Mike Anderson's Announcement

I'm sure by now that you have learned that Harris County District Attorney Mike Anderson announced today that he is battling cancer.

I don't know any more than what is being reported in the newspaper or television.  No specifics have been released.

My thoughts and prayers are with Mike, Devon and their family.

We are all praying for you and wish you a speedy recovery.

Happy Birthday Mr. President

Today is HCCLA President Todd Dupont's birthday.

In the past, I have been reminded that I forgot it, so I'm actually going proactive this time by wishing him a happy birthday in advance.

He did have to remind me again this year, but at least I talked to him before mid-afternoon this time.

So, if you see Todd today around the CJC wish him a happy birthday!

Trey Apffel for State Bar President

I don't normally pay a lot of attention to the State Bar Elections.

In 2011, I asked for your support to vote for Buck Files for State Bar President because it was important to have a criminal law practitioner be the president for a change.  Mr. Files was elected and he's done a great job of making issues involving Criminal Law relevant to the State Bar.

This year, the election for State Bar President has gone to a run-off between League City attorney Trey Apffel and an attorney named Steve Fischer.

I voted for Apffel in the general election, and I just voted for him again in the run-off.  Although his credentials are certainly impressive, I don't know the man.

But I am very concerned about his opponent's ability to lead the State Bar.

Fisher is running on a promise to "shake up" the State Bar, which I'm all for.  However, when things get "shaken up" the general hope is that they are changed for the better.  Fischer's vision for the Bar concerns me when he includes things like making lawyers less accountable.  His own website promotes the idea of lessening grievances against attorneys unless they could prove bad intent, or to use his terms:

"If you have (A) No bad intent + (B) No harm done = No foul."

That's a nice idea, theoretically, but can you imagine how many loopholes that ideology would create?

Additionally, I personally find Fischer's behavior on the campaign trail to be erratic to put it mildly.

I'm all for aggressively running for office, but some of Fischer's tactics have been way over-the-top.  From bombarding mailboxes on Facebook, to over-aggressively hounding people in the hallways and doorsteps of courthouses, there is something about Fischer that troubles me if he is going to become President of the State Bar.

For ages, lawyers have had a to fight a bad reputation of being overly aggressive and not responsible for their own actions.  In my opinion, Fischer seems so hell-bent on winning the election that he doesn't realize that he's reconfirming a lot of stereotypes about our profession.

I've never heard any of the same concerns about Apffel.

Voting in the run-off is very easy.  All you have to do is click here to vote.

It shouldn't take you more than about 45 seconds.

Please vote for Trey Apffel.

Black Robe Disease

I normally don't write about local cases that didn't happen in Harris County, but I think that this story is an exception.

If you are a local reader, I'm sure you've read by now about Margaret Young, the venire member held in contempt by Judge Kelly Case for failing to attend jury duty.   She opted to attend a celebration of a student being diagnosed as cancer-free, rather responding to a jury duty summons.

Here's the irony behind the story -- every day, a large number of people completely disregard their jury summons.  They just toss it in the garbage.

In the vast majority of those cases, absolutely nothing happens to the person who failed to attend jury duty.  I mean, seriously, nothing.

In the case of Ms. Young, it is my understanding that she called in and attempted to reschedule.  Due to the fact that she actually felt enough civic responsibility to call in, the Court was made aware of the fact that she did not plan on coming.  Since she had made her name available to the Court, Judge Case had the luxury of having an actual named person to single out for skipping jury duty.

Thus, the contempt charge.

The fact of the matter is that if Ms. Young had just tossed her summons in the trash can, she never would have ended up spending six hours in jail for missing jury duty.

So, yeah, Judge Case just taught us all a fantastic civics lesson -- you are better off ignoring the judiciary than trying to negotiate with them.

I'm tremendously disappointed in Case.  I don't know the man well.  I watched him in a DWI trial once and was very impressed by his trial ability and knowledge as a defense attorney.  I thought he would be a judge that took into account the fact that there are always two sides to every story.

I am, however, glad to see Montgomery County District Attorney Brett Ligon's response.

I've known Brett for a long time now, and I've always been a fan.  His words in the article are very telling.  As quoted in The Courier of Montgomery County:

"The six hours she spent in custody is already 'immeasurably more onerous than the lawful remedy of a fine at your disposal,' Ligon said."

Mr. Ligon is entirely too diplomatic to state, "What the hell were you thinking?" but that gets pretty close.

This case is pretty infuriating.

Jury service is never convenient for anyone, but those people who actually bother to try to reschedule should always be accommodated.  Otherwise, you send out the screaming message to just toss the summons altogether.

The fact that Ms. Young had such a fantastic reason to miss jury duty only magnifies the judicial arrogance behind Judge Case's incredibly misguided use of his power.

There is a phrase attributed to judges who believe that their power supersedes the interests of all others and makes them, somehow, superior to all others -- Black Robe Disease.

There isn't a lawyer who has ever handled a case that hasn't seen it -- in one form or the other, in varying degrees.

I am just genuinely shocked to have seen it so early and so significantly with Judge Case.

Tara George Departs

Tonight was my friend Tara George's going-away party from the Harris County District Attorney's Office.  I would have posted about it earlier, but I didn't hear about the party until today.

Before anybody starts spouting conspiracy theories about anything, Tara and her family are moving out of town.  She told me the town and she insists that it is in Texas, but I have my doubts.

To put it mildly, Tara's departure from the D.A.'s Office is a tremendous loss.

Tara was, without question, one of the Office's elite prosecutors.  She has a brilliant mind and a tenacious spirit that no defense attorney would ever want to be on the wrong side of.

She was also very practical.  She would evaluate a case based on its legal merits and she had the guts to acknowledge that a case couldn't be proven, even if the facts were upsetting.  She trained the people that she worked with to operate under the ethic that they should do everything they could to prove the toughest of cases, but to never lose their credibility by bluffing on a case they couldn't prove.

I never met a prosecutor nor a defense attorney that didn't have an immense amount of respect for Tara and the way she prosecuted.  In all honesty, she was one of those rare prosecutors who probably should have been made a Felony District Court Chief about two weeks into her tenure at the Office.

She knew the difference between defendants who had screwed up big time versus those who were true dangers to society.  She was never one who sought bigger punishments on cases that were easier to prove.  All of her recommendations and decisions were based on a very well-grounded sense of what was the truly just decision.

If every Assistant District Attorney had the same level-headedness about them that Tara did, there wouldn't be many complaints about prosecutors.

Yeah, I know I'm gushing at this point, but damn, Tara George was a great prosecutor.

I wish her the best in her future endeavors, and I hope that she finds herself back in the public sector.  She was definitely a credit to it.

I do want to point out that probably no one will miss Tara more than her "Ether Twin," Inger Hampton.  (NOTE:  I take credit for coining that term because when they worked together in the 180th District Court, they were on the same page about every last detail an attorney could possibly bring up to them.)

There has been a lot of press lately about prosecutors behaving badly, but for now, I'd just like to bid goodbye and good luck to one of the ones that we all hold in the highest esteem.

The Game IS still ON

Just FYI, per HCCLA Head Coach Rick DeToto, today's game is STILL ON.

Don't let last night's rains make you think differently.

See you at 1:00 p.m. at the High School for Law Enforcement, located at 4701 Dickson, Houston, Texas 77007.

HCCLA vs. HCDA Game Day

As I mention awhile back in this post, the Harris County Criminal Lawyer's Association and the Harris County District Attorney's Office have been training over the past month or so getting ready for their first annual Softball Game.

Tomorrow, Sunday, April 28th is Game Day.

The game is at 1:00 p.m. at the High School for Law Enforcement, located at 4701 Dickson, Houston, Texas 77007.

Everyone is invited and encouraged to attend!

And Therein Lies the Problem

I remember back in 2006 when Craig Watkins won the position of Dallas County District Attorney.  There was talk about his new post-conviction integrity policy and his going after prosecutors who had failed to disclose Brady material.

I was a prosecutor back then and I recall thinking that the newly elected D.A. seemed a lot more interested in prosecuting prosecutors than he was in prosecuting defendants.  My fellow ADAs and I talked about how tense things must be in Dallas -- the mandate had changed and the prosecutors were the new bad guys.  We felt bad for the prosecutors up there who suddenly had to sweat someone going over their old trial files and maybe prosecuting them criminally for mistakes they had made.

I emphasize the word "mistakes" because that was what we -- the rank and file prosecutors of Harris County -- focused on.  I don't believe that any of us thought in terms of intentional acts done to hide things.  We thought about evidence that a police officer hadn't told us about.  Or something that we thought a defense attorney had seen in an open file that we failed to give notice of.

When we heard about what Craig Watkins proposed to do when he became District Attorney, we were offended at his ideas.  Why?  Because we failed to see that what Watkins was talking about when he wanted to go after prosecutors who failed to disclose Brady was going after prosecutors who intentionally hid exculpatory evidence -- those who were unabashed about cheating to win.

Nobody wakes up in the morning thinking they are going to go out and try their best to do the wrong thing, so the idea of a prosecutor who deliberately cheated and designed to do the wrong thing was truly lost on us.

Surely, such a creature did not exist.

Sadly, in the wake of cases like Anthony Graves and now Michael Morton, we've come to learn that such creatures do very much exist.  More importantly, last Friday, we saw that a Court of Inquiry recognized that as well -- and that something needed to be done about it.

Unlike Charles Sebesta, who seems to have escaped unscathed for what he did to Anthony Graves, a Court of Inquiry held former District Attorney and current Judge Ken Anderson accountable for his actions in the Michael Morton murder case.  Judge Louis Sturns handed down the ruling against Anderson, which led to Anderson being arrested and booked in.  In his Findings of Fact and Conclusions of Law, Judge Sturns acknowledged that the probable cause he found on Anderson's cases were more than likely outside of the statutes of limitations, but asserted that those were defenses that could be raised later.

That, in my opinion, may be the most awesome thing that Sturns did.  He knows that these charges will more than likely be shot down as untimely, but he made the finding anyway.  It's kind of like the judicial way of saying, "I'm finding Probable Cause even though the Statutes of Limitations may have run because . . . screw you for what you did, that's why."

Good for Judge Sturns.

If you want to understand the full effect of Judge Sturns rightfully ruling the way he did, just look to paragraph 42 in his conclusions of law, where he noted:

Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty.

And that's just frightening.

As I've told laymen before in explaining Brady, the problem with prosecutors who don't turn over Brady usually lies with them not finding the evidence in question to be credible.  For instance, if a murder happens on a corner and 19 witnesses point out the Defendant, that's fine.  But if the 20th witness says that the Easter Bunny did it, that sounds ridiculous, right?

It's still Brady.

Ken Anderson (and Charles Sebesta before him) believed so much in the guilt of the person being prosecuted that he found any evidence to the contrary to be unreliable, and therefore not Brady.  Sadly, Anderson is now a judge and apparently still holds to that belief.

The bottom line is that back in 2006, I was scared of what Craig Watkins was doing.  I thought he was going to criminalize prosecutors who might have made mistakes.

I didn't believe in creatures like Charles Sebesta and Ken Anderson back then.

I sure as hell do now.

Missing in Action Again

As one of my classier commenters pointed out on my last post:

"So post-Lykos, this is just an obituary blog an outlet for your lugubrious lamentions?"

 After looking up what "lugubrious" meant, I decided that although the commenter picked a poor venue to take a pot shot, he was correct.

The blog has been slacking pretty badly lately.

There are a couple of reasons for this.

The main one is that I've been working out of state on a consulting project for this program.  I can't say anything about the details on that, however.  I've been bouncing in and out of town quite a bit lately.  Maintaining a regular practice and working on the road takes up a lot of blog-writing time, just FYI.


Being out of town also means that I haven't been in the position to get a lot of office scoop and gossip lately.

I get comments from time to time regarding complaints about the Anderson Administration.  They pretty much range from griping about the "mean girls" promoted to leadership positions within the office to a lack of decisiveness in making chief promotions last month to the delay in determining what the Administration's policy will be on Pre-Trial Diversions.

Nothing too earth-shattering, in my opinion.  At least not to the degree where I felt it would be worth much of a blog post.

However, you are always free to talk about whatever you want to.


On a side note, yes, I still have this guy.  His name is now Buddy Holly.

My wife was very thrilled for me to go out of town and leave her with a non-housebroken stray dog.

They are bonding in my absence.

George Flynn

I was extremely saddened to hear today of the unexpected passing of former journalist and former Harris County District Attorney's Office spokesman George Flynn.

I first met George through Mike Hinton, who loved nothing more than getting together with George and telling stories from the old days.  His war stories were priceless.  He was an amazing gateway to the history of Harris County's criminal justice system.

He would write in to the blog on occasion over the years and he very much had a sense of right and wrong about the goings on at the Office.  I can't say that I knew him as well as his friends from those old days, but I knew him as a man who the truth mattered greatly to.

Mostly, I knew George Flynn as a very kind and humble man.

My thoughts and prayers go out to George's family.

Reasonable Doubt Return Tonight (4/18/13)

After a several week hiatus, Reasonable Doubt returns to live TV at 8:00 p.m. tonight with a ton of topics to talk about.  We are still working on getting a guest lined up but there is no shortage of topics to discuss from the Kaufman County arrests, the Montgomery County attempted murder-for-hire, and a lot of stuff going on with Legislature and in the Supreme Court.

Tune in tonight with your questions.  I'll let you know when we get a guest.  As always, you catch us live streaming by clicking here.

Dorian Cotlar for Bail Bond Board

In our world of the Criminal Justice System, we are constantly dealing with people running for things.  People run for Judge.  They run for District Attorney.  They run for HCCLA Board positions  (NOTE: that would be me).  We all have our reasons.

My friend, Dorian Cotlar, has put his name in the hat to run for a position on the Harris County Bond Surety Board.  The position he seeks is one that is to be filled by a criminal defense attorney who helps oversee the practices of the bonding companies that work in Harris County.  His intentions are unquestionably altruistic:

"My interest in this position began when I had a client’s mother pay a $540 NON-REFUNDABLE "premium” (fee) for a $500 bond.  For you non-criminal practitioners, the client’s mother could have simply gone to the Harris County Jail, posted $500 in cash, and then received a full refund (minus a small service charge) when her daughter’s criminal case was resolved.  A reputable bonding company would have charged a reasonable fee.  While this practice is technically legal, dishonest bonding companies mislead the most vulnerable people in our society in order to extract outrageous bonding fees." -- Dorian Cotlar

I've known Dorian since we worked together at the District Attorney's Office.  He has an impressively successful law practice.  His foray into working with the Bond Surety Board won't benefit  him -- it will benefit everyone else.  He is volunteering to take on an extreme amount of work to make our system better.  He wants to clean up the bonding practices in Harris County.

To vote for Dorian, please click on this link: https://hccla.org/wp-content/uploads/2013/04/BBB-ballot2013A.pdf

As you will see on the ballot, you must be eligible to practice in Texas and your primary area of practice must be in Harris County.  You also have to be legally eligible to represent criminal defendants.

Loosely translated:  My friends in the District Attorney's Office have to sit this one out.

However, that doesn't mean that prosecutors can't forward this link on to their non-prosecutorial friends in Harris County.  Civil attorneys, Family Law attorneys, and Corporate Law attorneys are all eligible to vote.

Dorian is the right guy for this job and he is running for all the right reasons.

He's one of the good guys and he's doing what he can to make a difference.

Please take time out of your day and vote for a good man who will make a major difference in the way things are done in Harris County.

A Day of Remembrance

Today and tomorrow, prosecutors around the State of Texas will be wearing a black ribbon to honor the memory of Kaufman County prosecutors Mike McLelland and Mark Hasse, as well as Cynthia McLelland.

Please take a moment to pay respect to the lives lost on this very sad day.

Kaufman County

I'm sure by now that you have learned of the horrifying murders of Kaufman County District Attorney Mike McLelland and his wife, Cynthia, in their home yesterday.  This follows on the heels of the January 31st murder of Kaufman County Assistant District Attorney Mark Hasse and according to the Dallas Morning News, the murder of Colorado prison official Tom Clements may also be related.

I was in trial when Mark Hasse was murdered.  I was saddened to hear about it, but I didn't give a lot of thought to his death being part of a larger scheme.  The media rumbled about the possible involvement of the Aryan Brotherhood, but I don't pay much attention to what the media's preliminary accusations lead to.  I still recall vividly all the news reels of April19, 1995 when the news wanted to first blame the Oklahoma City bombing on Al-Queda.

As the news comes in about yesterday's murders, the idea of Aryan Brotherhood involvement seems to become much more credible.

I've been involved in Texas criminal justice in some form or another since 1994 and I have never seen anything like this.  The murder of prosecutors in retaliation for the jobs that they do is something you would expect from the Zetas in Mexico -- not the United States.  The fact that it could happen in such a small county as Kaufman brings to light that it can happen anywhere.

I never considered the job of being a prosecutor to be a dangerous one.  In the nine years I spent at that job, I had a concealed handgun license, but I never carried a gun.  I never felt the need to.  I locked my doors at night and kept a gun in the nightstand, but that was because I lived in Houston.  I didn't feel that being a prosecutor put me at more of a risk of being a target.  Quite frankly, I've angered many more defendants in my role as their defense attorney than I ever did as a prosecutor.  Defendants become more angry at the defense attorney who delivers the news that the prosecutor won't dismiss their case than they do at the actual prosecutor.

And don't get me started on the animosity that a divorce attorney can inspire in even the most law-abiding of citizens.

Yes, there have been incidents of violence against prosecutors in Texas.  No one has forgotten about the defendant who attacked then-prosecutor-now-Judge Marc Brown in the middle of a trial.  Nor have we forgotten the murder of Gil Epstein in 1996.  However, those were isolated incidents.

The murders of the Kaufman County prosecutors is a declaration of war.

And like with all wars, nothing good will come of it.

I wish I had something more profound to write.  I wish I could say something that could possibly provide some sort of reason or sense to the tragedy of Kaufman County, but I can't.  I've said before that the world is a dark place and it is becoming increasingly darker.

My thoughts and prayers are with the McLelland, Hasse and Clements families.  I hope that all of those responsible for these murders are swiftly brought to justice.

Judge A.D. Azios Passes Away

For those of you who have been doing criminal work in Harris County a little longer than I have, the news is reporting that retired Judge A.D. Azios passed away on Friday. 

I never had the pleasure of trying a case in front of him, but have heard all kinds of war stories that seemed to indicate Judge Azios was a good judge with a good sense of humor.  As the news noted, he was the first elected Hispanic Judge in Harris County.

Although I don't have any war stories of my own, I invite you all to share yours here, if you would like.

Pat Lykos Escapes Indictment . . . Again

In a move that should be absolutely surprising to no one, former-Harris County District Attorney Pat Lykos added to her legacy of avoiding indictment again yesterday.  As reported by Brian Rogers in this Chronicle article, the 263rd Grand Jury declined to indict Lykos for her role in investigating members of the 185th Grand Jury who were, um, also investigating her.

I had assumed that the 263rd's investigation into Pat had ended quite some time ago.  I had heard at the first part of the year that they had requested to have their term extended, but I didn't know it was still ongoing.  On Wednesday, I had heard that she had retained Dick DeGuerin to represent her and she was rumored to have asked her church congregation to pray for her.

It appears that her prayers were answered.

Unlike the previous media swarm that Lykos unleashed at the close of the 185th Grand Jury's investigation, she was uncharacteristically quiet this time.  Perhaps her silence was because she requested that this particular investigation (according to her) be performed by the Texas Rangers and could no longer claim it to be "politically motivated."

District Attorney Pro Tem Eric Nichols and DeGuerin were also silent about the investigation.  Perhaps that was because neither of them wanted to acknowledge that Nichols inexplicably allowed DeGuerin to appear in front of the Grand Jury to argue on Lykos' behalf.  For those of you who aren't familiar with how a Grand Jury works, the defense attorney is never allowed in before them to argue.  If anyone out there thinks that Lykos and DeGuerin didn't get special treatment, they would be very sadly mistaken.

Although the decision not to indict Lykos (or Leitner for that matter) for using county funded equipment to research her perceived political enemies on the 185th Grand Jury seems to defy logic, I'm not losing any sleep over it.  Regardless of whether or not she was indicted, the fact that she and her Administration had three separate Grand Juries investigate becomes the true defining moments of her legacy.  Her single term in the Office would be easily forgotten if it weren't for all the trouble she caused feeding her paranoia and her ego.

Hopefully she will use this opportunity to finally just go away.

On a side note, it was amusing to see the return of everybody's favorite lovable lunatic who was back to posting under the name of Dinkit in the comments section of the Chronicle article.  He's been relatively quiet since December.  I was beginning to worry that he didn't love me anymore.

Tonight's Reasonable Doubt (3/14/13)

Please join me and your host Todd Dupont for tonight's Reasonable Doubt at 8:00 p.m.  Our guest this week will be defense attorney Tom Moran.  We are long overdue in having Tom on the show and his background as a reporter, prosecutor, and defense attorney make him a very fascinating person to talk to.  Also, I just learned that he's also an occasional blogger!

So tune in with your questions tonight.  You can watch it live streaming by clicking here.

Tonight's Reasonable Doubt (3/7/13)

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our guest will be defense attorney Dee McWilliams.  We'll be talking about everything from prosecutorial ethics, reciprocal discovery and mental health.

As always you can catch us live streaming by clicking here at 8:00 p.m.

Found Dog in Houston

I realize the likelihood of this being successful is pretty much zero, but it is worth a shot.

Yesterday morning on the way to court, I rescued this male dog off the exit ramp from I-10 east on McKee leading into Downtown.  He was running up the ramp with his leash on and I was able to get him into my car.

He obviously has an owner of some sort.  He's very friendly but not hyper.

I've already listed him on Petharbor.com.  Any other tips on finding his owner or an adopter would be greatly appreciated.  E-mail me at murray@murraynewman.com

Loretta Smith's Last Day

Big congratulations to legendary HCDA Administrative Assistant Loretta Smith of the 209th District Court on her retirement today after 17 and a half years.

I first met Loretta after my second year of law school, when I did an Academic Internship in Judge Michael McSpadden's court back in 1998.  She and Investigator Suzanne Jones helped me figure out what in the hell I was doing back then.  The next year, they helped me get hired by the Office as an Assistant District Attorney.

Loretta, Me & Suzanne

Loretta is a legend and a fixture in the D.A.'s Office.  Everyone who worked in the court became a family member to her.  She remembered every last detail of your personal life and she was never shy about giving you advice -- whether you asked for it or not.  Her sarcastic wit and sense of humor made her a perfect fit for that office and the place won't be the same without her  and her monthly notices on the 25th of how many months away from Christmas we are.   

Congrats on your well-earned retirement, Momma Lo!  Somehow, I have a feeling you'll keep in touch with everyone.

Just a reminder to everyone, her retirement party is THIS AFTERNOON at Gloria's Restaurant at 2616 Louisiana Street at 5:01.

Tonight's Reasonable Doubt (2/28/13) - UPDATED

UPDATE:  Due to a previously unscheduled opportunity to spend the evening with my son, Robb Fickman will be handling the co-hosting duties this evening.  I apologize in advance for my legion of fans who had planned to bask in the light coming off of my scalp.

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our guest will be defense attorney extraordinaire Troy McKinney.

The show starts at 8:00 p.m. and you can catch it live streaming by clicking here.

Judge Ryan Patrick's Investiture

The Investiture Ceremony for Judge Ryan Patrick of the 177th District Court will be held this Friday, March 1st at 12:00 p.m. in the Ceremonial Courtroom on the 20th Floor of the CJC.

A reception will follow in the 177th Courtroom.

All are invited to attend!

The Bunker Mentality

As you may or may not be aware by now, the mandatory ethics training hosted by the Harris County District Attorney's Office on January 31st has recently come under attack by political pundit and die-hard Pat Lykos fan, David "Big Jolly" Jennings.   Big Jolly says:

"Immediately after the conclusion of newly elected Harris County District Attorney Mike Anderson's first training session for Assistant District Attorneys several [emphasis added] people that were appalled by the "training" asked me to look into it."

Gee, I wonder who those "several" people were.

Now (after I get this image of "Super Jolly to the rescue!" out of my head) let me point out a couple of things that I think are relevant before we break down his interpretation.

First off, David Jennings isn't a lawyer.  I'm not saying that makes him less intelligent -- Dave is very intelligent -- however, he often misses finer points of law.  At the early part of last year, I spent an hour trying to explain to him what the legal problem was with the DIVERT program, and the information just wasn't taking.  His allegiance to his particular candidate caused him to shrug off the law I was trying to explain to him.

Second, from the Missing the Forest for the Trees Department, did we forget the point that the new administration, in the first month of their regime, held a mandatory training session on Ethics?  If I recall correctly, the first mandatory training hosted by the previous administration was given by a paid speaker who talked about how the primary job of an Assistant District Attorney was to make their boss "look good."

Don't even say it, Rage.  I'll move along.

Big Jolly posted his article last Wednesday, and felt so strongly about it that he felt the need to do a follow up post on Friday where he cherry picked his favorite snippets of dialog from the lecture.  To be fair, he acknowledges his own bias in both posts.  In the meantime, the article picked up some traction and has been addressed by Scott Henson's Grits for Breakfast and Paul Kennedy's The Defense Rests (where in typical non-inflammatory Kennedy style, he refers to the D.A.'s Office as "a cult.")

I haven't posted on it before today because I thought I would actually take the time to watch the entirety of the video before commenting.  I know Big Jolly watched it all.  At the time of writing his article, Grits acknowledges that he had not watched it all.  Paul doesn't say whether or not he watched it all.  It is lengthy -- about 1 hour and 40 minutes.

My take on it is kind of tepid.  It certainly isn't the most awesome Continuing Legal Education seminar that I've ever watched.  I think that it could have used a lot more specific examples of what is Brady (exculpatory evidence, for you non-lawyers) material and a stronger emphasis on the fact that the duty to disclose Brady material extends to collecting it from police officers.

However, I don't think it resonates with the "cult-like" "bunker mentality" that Big Jolly is hoping it is portrayed to be.  I'm not going to go into as much depth on the class as Big Jolly does in his pieces, but I encourage you to watch the video yourself if you've got the time to kill.

In the end, I think the biggest problem with the seminar was that the wind up lasted about ten times longer than the pitch did.  Rob Kepple, Mike Anderson, and Johnny Holmes spent more time talking about how the "day and age" had changed more so than they did explaining how to adapt to it.

Anderson introduces the program, and points out the fact that the Innocence Project thinks of prosecutors as something "less than pond scum."  I suppose that is inflammatory, although I didn't think it was designed to rile up the audience of prosecutors against the Innocence Project.  I thought it was more a word of caution that prosecutors (and how they handle their cases) are under the microscope.  The message was very clear:  if a prosecutor thinks they are going to get away with fudging on facts because they operate under the delusion that everyone considers them the guys in the "White Hats," that belief is mistaken.

I can understand the interpretation that it may cause an "us vs. them" mentality, but hasn't the Defense Bar always wanted the prosecution to know that they are being watched when it comes to their ethics?

Mr. Holmes' appearance at the class was clearly an effort to get prosecutors fired up about doing their jobs, again.  He was the cheerleading opening act to Kepple's speech.  If some would take offense to the idea of getting the ADAs excited about prosecuting, there isn't much I could say to rebut their feelings.  He tells a story about trying a case against defense attorney Mike Ramsey, where Ramsey acknowledged that he was arguing some flimsy material.  His point is that prosecutors don't get to argue flimsy evidence when defense attorneys can.

The keynote speaker of the engagement was TDCAA's Rob Kepple.  I know Rob, but I've only met him on a couple of occasions.  Did I think his speech could have been better?  Yes.  Do I think it was as evil and conspiratorial as others have made it out to be?  Um, no.  Not even close.

Kepple begins by saying that times have changed and that the public doesn't have that blind love of prosecutors and law enforcement that they did back in the 1980s.  Is he lamenting?  I don't know.  Probably.  Who cares?  He then cites reasons that there may have been a change in attitudes from then to now.

He talks about how prisons were built and people got locked up.  People began to feel safer.  Fighting crime was no longer a priority in their minds.  He does cite the fact that formerly supportive business groups now regard the District Attorneys' Offices across the State as just another part of "big government" and aren't as supportive as they used to be.  Again, is he "lamenting"?  Who cares?

He cites the Pedro Oregon case, but he isn't applauding anyone.  He is simply pointing out that prosecutors have to make decisions that are often wildly unpopular in the public.

But after this is where Kepple's speech gets really misconstrued by Big Jolly.  Kepple readily acknowledges that prosecutors have not helped their own public perception by the way they've reacted to change.  He cites Mike Nifong and "Nifong Charlie" Sebesta for their over-aggressive and unethical prosecutions.  He talks about the Michael Morton case and Ken Anderson and John Bradley.  He acknowledges that John Bradley was his friend, but points out that Bradley's antics cost him his job in the primary in an extremely pro-prosecution county.

Does he call Michael Morton "lucky" because he got retesting done which ultimately freed him?  Yes, he absolutely does, but he doesn't do it with sarcasm.  He points out that many prosecutors have been opposing retesting of DNA and that fortunately Morton got his done and was exonerated.  He wasn't belittling that by any stretch of the imagination.  He stated that his hope is that Mr. Morton will come speak to TDCAA in the future about what happens when exculpatory material is withheld.

He does talk about how in sports, incidents of cheating are often forgiving, but his point is to show that this type of mentality does not work in prosecutions.  Prosecutors have a higher standard.  There should be no fudging.  There should be no cheating.  The example he gives of Billy Jack is of the prosecutor who wins their case with the material they are given and don't have to do anything sneaky to succeed.

Maybe I missed it, but I didn't see Kepple telling any of the prosecutors anything other than to do their jobs fairly and to be proud of the work they did.  He told them people are watching the job they are doing so they better do it right and they had better do it ethically.

Isn't that kind of what the Defense Bar has been wanting them to do since, I don't know, the beginning of the Legal System?

As for the "Bunker Mentality" and thinking that other people are out to get them, one of the comments on Grits' post may have provided some insight into why prosecutors feel that way.  An anonymous poster wrote the following information, referencing the murder of Kaufman County prosecutor, Mark Hasse:

That was over 48 hours ago, and (as of this writing) there hasn't been one single comment even arguing with that poster's logic.

To me, that's a hell of a lot more offensive than anything said during the Ethics Training Seminar.

The Inheritance - UPDATED

UPDATE:  Since the writing of this post, I have been informed that the District Attorney's Office has recused themselves from the Chiofalo cases.

Grits for Breakfast recently reported that when newly-elected Williamson County District Attorney Jana Duty took over her new position from outgoing D.A. John Bradley, she found a welcoming gift in her desk drawer of a headless corral snake.  This idea of a joke was clearly unprofessional, juvenile and mean-spirited; however, when considering the welcoming gifts provided during the Harris County District Attorney transition, it may pale in comparison.

When Mike Anderson took over for Pat Lykos on January 1st, he knew that he had a long road ahead of him.  The prosecutors' morale was down after four years of working under Lykos, Jim Leitner and Roger Bridgwater.  The Office's relationship with county-wide law enforcement agencies was strained.  The budget and the Office's Asset Forfeiture fund had been radically depleted.

All of this were things that Anderson knew he would be inheriting when he took the helm.  What he had not anticipated, however, were some of the scandals that had occurred under Lykos' Administration that suddenly were revealed under his tenure.

None of these scandals are more prominent than the FBI's arrest of former-Harris County D.A. Investigator Lonnie Blevins and the investigation into Blevins' partner, Dustin Deutsch for allegations of stealing high dollar evidence in a pending criminal case.

For those of you have somehow missed the story, Blevins and Deutsch are former partners with Harris County Fire Marshal's Office, who were hired to be D.A. investigators by Lykos at the beginning of 2012.  Prior to being hired by the D.A.'s Office, they had served in a liason-type capacity with the Office.  Both men were assigned to the Special Crimes Division, where they worked in Major Fraud.

In the vast majority of the investigator assignments with the D.A.'s Office, an investigator is very much a utility player in the course of day-to-day operations.  They hunt down witnesses on upcoming cases for trials.  They pick up evidence.  They accompany prosecutors any time the prosecutor has to go out in the field.

Being an investigator in Major Fraud, however, is a much more pro-active assignment.  Investigators like Deutsch and Blevins are routinely the police officers in charge of actually investigating allegations of criminal wrong-doing.  They draft search warrants.  They interview all the involved witnesses.  They collect the evidence.

Most importantly, they are the Affiants when charges are filed.

The D.A. Investigators for the Major Fraud division of Special Crimes file the vast majority of the cases that Division will handle, which makes the recent investigation into Blevins and Deutsch crippling.

Blevins was arrested for stealing (and subsequently selling) a large amount of valuable collectible comic books.  The problem was that these comic books were also evidence in the high-profile case against Anthony Chiofalo and his wife, Susan.  The bigger problem was that the investigating police officer who actually filed the charges against the Chiofalos was Blevins' partner, Dustin Deutsch.

Oops.

Let's just take a moment and see how this case plays out in trial.

A prosecutor has to put on Deutsch as a witness to testify about the wrong-doings of the Chiofalos.  Deutsch testifies passionately about how those terrible people stole all of that money.  The prosecutor then passes the witness to the defense attorney who asks Deutsch about how much money and collectibles he and Blevins stole as well.

See the problem here?

The fact that Deutsch and Blevins are under investigation isn't just relevant to the Chiofalo cases.  Theft is a crime of moral turpitude and it calls into question every case they ever touched.  There is a big difference from being a D.A. investigator who served a subpoena on a case, and being the one who actually filed the case, itself.  Their level of involvement in all of those Major Fraud cases calls every last one of the cases into jeopardy.

Additionally, as a friend of mine pointed out, think about all of the cases that Deutsch and Blevins handled as Arson investigators with the Fire Marshal's Office.  How easy would it be to walk through a burned up house and see an expensive watch, or even cash, laying around and steal it -- only to put in your report that all valuables had burned up in the fire?

The damage from the Blevins and Deutsch incident will affect not just pending cases, but potentially every one that they ever handled.

The District Attorney's Office did the right thing a few weeks ago when they said they were "freezing" 125 active cases handled by the Blevins and Deutsch.

But that's not enough.

Anthony Chiofalo's attorney, Paul Doyle, has called upon the Office to recuse itself from his client's prosecution, and he is absolutely right to ask for that.  There is too much involvement from Office personnel that jeopardizes the integrity of the case.  It is also worth noting that while the D.A.'s Office has "frozen" these cases, many of the defendants are still sitting in jail waiting for their cases to be "unfrozen" -- including Anthony Chiofalo.

Recently, the District Attorney's Office recused itself from handling the cases of any officers charged in the Chad Holley beating.  The reason given for that recusal was that Devon Anderson, the wife of District Attorney Mike Anderson, had represented an officer involved (but not charged) with the beating.

I agree that the Office's self-recusal was appropriate in the Holley case.  However, if it was appropriate in that case, then it is absolutely appropriate in the Chiofalo cases.  Quite frankly, at this point, the District Attorney's Office probably needs to recuse itself from any case handled by Blevins and Deutsch.  It just looks bad, otherwise.

NOTE:  As an interesting side note, Lonnie Blevins has hired Dick DeGuerin to represent him on his Federal case.  Dick is a great (and expensive) defense attorney.  Mr. Blevins dealt with Dick before on the highly publicized arson case of then-Texas Supreme Court Justice David Medina.

The bad acts allegedly committed by Deutsch and Blevins did not occur during the Anderson Administration and they don't reflect on it, either.  That being said, how this Administration handles the fallout from this scandal absolutely reflects on them.

They inherited this problem, but they can very easily bypass their inheritance by simply recusing themselves from further involvement.

I don't understand why they wouldn't want to.

REMINDER: Judge Kristin Guiney's Investiture Thursday

Just a quick reminder that the Investiture for Judge Kristin Guiney will be on Thursday, February 21st at 12:00 in the Ceremonial Courtroom on the 20th Floor.

There will be a reception following the ceremony in the 179th District Courtroom.

All are invited to attend!

The DAO vs. Defense Bar Softball Game

When Mike Anderson came on Reasonable Doubt shortly after winning the election in November, one of the things he stated he would like to do was to boost the spirit of collegiality between the prosecutors of his Office and the Defense Bar.  One of his ideas was to get a softball game going between prosecutors and defense attorneys.

HCCLA has responded to the challenge and a DA vs. Defense Attorney softball game is now being planned under the supervision of Rick Detoto.

The time and place of the game has yet to be determined, but Rick is starting to get a roster together.  All interested members of the Defense Bar should contact him at rickdetoto@aol.com.

I haven't heard who is handling the recruiting on the D.A. side, but I will let you know as soon as I hear.

Mark Your Calendars

There are a couple of upcoming social events coming up from within the D.A.'s Office that I've been asked to make you guys aware of.

On Thursday, February, February 21st at 5:01 p.m., there will be a D.A. Office Reunion Happy Hour for current and former Harris County Prosecutors on the second floor of Treebeard's on Market Square.

The following week, on Thursday, February 28th at 5:01 p.m., there will be a Retirement/Going-Away Party for the legendary Loretta Smith.  Momma Lo' is retiring after 17.5 years at the District Attorney's Office, where she has been the Administrative Assistant for the 209th District Court prosecutors ever since I can remember.  I'll be writing more about her later!

Loretta's party will be at Gloria's (formerly Ruby Tequila's) located at 2616 Louisiana, Houston, TX 77006.  Those interested in making a donation/contribution to party expenses can contact Tammy Ratley.

Katherine Cabaniss named 248th District Court Judge

I was excited to hear yesterday afternoon that my friend and former chief Katherine Cabaniss has been named by Governor Perry to replace Joan Campbell as the new Judge of the 248th District Court.

I had the opportunity to work for Katherine when she was my chief in the 174th District Court under Judge George Godwin.  Those were some of my favorite days of my career at the D.A.'s Office.  Of all the chiefs I worked for, she was one of my favorites (if not THE favorite).

Katherine was always the picture of poise and professionalism as a prosecutor.  She fought fiercely for her cases, but would look into any claim a defense attorney brought to her attention.  She was compassionate and kind when the case called for it, but could be tougher than nails when that was called for as well.  Regardless of the case she was handling, she treated everyone that she talked to with respect.

On a personal note, Katherine was my chief when I was expecting the birth of my son.  She was like having a big sister during that time.  She was so supportive and excited for everything going on in my personal life.  When she moved out of the court we remained good friends, and I was sad when she told me she was leaving the Office for CrimeStoppers.

Over the past several years, Katherine has worked tirelessly at Crime Stoppers -- coordinating events and raising money for that organization.  I have no doubt that they will miss her very much over there.

But Katherine never got so busy that she wouldn't make time for an old friend.

I had no idea that Katherine was in the running for the 248th Bench, so I was just as shocked as I was happy when I heard the good news yesterday.

She's going to make a fantastic judge who will rule fairly, compassionately, and intelligently.

And hopefully, she'll still have time for lunch with an old friend from time to time, too.

Signs Your Old Division Chief Doesn't Want to Be Seen with You

I decided this week to invite my old Division Chief to lunch.  I've mentioned him on the blog before but to protect his identity, I've given him the codename of Greg Couldhart.  I referenced him here back in 2008 as the "Play It Off Guy" in an addendum to my all-time favorite post: Stupid Elevator People.

So, I shoot him a text message, inviting him to lunch.  He accepts and we decide on a place to meet the following day after I get out of court.  NOTE:  If it isn't already apparent, my writing is in blue and Goodhart's Couldhart's is in white.

Please note the meeting point that he suggests.

The following morning, I confirm lunch plans with him.

To which he replies:

I'm starting to think he doesn't want me to swing by his office.  

I decide to firm up the time, and he replies with:

At this point, I've begun to develop a complex, so I decide to mess with him.  This attempt goes right over his head.

Finally, I just give up.

I did have to fire off one last parting shot to him, however, when it came time to meet ON ONE.

Back in the Saddle Again

I got a phone call from a friend of mine last night who asked me if the FCC had shut down my blog yet for being too boring.  I can't say that I fault him much for his question.

I was in trial for the better part of last week, and we had picked a jury the Thursday before that.  I'm not saying that being in trial monopolizes all of my time, but it does seem to quash any desire that I have to write anything on the blog.

As it always seems, whenever I don't have the ability to write something, a ton of stories that I want to write about pop up.

I was in the middle of jury selection when I was informed about the murder of Kaufman County prosecutor Mark Hasse.  I got several text messages and e-mails asking me why I hadn't posted anything on him.  Please know that it wasn't indifference.  I honestly don't know what to say.
 
Obviously any time a public servant is killed in the line of duty -- whether it be a police officer, a fireman, a prosecutor or a teacher -- it sends shockwaves through the community.  When you happen to hold the same occupation as the person killed, it becomes all the more sobering.  I didn't know Mark Hasse, but he sounded like a brave prosecutor.  It becomes a very frightening world when public servants aren't killed just in the line of duty, but because of the line of duty that they have chosen as a profession.

My thoughts and prayers are with his family and those who knew Mr. Hasse from the Dallas County District Attorney's Office and the Kaufman County District Attorney's Office.  I hope those responsible for his death are brought to Justice.

The other topics that I've been wanting to write about can wait.  I will get to them soon, hopefully.

If the FCC doesn't shut me down first . . .

Tonight's Reasonable Doubt (2/7/13)

Please join me and our host Todd Dupont for tonight's Reasonable Doubt with special guest Carmen Roe.  Carmen was scheduled to be on a few weeks ago but we had a last minute change of plans, so please tune in tonight at 8:00 p.m.

As always, you can catch us live streaming by clicking here.

Memorial Plaque Ceremony

Tomorrow (Thursday, Ferbruary 7th) there will be a ceremony at 11:00 a.m. on the 7th Floor Trial Ready Room of the CJC honoring those members of the Harris County Defense Bar who have passed away over the past year.

Those who will be remembered with a ceremonial plaque are Michael Barrow, Rayford Carter, Suzie Chambliss,  Fred Heacock, Claude Hippard, Bennie House, Travis Johnson, Jim Lindeman, Michael Mapes, Ray Montgomery, John V. O'Sullivan, Charlie Portz,  Thomas Preston and Jim Steele.

HCCLA President Chris Tritico and President-Elect Todd Dupont will be speaking, along Robb Fickman and the Honorable Jay Karahan.  Refreshments will be served afterwards and all are invited to attend.

Robb Fickman on Reasonable Doubt

Reasonable Doubt- January 17th, 2013 Episode featuring Rob Fickman from Attorney Tech Service on Vimeo.

Eric Devlin on Reasonable Doubt (Second Try)

Reasonable Doubt- January 10th, 2013- Eric Devlin from Attorney Tech Service of Houston from Attorney Tech Service on Vimeo.

Tonight's Reasonable Doubt (1/31/13)

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our special guest will our friend and criminal defense attorney Casie Gotro.  Casie has been practicing criminal defense for about ten years now and has built a successful practice with some amazing case results.  We look forward to her perspective.

As always, you can tune in and catch us live streaming at 8:00 p.m. tonight by clicking here.