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Just Because You Can, Doesn’t Mean You Should – Revisited

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One year ago today, I wrote “Just Because You Can, Doesn’t Mean You Should” to discuss the discretion of prosecutors. Prosecutors can and do choose which offenses and people they will prosecute. It’s a matter of resources. It’s a matter of proof. It’s a matter of discretion. Every case that is prosecuted requires some portion of an amount of limited resources. Just like policing – a heavy presence in one geographical region necessitates less presence in another – heavy focus in one prosecution results in a lesser focus on another.

In the past, Harris County District Attorney Pat Lykos decided to discontinue the general prosecution of “trace cases.” This involved freeing up prosecutorial and court resources which were being used to prosecute residue cases so that those same resources could be better utilized for other serious violent crimes. And that made sense: many resources were freed up. In fact, drug court backlogs were alleviated and impact courts were created in their stead. This meant that more serious cases were being taken to trial instead of using those same resources for low-level, almost non-existent offenses.

Even today, Harris County District Attorney Devon Anderson has decided to discontinue the general prosecution of first offender small amounts of marijuana. She expanded this to also include low-level thefts like shoplifting. By diverting these offenders from the jail and the court, she freed up resources to concentrate on other more serious offenders.

A year later, I am left wondering about other resources that may be better utilized. Today on Legally Speaking, John and I discussed the progression of cases in the local courts. Often, people are arrested and cases are filed, necessitating the use of substantial prosecutorial and court resources, even before evidence is available. Take for example, some DWI cases. If the accused exercises his right to refuse a breath test, the police will rely on search warrants for blood in an effort to prove intoxication. It can take 3 months or more before the results of that test blood will be revealed. Yet, the arrest is most often made and the accused is charged and supervised under pre-trial conditions for the next several months while we all wait on the results.

Incidentally, some blood tests (estimated to be between 10-15%) reveal a blood alcohol level lower than 0.08. Yes, that means in a percentage of the cases filed, the accused is actually and legally not intoxicated. Yet, they are arrested, have likely posted bond, have been placed on courtesy pre-trial supervision, paid the fees for intoxilyzer devices on their persons or vehicles, and have appeared in court every 3-5 weeks while waiting to be cleared.

The same is true of drug cases. Before anything can be done with a drug case, the evidence must be sent to an accredited lab and analyzed. This process can take 2-4 months. During that time, the prosecutor is not able to move forward with prosecution. The DA in Harris County has a standing policy against plea-bargaining these cases unless the substance is confirmed to be an illegal substance. So there is essentially a standstill. Yet, the accused is perhaps sitting in jail waiting, returning to court regularly, or maybe released on bond but still returning to court regularly.

This is an absurd use of resources. There is no reason charges must be filed in every instance up front. There is no reason to tie up police, jail, and court resources for each and every case. Counties outside of Harris have aptly figured this out. Just because you can, doesn’t mean you should.

In Nueces County, prosecutors are actually agreeing to the release of accused of possessing synthetic marijuana. Knowing it will take more than 6 months to have the substance analyzed, they are recommending the release of those accused. With analysis taking an average of 9 months to one year, they recognize the accused could remain in jail longer than the maximum punishment of 180 days in the county jail. This is a matter of resources, and perhaps justice. Jails are routinely overcrowded. The Nueces County jail has been at or near maximum capacity, and this is an opportunity to ease the overcrowding and refocus prosecutorial resources unless and until a lab confirms an actual illegal substance.

Yet, Harris County clings tight to the notion that prosecutions must be immediate and linger, even where evidence will not be available for some time. Yet, Harris County faces the same jail overcrowding. Yet, Harris County prosecutors have the same discretion: they do not have to file the case unless or until evidence is available.

But, apparently, that’s how we’ve always done it so it is most likely to continue. Because they can, they will. And not much will change.

 


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Just Because You Can, Doesn’t Mean You Should

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Sure, a prosecutor can choose to prosecute a case, but that doesn’t always mean he or she should.

Trace Cocaine Cases

Years ago, then Harris County District Attorney Pat Lykos made the choice to decline prosecution of trace amounts of cocaine. This didn’t mean she approved or condoned cocaine possession. It didn’t mean cocaine cases were not prosecuted. It simply meant she chose to use her limited resources for more serious cases, cases involving more than just residue. Under her watch, trace amounts of cocaine meant residue left on a baggie or pipe; something that was may not even be seen, and certainly was not capable of being used, but could be tested for or seen through a microscope. While she was widely criticized by her opponent in the next election cycle for her position, it made sense and it freed up judicial resources and taxpayer money to focus on more serious crimes.

Since her defeat and the return of the prosecution of trace cases, we saw a large increase in these cases which necessitated the creation of a separate “state jail court” as we called it. This extra court had to be staffed and operated seven days a week just to handle these cases. This court had to be funded by the tax dollar. In this court, cases would languish on the docket, with defendants mostly sitting in jail unable to afford a bond. Defendants in this court were rarely offered treatment and simply moved on from the county jail to the state jail, eventually to return to Harris County and begin the cycle again.

Perhaps it is time once again to consider whether or not these cases should be prosecuted.

Interestingly, with that extra court tied up on such relatively small cases, we saw other courts becoming backlogged as well. This October, the state jail court was repurposed and became what we call “impact court.” Impact court is a trial court meant to ease the backlog of felony cases, many of which are sexual assaults, robberies, and murders. Certainly seems we should have focused resources on these cases all along and not worried so much about trace cases.

Small Marijuana Cases

Jeff McShan, spokesperson for the Harris County District Attorney’s Office, told the Texas Tribune in June, misdemeanor courts are now a mess and are backlogged with more than 10,000 marijuana cases. To ease this logjam, the District Attorney created its First Change Intervention Program aimed at removing non-violent low-level marijuana cases from the courts.

Not only was this program designed to divert cases from the court, it also sought to easy jail overcrowding by diverting these non-violent citizens from the local jail.

The program, in terms of a participant’s completion has been largely successful; however, in terms of diversion the program has been less than stellar. Diverting only about 19% of the program’s participants from the jail and the courthouse, the program has made little impact on these valuable resources.

Perhaps it is time to rethink prosecution of these cases. The District Attorney could easily force a diversion in almost all these cases but chooses not to.

Assault / Domestic Disturbance

Here, you will notice i didn’t use the term domestic violence. Certainly, true violence whether domestic or otherwise, should not be tolerated. But here, I’m talking about disturbances that are routinely prosecuted despite the participants’ desire.

All too often we see cases where the police are called to a disturbance. Emotions are usually high as the police arrive and seek to determine what happened. Perhaps the two participants in the disturbance were upset. Perhaps they were arguing. Perhaps things got out of hand and one participant pushed the other back. Perhaps that push, meant to place distance between the two, resulted in one sustaining a red mark to her arm. That red mark is most often referred to as an injury and the other person is arrested, taken to jail, and prosecuted. Perhaps one party stretched or embellished in a moment of anger.

Now, should the “injured” party settle down and notify the prosecutor that things just got out of hand and she really doesn’t want her companion to be prosecuted, that case is immediately sent to the “family criminal law division” for follow-up and continued prosecution. In effect, the injured party is given no say in whether or not the prosecution goes forward.

Many of these incidents involve no real injury and no repeated violence. Yet, they are prosecuted.

Again, not that prosecutions of abuse should be ignored, but many of these instances do not amount to abuse. They are single instances of heated arguments.

Prosecutions, while great for business, must be taken with care and insight into the expenditure of valuable resources. Prosecution: just because you can, doesn’t mean you should.


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Prosecutor Accountability?

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Texas leads the nation in convicting innocent people. Appalling! This is not a lead to be proud of.

According to the National Registry of Exonerations, Texas led 2013 in convicting innocent people, and over the years, Texas has always remained in the top four states for convicting innocent people.

Convictions of innocent people can be linked to a variety of sources from junk “scientific” evidence to poor eyewitness identification. And while not always a contributing factor, prosecutorial misconduct certainly adds to the problem.

In New York, legislation has been proposed to create a State Commission on Prosecutorial Conduct. The idea is similar to State Commissions across the nation which deal with judicial conduct. The commission becomes an investigatory body able to review complaints against prosecutors and determine disciplinary measures where appropriate.

Prosecutors have the ability and unfettered discretion to deprive citizens of their liberty. This is a tremendous power which historically goes unchecked. Currently, prosecutors enjoy immunity for most of their actions; they cannot be successfully sued for even egregious acts of misconduct. They are shielded by appellate courts who find misconduct but excuse it as “harmless” error. They are subject to great abuses of power because there is no effective oversight.

New York is trying to change that. Perhaps it is time for Texas to take a true lead and setup our own Commission on Prosecutorial Conduct, a system of checks and balances that might hold prosecutors liable for this misdeeds when they make their own rules.

With abusive prosecutors like Ken Anderson, Charles Sebesta, and Kelly Siegler, Texas needs to step up and find accountability in a system of justice that no longer undermines public trust.

Prosecutorial abuses, like any other abuse, cost the taxpayer hundreds of thousands of dollars. Prosecutorial abuses undermine the fairness and integrity of our system of justice. Prosecutorial abuses must stop.


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Looking for the Truth Shouldn’t Cost Friendships

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Maybe you have been following the David Temple case. Maybe you haven’t. In short, David Temple was convicted of killing his wife in a totally circumstantial cold case prosecuted by Kelly Siegler, former Harris County Assistant District Attorney turned semi-celebrity on TNT’s Cold Justice.

In case you hadn’t followed the events here is what you need to know: prior assistant district attorneys and grand juries declined to indict or charge David Temple in this murder. Eventually, Kelly Siegler reviewed the case and obtained an indictment. She tried the case and David was convicted. On direct appeal, the court affirmed the conviction. David has always maintained innocence and his lawyers (Dick DeGuerin, Stanley Schneider, and Casie Gotro) always believed there was more than what the prosecutor revealed. In particular, there were alternate suspects which were not fully disclosed to the defense – in violation of the law. Fast forward, the alternate suspects started to percolate and develop years later. When a special prosecutor (appointed by then District Attorney Pat Lykos) and District Attorney Investigator Steve Clappart started reviewing the case and the alternate suspects, BOOM, they lawyered up — with lawyers arranged by Kelly Siegler. Throughout this process, many reports and witnesses were hidden from the defense attorneys. Tapes were denied to be in existence. And, Kelly sought to use influence within friendships at the District Attorney’s Office and law enforcement to derail any new investigation.

But that wouldn’t stop Steve Clappart nor John Denholm.

I’m proud to say I’ve known Steve my whole life. He was my uncle’s best friend from high school and thus a close family friend from before I was born. I’m proud to say I’ve known John for a great many years. He worked in Homicide when we first met. He since became an attorney and we were lucky enough to be able to hire him. What I can tell you about both of these men: their word means something. It is with honor that they seek the truth, where ever it may be found. Since 2007, while still working in Homicide, John has been pointing out problems with the prosecution of David Temple.

Fast forward now to the past year or so when David’s current lawyers, Stanley Schneider and Casie Gotro, started investigating and litigating a writ of habeas corpus on David’s behalf. (A writ is a collateral attack on the conviction – not a direct appeal – and can include the introduction of new evidence.)

As Steve and John stood by their convictions, they began to be resented by folks within the District Attorney’s Office and law enforcement. How could they dare challenge a conviction? But you see, that’s just it…true friends, worthy friends, respect the process and the pursuit of justice. For their work, I applaud them both.

As John says, “Someone blew this woman’s head off. Why wouldn’t you want to find him?” Why not at least look to see if you got the right guy?


In case you missed it, Lisa Falkenburg, Pulitzer Prize winning journalist from the Houston Chronicle, applauds them too!


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Not Your Typical Hollywood Ending

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Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

In your not-so-typical Hollywood ending, the girl does not get the boy! In this one, the girl loses everything after lying and cheating.


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nolle prosequi

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nolle prosequi
(no-lay pro-say-kwee) n. Latin for “we shall no longer prosecute,” which is a declaration made to the judge by a prosecutor in a criminal case either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution’s case or the district attorney has become convinced the accused is innocent.

Love hearing “nolle” for our clients. Sometimes a nolle is based upon the prosecutor recognizing the flaws in their own case but most often nolles are the product of the defense lawyer. Not that a defense lawyer can issue a nolle, but the prosecutor usually has only one version of facts: those from the police.  And, as you know, there are always at least two sides to every story.

Law enforcement can often focus on facts and circumstances which support their belief in a criminal charge.  Sure, they may “interview” the suspect but that interview is geared toward obtaining an admission.  Most officers are leery of anything and everything a “suspect” has to say.

Defense lawyers, charged with a duty to investigate the facts, will study the prosecutor’s evidence (and in turn evidence supplied by the police) and then compare it with the client’s version of facts.  This is where a client is best served in being truthful with his or her lawyer. A defense based on lies will surely fall like a house of cards when its presented in trial and subject to examination.

It is often the defense lawyer’s investigation that reveals (1) flaws in the prosecutor’s case, (2) other versions of facts, (3) additional evidence that was before unknown, and (4) the innocence of the accused.  In the appropriate circumstances, the defense lawyer can share his or her investigation, or parts of it, with the prosecutor so that the prosecutor will issue the nolle prosequi.


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district attorney policy: fact or fiction?

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In the Harris County Public Defender’s Office CLE today and Judge Belinda Hill spoke on behalf of the District Attorney’s Office. The look of surprise on her face was priceless as she heard some of the “policies” we hear from assistant district attorneys in court.

She will follow up on some of these but, essentially, there is no policy against offering 12.44(a) once a case is transferred to state jail court. There is no policy requiring you to request pre-trial diversion within 30 or even 60 days of first court appearance (there is no set time – despite written signs in some courts attached to prosecutor buckets).

It is the policy of the DA to encourage grand jurors to hear from witnesses, including the accused should he wish to appear, and to allow defense attorneys to present evidence via a grand jury packet (unedited or filtered by the prosecutor) when requested.

So, next time a prosecutor tells you it’s against policy, ask yourself (or administration) if that “policy” is fact or fiction.


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