Posted on
January 7, 2012 in
One:
Murray Newman reports that Pat Lykos has been subpoenaed to testify before the 185th Grand Jury.
My guess is that it’s unprecedented for a Texas grand jury to subpoena a sitting District Attorney.
Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the FIfth, it’s because she really means it.
Two:
Newman also brings us this email from Jim Leitner to the rest of the DA’s Office:
—–Original Message——
From: Leitner, Jim
To: All DA Employees
Subject: Grand Juries for the November Term 2011
Sent: Jan 5, 2012 9:43 AMI have just been notified that the Judges have terminated all Grand Juries that were empanelled for the November Term 2011. That termination, from what I understand, has been backdated to December 31st. Therefore, do not take any cases in to any Grand Jury until the Judges have created and sworn in Grand Juries for the January Term 2012. Also, don’t issue any Grand Jury subpoenas until we have new Grand Juries empanelled. I am meeting with Judge Hill today to make sure that we have the right information on this, but until you hear otherwise proceed as if there are no Grand Juries available until the new term Grand Juries are sworn in. This does not affect the 185th or 232nd Grand Jury which have been extended for pending investigations.
Jim
Murray rightly points out that, given the circumstances under which the grand juries were terminated (new statute as of 1 September that set terms for grand juries conflicting with existing grand juries’ terms and might have led to challenges to indictments handed down by previously constituted grand juries), The Harris County DA’s Office’s management should have planned ahead for this eventuality.
(Possible solutions: get the district courts to explicitly extend the terms of more grand juries, as they did with the two investigating DA misconduct; get the judges sometime between September and December to form new grand juries to begin 1 January; or warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012.)
Murray also sounds the alarm about “a danger to the public” resulting from the lacuna in grand-jury coverage:
When a person is arrested and incarcerated prior to trial, the District Attorney’s Office has 90 days to get that case indicted. Otherwise, the person accused is entitled to a bond they can make.
That applies to all felony charges — from Aggravated Sexual Assault to Aggravated Robbery to Murder. If the deadline goes past the 90 days, the end result is those folks will be getting back out on the street.. . . . .
The trial prosecutors are about to find out that if they were banking on going to the Grand Jury this week or next, that they are not going to be able to do so.
And some really bad people are potentially about to be back on the streets.
Paul Kennedy says, “So freaking what?“
So the state’s ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What’s the problem, Murray?
We’re criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone’s freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.
I mostly agree with Kennedy. (Only “mostly” because even criminal-defense lawyers live in the community. Our job is to make it harder for the state to take away the client’s freedom; this doesn’t necessarily extend, in general principle, to making it harder for the state to take away people’s freedom. Even the best criminal-defense lawyer might reasonably think that some (non-client) people need to be locked up.)
But people charged with crimes in Harris County are routinely held illegally without bail, and routinely incarcerated in lieu of punitively high bail that has no objective basis in flight risk or danger to the community. The law often supports high bail, but common sense doesn’t. Most of those who might get out on bail because of the government’s delay don’t need to be in jail anyway.
One solution to the problem Murray sees would have been for Lykos to warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012. But here’s the thing: Lykos is not the smartest lawyer in the DA’s Office. (“Lateral Hire” Lana Shadwick is. No, just kidding.) Prosecutors other than Pat Lykos knew last year that their might be problems with grand juries continuing after the end of December—they commented on it on Murray’s blog in talking about the 185th Grand Jury’s investigation.
So there were others in the DA’s Office who might have been in a better position than Lykos to predict that there would be some grand-jury problems at the beginning of 2012; like her, they didn’t do anything about it. A lot of balls got dropped.
I suspect that some of Murray’s shrillness might be a result of his political support for Pat Lykos’s opponent in the upcoming Republican primary. But while the failure to anticipate some hiccups in the grand-jury system is not a credit to Pat Lykos, it’s just as much a discredit to those line prosecutors who were “banking on” going to the grand jury this week.
I think there was rightfully some confusion about whether on not the new law applied to already-sitting grand juries as opposed to those empaneled after January1st. Maybe Greg Abbott should have been proactive and sent all district attorneys clarification. Lykos likely isn’t the only DA who was caught unprepared for this change in the law, although Murray would probably swear she was. While I could never endorse Lykos, neither could I endorse Anderson since you so eloquently dissected the political aspects of how the grand jury investigating the BAT van problems came to life in your “Die by the hatchet” blog. Could we do a write-in campaign and elect George Parnham?
When I was the pro tem in East Texas, I brought the sitting DA to the grand jury. He was subsequently indicted, asserted his 5th Amendment privilege at trial, was acquitted, and lost reelection in a landslide.
When I was a prosecutor, the District Attorney’s Office, they pretty much spearheaded the operations of the Grand Jury (hence the description of Grand Juries being described as a tool of the D.A.’s Office). As Grand Jury terms came to a close, we would get notifications to make sure that our cases weren’t going to cross the 90 day list during the one week of down time as new grand juries were being sworn in and oriented.
Although I don’t dispute the fact that the judges have responsibility in this problem as well, my belief is that the District Attorney’s Office should have been heavily involved in making plans the second they learned of the change in legislation. I heard it from several sources that the upper-Admin was so excited about the prospect of the 185th Grand Jury expiring that they laid behind the log on notifying the judges of their concerns.
Although I understand that the legislation was confusing, in a major area such as Houston, they had to be prepared with a contingency plan. At a minimum, they should have been notifying the ADAs that there was some confusion and not to take any risks with the 90 day lists in the event the 2011 grand juries were nullified. Furthermore, they should have been seeking clarification with the Attorney General’s Office.
If given the proper amount of thought, the D.A.’s Office should have told the judges that they should be striving to find potential Grand Jurors through the month of December who would be ready to serve for six months, beginning January 1. They should have also figured out what that schedule was going to be. In short, the D.A.’s office obviously had a tremendous interest in how this shook out.
Them choosing to ignore it would be like failing to go to the doctor when you see potentially bad symptoms. You may not be able to cure yourself, but you have a vested interest in notifying those who can.
Mark, criminal defense attorneys DO have an interest in this because our clients do, too. I have a couple of clients right now who are sitting in jail, unindicted, waiting for the grand jury to hear their cases. Why do I care? Because I am presenting evidence to the grand juries and am asking for their cases to be no-billed. That can’t happen unless there is a grand jury around to hear the cases. The current crisis, caused by the negligence of the Lykos DA’s office, means that (1) they have to sit a full 90 days before they can hope to be out on a PR bond, or, (2) the DAs will rush their cases into whatever grand jury is available in a mad flurry and they will not receive the due consideration they deserve, raising the risk of indictment even though the cases are (at best) weak.
The DA’s office used to have a legislative liaison. When I worked there, it was Kevin Petroff. His job was not only to keep an eye on crazy bills under consideration, but also to keep the office abreast of changes that did get signed into law. Petroff is no longer there, yet another talented prosecutor Lykos has driven off to greener pastures, but they should still have a liaison (unless the District Attorney has decided that such salary funds should be used for “Media Relations” directors and other Spin Control folk instead.)
There is really no excuse for this. The District Attorney’s Office should have seen this problem coming and taken action. They did not, and it has created not only an inconvenience for the participants and a potential danger to the citizens of Harris County, but also a deprivation of liberty for those who would have been free sooner had the chief prosecutor of Harris County done her job.
And another thing, this point directed at Paul. Grand juries are not an instrument by which the State “infringes on our freedom and liberty.” They are meant as quite the opposite: A safeguard against overzealous police officers and prosecutors, meant to require the imprimatur of citizens before a person can be deprived of their liberty via a felony charge. When grand juries can’t do their job, innocent citizens sit in jail without the benefit of any review by their peers. The accused cannot even request a jury trial until a grand jury has seen the case and made a decision to indict.
While undoubtedly a few clients will benefit from the gross negligence of the Lykos DA’s office — as many, many to date have already benefitted in myriad ways — there are many others who will be unjustly punished because of this mistake, just as are the many clients who cannot resolved their cases because of the institutional paralysis that has gripped the rank and file ADAs over the last 3 years. Too many are unwilling to make a decision — ANY DECISION — for fear that it will be scrutinized and unfairly held against them later. As a result cases languish that most reasonable ADAs, free to exercise their prosecutorial discretion, would otherwise have long ago dismissed.
My point is this: Having an inept and horribly mismanaged DA’s office is not always to the benefit of our clients. Indeed, it could easily be argued that is is more often than not to their DISADVANTAGE.
I recall reading what I thought was a strange bit of information on Murray’s blog when this grand jury that is investigating the BAT vans was empaneled. He said something to the affect that Judge Brown empaneled her grand juries the same as petit juries are chosen, at random, but, if indeed this was fact, then how’s it possible that Mark was able to link them all together in his “Live by the hatchet” blog? I’m no fan of Lykos, but everything about this GJ stinks like rotting fish. My point is that if all is as Trent says “A safeguard against overzealous police officers and prosecutors”, then maybe someone at the federal level should be taking a look into just exactly how this GJ was empaneled.
I’m sure Lykos is fully aware of everything that Mark pieced together in the aforementioned blog, maybe even before she read the blog herself. I’m also quite certain that Lykos knows those within the federal system whom she could ask to investigate this GJ. What I’m wondering, however, is if she’s waiting for them to issue an indictment first before she asks them to conduct an investigation. If they were to investigate now, no crime has been committed. But if they choose to issue an indictment, I think that would change everything, and place the members of this GJ along with Judge Brown, and possibly a lot of others, in a position to be criminally indicted for conspiracy. Could it be that they all know this, and are just trying to sully Lykos’ reputation before the election?
Mike Paar,
I didn’t say that Judge Brown empaneled her Grand Juries that way, I said Judge Mary Lou Keel empaneled hers that way. Her court also has a Grand Jury investigating the District Attorney’s Office.
I am curious as to why you think that the Feds would be investigating the 185th Grand Jury for. A conspiracy to do what? Investigate them? Whether you think the motives are pure or severely tarnished, what on Earth is illegal about them? I’m confused.
Murray, I apologize for not re-reading your blog and confusing the two GJ.
Maybe there hasn’t been any laws broken. Yet. But if the 185th returns an indictment on some trumped-up charge, then there might be a few laws broken. It would depend on whether they just conspired to investigate Lykos, or if they conspired to indict her, so that “their guy” could become district attorney. Are we supposed to believe that, in light of Mark’s blog “Live by the hatchet”, that it’s some grand coincidence that this GJ is composed of these actors who all have a vested interest in the outcome?
Maybe Lykos doesn’t even need a federal GJ to investigate, she could just have one of the grand jury commissioners empanel a GJ favorable to her, and have them investigate the 185th. Quite a few had to have been in on this ruse, it would be difficult for all of the conspirators to get their stories in order. If Lykos chooses to go this route, hopefully she’ll use a little more intelligence and not make it so easy for some smart, snoopy lawyer like Mark to connect the dots as he so quickly did with the 185th. In fact, I’ll bet that Mark dreads his next case in front of Judge Brown. Good luck with that, you poor but brave soul.
Kudos to Judge Keel, if she indeed empanels her GJ randomly. The legislature should have made it a law for all of them to be empaneled this way, instead of lengthening their terms which only narrowed the available pool from which to find jurors.