(Where I practice, in California, Wheeler is a state case that expands on Batson a bit, so I have always referred to it as a Batson/Wheeler challenge.)

Posting more or less anonymously like I am, I reserve the right to be lazy/sloppy. But thanks for setting it straight.

I couldn’t agree more. Keeps ‘em honest and on their toes, and we all need that.

You are doing a great service with this blog, in my opinion. Very enjoyable to read, and wonderful coverage/discussion/exploration of important issues. Please keep it up.

On a more serious note, I live across the country from y’all so I had not seen the headline screaming “INCOMPETENT” (in a size of bold block font normally reserved for the declaration of war, etc.) I will be the first to admit that my knowledge of this issue has come mostly from reading this blog. But from what I’ve seen, I still think DA Lycos responded appropriately. The newspaper’s actions may have made Lycos’ comments seem harsher and out of line, though, so I also agree with Lycos’ retraction.

“I can’t think of a case under previous administrations where prosecutors were disciplined for doing something that hurt or could have hurt the rights of the accused,” said Mark Bennett, president of the Harris County Criminal Lawyers Association.
“It’s an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones.”

That revolutionary praise of our Republican D.A. was in the Houston Chronicle, not my pissant little blog that nobody reads.

Even here, I spent six paragraphs praising Lykos’s disciplining her subordinates before two paragraphs criticizing her calling them “incompetent”. How much more credit shall I give her?

So I guess I’m either not wise enough or not thick-skinned enough to admit my hyperbolic misstep. I can’t make every point in every post; the point of this particular post was that calling them “incompetent” was wrong. Thus the title. D.A. Lykos inerasably linked two good lawyers’ names to the word “incompetent.” Thus the tags.

It was some time after I published this post, by the way, that D.A. Lykos (to her credit) publicly apologized for her use of the word “incompetent.”

To take a firm stand that ALL discrimination is ALWAYS intolerable — even when motivated by strategic rationale and not racial hatred — is the RIGHT thing for any public official to do. For the leader of the HCDAO (the office that defended death verdicts assessed while defense counsel dozed, sought death against a juvenile even after Roper v. Simmons had been argued, and for decades defended the most preposterous but facially neutral excuses for eliminating 90 and 100% of African-Americans from jury pools) to make such a statement and back it up with clear and decisive action is a sea change that will impact everyone who walks in the door of the CJC.

To announce such a profoundly important event under the title “Lykos got it wrong” is to make the same error of sloppy overstatement that she made when she called her staff incompetent. The text of the posting does welcome progress, but the point is lost in a missive tagged only with “incompetent” and “Pat Lykos.” Where is the tag for racial justice, for fair juries, for due process? Maybe the roll-out of this decision was clumsy; maybe her language was careless and sloppy; maybe she bruised feelings and egos in her manner. But, where it really, really mattered, Lykos got it RIGHT. And, with regard to her unwise comment, she had the guts and good sense to publicly apologize and correct herself.

I’ve never met Pat Lykos and don’t know much about her. I’ve liked and respected Mark Bennett for years. I hired him as co-counsel in a capital case and even chose him as my own lawyer when I was personally served with a subpoena for privileged materials belonging to a client. He is my friend. Lykos is not. But, in this instance, I think Lykos is owed a retraction. Knowing Mark, he is wise enough and thick-skinned enough to admit his hyperbolic misstep and give credit where credit is most certainly due.

And yes, it can also be used against the defense. In fact, even White defendants can complain of Batson error: Powers v. Ohio, 499 U.S. 400 (1991).

The idea of Batson challenges also extends to sex-based peremptory challenges. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

The court later extended the same rule to civil trials in Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991).

If Patty really wants a good office, she needs to start leading from the front. I don’t think that the troops would hold it against her that she has a learning curve and loses at first. She needs to try. Her present course insures an office of snivelling yes men, constantly cowering until its time to pick up their paycheck, lead by one all recognize as just a politician.

Unfortunately, knowing her well, I think that’s what she wants.

In any other major government organization, they would have at least gotten a hearing. Let’s face it, even cops who get caught doing horrible things on video get their hearings.

In my opinion, Lykos was probabably absolutely THRILLED that this happened. She got word of the occurence and immediately telephoned the Chronicle herself. It was to her political advantage to show that she took these allegations seriously and react before at least hearing their side of the story. She may have done the politically wise thing, but her leadership skills are absolutely pathetic.

Look for some folks to be quitting in disgust as soon as they can line something up on the outside.

But there is also a silver lining in this that will make the prosecutors think long and hard before striking minorities in the future. Maybe now we will start to see juries that more closely resemble a jury of the defendant’s peers. The remedies in the law for Batson had no teeth and no real incentive to refrain from this harmful practice.

Issues of race matter. Most people don’t want to be identified as racist, but we all use racial stereotypes in some form or fashion, whether we are aware of it or not. I have noticed that when I make a Batson challenge, the prosecutors usually take it personally. You make a Batson challenge and the prosecutor thinks you’re calling him a racist. I’m not. I just want my client to have some people on the jury that look like him.