've prosecuted people for that. Your office has prosecuted people for that.

Rosenthal: Yes.

The line between ordinary citizen and felony indictee is grey and exceedingly fine. None of us -- no matter how law-abiding -- are more than one Very Bad Day from being charged with a felony. Chuck would probably have done well during his career in the DA's office to remember this, and to treat every person whose life or future was in his hands with the compassion and fairness that he would want if he were in their shoes.

For the universe is implacable in its settling of scores, and today may well have been Chuck's Very Bad Day.

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.

Chuck's on the Stand . . .

. . . being questioned by Judge Hoyt, and he just played the good ol' "no independent recollection" card:

I have no independent recollection of having read anything that Mr. Kelly filed.

Untitled 1

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

One of the Toughest Jobs in the World

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

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

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

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

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

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

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

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

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

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

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

Time for a Change of Format?

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

Opinions?

Does Mensa Matter?

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

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

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

Wall Street Journal Discovers TBI

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

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

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

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

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

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

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

Meet Pat Lykos

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

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

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

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

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

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

Best-case scenarios:

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

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

Worse-case scenarios:

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

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

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

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

The Candidates' Debate

From Earl Musick:

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

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

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

KHOU-TV will webcast the debate.

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