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Recent Blog Posts
New Harris County Criminal Justice Blawg
Life at the Harris County Criminal Justice Center, by an anonymous criminal lawyer who started blogging on January 8th, 2008, "genuinely concerned with the way the media displays our local criminal justice system".
Harris County DA's Diversity Policy is “Pretty Much Ignored”
The general counsel for the Harris County DA's office says that the DA's operations manual provision related to diversity and equal employment, which has been policy since 1993, is "pretty much ignored as far as our actual hiring practices are concerned."
What Tangled Webs...
The Houston Chronicle has an interesting column today by Lisa Falkenberg, in which she suggests that when Kelly Siegler described the 45,000 members of Houston's Lakewood Church as "screwballs and nuts" she might not have been being entirely candid with the court.
The context: Kelly was trying a capital murder case. The defense made a Batson challenge, alleging that it appeared that Kelly had used a peremptory challenge to remove Matthew Washington from a pool of prospective jurors because of his race (Black).
When the defense makes a Batson challenge, the prosecutor must provide a race-neutral reason for striking that person. If the real reason for the strike is the person's race, the prosecutor might well be tempted to provide whatever race-neutral rationalization jumps into her mind, whether it is entirely true or not.
The Heart of the Matter
Veteran prosecutor, to veteran defense lawyer, in the wake of the moral collapse of the Harris County DA's office:
Now we're all sleazy lawyers.
Welcome Language Fans
Defending People has received lots of hits today from the Language Log. It's a good match, I think; words are criminal-defense lawyers' tools, and at Defending People we love words and are not shy about using them. We're not even above making up a word, on occasion, when there isn't already one that works.
Criminal lawyers (on both sides of the bar), like many other professionals, have their own argot. We office together (a coinage that, according to Clifford Irving [reliable source, right?] Houston's criminal defense bar created) instead of forming partnerships because we don't want to be conflicted out when codefendants come in needing representation.
Once we get a client, we enter an appearance and start going to court appearances. At these settings, we sometimes have to plead clients to agg time (that is, with an affirmative finding) or, if they're lucky, to non-agg or maybe to deferred. The difference is that they might be parole-eligible earlier if they take non-agg time than if they take agg time. We might even go open to the judge or, in other words, plead without a rec. If my guy or my hero has been in trouble before he might be enhanced, or if we're charged with our third felony, we might be habitualized or a habitual, looking at 25-to-life.
The Rosenthal-Siegler DA's Office (?)
I've referred here a time or two (okay, at every opportunity) to the Chuck Rosenthal-Kelly Siegler DA's Office. An anonymous commenter on Defending People (a prosecutor whose identity is known only to her and me) says that's not fair - that Kelly doesn't share responsibility for the missteps of the Chuck Rosenthal administration. I told her that I was willing to be convinced, but that it sure appears that Kelly has been a member of Chuck's inner circle, and in a managerial position in the office (including a stint in charge of "professional development" - training younger prosecutors), for seven years.
Everyone in that office in a managerial position shares responsibility for the wrongs perpetrated by the office and by its prosecutors unless proven otherwise The presumption of innocence has nothing to do with it: when the captain runs the ship aground, the other officers had better be able to explain where they were and what they did to prevent the allision, if they want to keep their jobs.
The Prosecutor's Reply
The prosecutor whose "Canadians" email I wrote about here and here responds:
Vivian King knows NOTHING about "the real story." It is probably a waste of breath to defend my reputation since it sounds like a portion of the defense bar has made up their minds, but to me it is never a wasted effort to defend my reputation. So let's start with the factual inaccuracies in Vivian's version:
1. There were no numbers (3) and no quote marks in the original email. It said "some Canadians." That was the word that had been used by the trial prosecutor when I asked what the holdup was on his verdict, and I took him literally. More on that in a minute. Some folks may have seen the Fox News report that made it look like I used quotation marks, which, had I done so, would be highly incriminating since that often implies a double meaning, sarcasm, or some other intended emphasis. I did not.
2. Several black prosecutors did respond to the email with questions. Only then did I realize what I had inadvertently done. Prior to that, however, the prosecutor you speak of poked his head in my office, obviously upset, and asked me about it, then left. I called up to the courtroom later to ask the clerk something and heard his voice in the background. I asked what he was doing up there and they put him on the phone. He pretty much hung up on me. I didn't try to stop the clerk from doing anything - I just wanted to know what was going on since I still didn't know the word had another meaning and could not understand his reaction at that point.
One Less Witness
The Fort Worth Star-Telegram brings us this story (H/T: Isiah Carey) of a 32-year-old Arlington, Texas man who believed that his 18-year-old stepson had anally raped the man's 8-year-old daughter. After the man's wife (the stepson's mother) made bail on her son's aggravated sexual assault charge despite the man's warning that he would hurt the lad, the man picked his stepson up from jail and then allegedly drove to an abandoned house in Fort Worth, beat his stepson with a baseball bat, and sodomized him with a metal tool.
So now the man is charged with aggravated sexual assault, a first-degree felony. He is a convicted felon, so he is facing 15 years to life in prison on that count, and could be charged with aggravated assault (for the baseball-bat beating, a second-degree felony, for which he could face an enhanced penalty of 5 years to life) and aggravated kidnapping (another 15-to-life case for him). These sentences could be stacked, for a 35-year minimum. If the State proves the allegations in the article, the man will spend at least seven and a half years in prison.
O Canada
I wrote a bit here about an email that circulated through the Rosenthal / Siegler DA's office mentioning "Canadians" on the jury. "Canadian", as it turns out, is a cryptoracist code word for "Nigger". (Others may coyly write "the N-word" instead: it seems to me that when we use that circumlocution we insulate ourselves, to our discredit, from the full horror of the word.)
There is more to the story. First, the prosecutor (I'm not going to hide his identity, but I am not going to use his name: I don't feel inclined to emphasize it here, because this isn't about him but about a culture of sanctimony in the Rosenthal / Siegler DA's office that engendered the pretense that prosecutors are better than others, which in turn led to illegality, unethicality, and general sleaze) talked about the incident with a local Fox News reporter (Fox 26 should be commended for making raw footage of interviews available as well). Credible denial, right? That's what I thought I don't know this prosecutor well, but I was prepared to believe that he didn't know the significance of his words.
More on the Fifth
In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote:
Before you are too hard on the D.A.s for telling a witness that they can't plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don't want to rat out their friend works for them too. I agree that if there is some true criminal exposure that we've got no business telling them that they can't plead the 5th. I don't know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.
In fact, a lack of interest in testifying is an excellent reason to plead the Fifth. The fact that you don't want to rat out your friend is another. So is a desire to make the prosecutor actually work. When a witness takes the Fifth, he doesn't have to justify it to anyone. You can take the Fifth and refuse to talk to the police and prosecutors because this is America.
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