Maybe We Can Fix It At The Auto De Fe

 Posted on December 17, 2009 in Uncategorized

Nobody could possibly have predicted way back in August that Pat Lykos's failure to seek outside counsel to prosecute Don Jackson, a misdemeanor judge before whom she had appeared (through her assistants) every court day since January, and before whom she may have to appear again every court day until one of them leaves office, would cause a problem. Well, almost nobody.During the bit of trial that I watched (and tweeted) this week, there was some evidence that the prosecutor who made the decision to prosecute Judge Jackson had not gotten along well with him when she was assigned to his court-that in fact he had asked the DA to move her to a different court. That made it look like Judge Jackson's prosecution might be motivated by personal animus.

Now the defense has discovered that Lance Long, who is prosecuting Judge Jackson, signed a petition for Judge Jackson's opponent in the upcoming judicial elections, which kicks things up a notch from personal to political animus.

There's nothing inherently wrong with a lawyer supporting the opponent of a judge before whom she appears. But there is something downright improper about a lawyer prosecuting a judge whom he opposes politically. A violation of the disciplinary rules? Probably not. Is it unethical? At first impression, yes. Does it create an appearance of impropriety? Unquestionably.

A district attorney has to appear untouchable. Any suggestion of corruption, any colorable claim that the office is being used for political ends in one case, renders every prosecution suspect. I was bragging to a client today about the Harris County DA's Office not being corrupt. We were not, I thought, like Maricopa County, where-just by way of example-the County Attorney files indictments against his political opponents on the bench. How wrong I was.

If Don Jackson is convicted, the questions will always exist: Was this a political hatchet-job by those who, because he doesn't lean far enough toward the prosecution's side of the table, were going to see him off the bench one way or another? Is the DA's Office sending a message to other fairminded (that is, not blatantly prosecution-oriented) judges that they may be targeted too?

If Judge Jackson is acquitted, the same questions will always be asked. Pat Lykos might act to mitigate that (end the prosecution due to the overwhelming appearance of impropriety (while supporting her assistants fully hahahahahaha sorry couldn't stop myself)), but she can't prevent it.

It didn't take a rocket surgeon to predict apparent conflicts of interest keeping the Harris County DA's Office from objectively deciding how to handle Judge Jackson's case. The one thing that Pat Lykos could have done, way back in the beginning, to prevent this clusterfuck would have been to ask an outsider, from another county far from Houston and with no political axe to grind, to investigate Judge Jackson and prosecute if necessary. August would probably not have been too late.

But did they listen to me? Noooooo.