Runaway grand jury: The aftermath

Not content to sit down while the grand jury investigated the doings-on in her office, Harris County District Attorney Pat Lykos decided to arrange her own investigation. Of the grand jury.

According to the Houston Chronicle, Ms. Lykos ordered investigations into the grand jurors, two judges (Marc and Susan Brown) and Mike Anderson, her opponent in the GOP primary. According to Ms. Lykos, it was a "cursory internet search."

Locked in her shell up on the sixth floor of the Criminal (In)justice Center, Ms. Lykos has apparently lost touch with all semblance of reality as she just can't understand what the problem is.

Just how would it go over if it turned out a defense attorney was conducting an investigation into the backgrounds of the grand jurors? Would Ms. Lykos and her minions have such a relaxed attitude if that were the case? I think not.

"The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury's radical, erratic and what we believed to be unlawful action." -- Pat Lykos

Of course rule number one when you get caught in a bad situation is to minimize it. Rule number two is to shift the blame. The unspoken rule is to avoid any responsibility for your actions. And don't forget the corollary, when in doubt, throw someone else under the bus.

Lykos said she relied on assertions from Don McWilliams, her chief investigator, that there was no "investigation." 

However, according to three sources familiar with the situation, McWilliams was asked by the district attorney's first assistant, Jim Leitner, to "investigate" at least two grand jurors "for the boss." The sources did not want to be identified because they were not authorized to discuss the situation.

Poor Jim. He had the audacity to run against Ms. Lykos in the 2008 Republican primary and, after finishing third in a three horse race, swallowed his pride and went to work for Ms. Lykos. His reward for his loyalty to Ms. Paranoid are the tire marks on his back.

Now here's where it gets interesting. Jack Abercia, the former constable for Precinct One, got himself indicted because either he used, or allowed someone in his office to use, a website available only to law enforcement agencies to run background checks on people. Did Mr. McWilliams' "cursory internet investigation" involve the use of such a website or did he just google the names?

McWilliams went to his courthouse office and used two websites that collect personal information for use by law enforcement and others, according to the sources. He called Lykos with his results and left a voicemail. 

A week later, Leitner directed McWilliams to expand the investigation to state District Judge Susan Brown, her husband who also is a judge and Mike Anderson, a former judge who is running against Lykos in the Republican primary, according to the sources. 

On Thursday, Lykos said confidential law enforcement databases used by authorities to check criminal records were not used. It is illegal to use those websites for unauthorized investigations.

These revelations raise serious concerns about the ability of Pat Lykos to serve as Harris County District Attorney. While her actions may or may not have been legal, they certainly add to the stench emanating from  1201 Franklin. A grand jury is supposed (and I stress the word "supposed") to be an independent body determining whether or not there is probable cause to believe someone committed a criminal act. What message does it send to grand jurors when the sitting District Attorney is using her office to investigate members of a grand jury while it conducts an investigation?

And what was the purpose of the investigation - to intimidate or to blackmail? Ms. Lykos and her minions have some serious questions to answer. But don't hold your breath waiting to her them.

Pressure builds on judge to step down

Well, what do you know, Christopher Dupuy is back in the news.

If you don't know, Mr. Dupuy is the judge in County Court at Law No. 3 in Galveston County. At the time he was running for the bench the State Bar had placed him on probation for violating ethics rules. The seat he ran for was held by the judge in the divorce case filed by his now ex-wife. His platform was a bizarre assortment of right-wing positions that would have made any wingnut proud. He sits on the bench because Galveston County voters in the north end of the county blindly selected the straight ticket option for the Republicans.

SUSPENSIONS On Oct. 9, 2009, Christopher Dupuy [#24003931], 38, of League City, accepted a six-month, fully probated suspension effective Oct. 9, 2009. An evidentiary panel of the District 5 Grievance Committee found that Dupuy’s professional websites contained statements that omitted facts necessary to make the statements considered as a whole not materially misleading. Also, Dupuy’s advertisement in a telephone directory did not conspicuously publish the name of at least one lawyer responsible for the content of such advertisement, and did not disclose the geographic location, by city or town, of Dupuy’s principal office. Dupuy failed to file the telephone directory advertisement with the State Bar Advertising Review Committee.

Dupuy violated Rules 7.02(a)(1) and (a) (2); 7.04(b), (c), and (j); and 7.07(b). He agreed to pay $2,500 in attorney’s fees and costs.

-- Texas Bar Journal, January 2010

If you've ever had the "pleasure" of practicing in Judge Dupuy's court you know what an interesting experience it is. I had a case in which the prosecutor and I submitted an agreed motion for new trial. When I handed him the motion, the judge looked at me and asked what he was supposed to do with it. I told him it was an agreed motion and that he should sign it. He took it under advisement and made up wait for 45 minutes while he went back in his chambers and did God knows what before returning to the bench.

In his latest misadventure, Mr. Dupuy was fined $7,500 by a judge for improperly trying to remove a judge who was hearing a malpractice case against him filed by a former client. The $7,500 fine is in addition to an $1,800 levy ordered against him for failing to appear at a deposition in that case. David Bryant, a Houston attorney handling the suit, told the Houston Chronicle he thought he'd have to attach Mr. Dupuy's bank account in order to get the money.

Dupuy is also under investigation by the Galveston County District Attorney's Office for allegedly lying about his residency on the application he filed to run for the bench.

The situation is so bad that the Galveston Daily News is calling for Dupuy to resign from the bench.

The man is not qualified to sit on the bench. The unethical manner in which he ran his practice. Sleeping with an attorney practicing in his court. Lying on his application to run for office. The unprofessional way in which he conducts business in his courtroom.

The folks in Galveston County who voted straight ticket Republican got exactly what they deserved.

Transcript of DuPuy hearing

Book review: Deadly Monopolies

I just finished reading  medical ethicist Harriet Washington's latest book Deadly Monopolies, a look into the world of the pharmaceutical industry.

Back in the good ol' days, universities and hospitals were the breeding grounds for new medicines. Researchers collaborated in order to find ways to fight common disease. Most new discoveries weren't patented because the research dollars came from the federal government.

That all changed in 1980 with the Bayh-Dole Act that allowed corporations, universities and hospitals to patent their discoveries even if the funding to conduct the research came from US taxpayers. At that moment, medical research ceased to be a race to find the cure and became, instead, a race to lock in profits. When that is factored in along with a newfound ability to patent genes, cell lines and other biological material, big pharmaceutical companies stood to make vast fortunes.

Along the way the concept of "informed consent" was cast aside as it was a hindrance to labs, hospitals and drug companies testing their wares on the public. So much for ethical considerations - we have money to print.

In the United States, hospitals across the country subjected patients to trials involving artificial blood. No one asked these patients if they wanted to participate in the study - if they happened to be taken to the right emergency room in the right city, they received the artificial blood.

The attempt may have been noble - as may have been the trials involving substitutes for saline solution for patients who suffered a traumatic injury in the field - but the method was not. The people who received the artificial blood were never consulted to determine if they minded being guinea pigs. They were never informed of the possible risks involved in pumping the artificial blood into their bodies.

In Africa the drug companies conducted trials of drugs to fight the scourge of AIDS. But there was a catch. In trying to determine how effective the new drugs were in fighting AIDS, the control group in the trial was given a placebo. That's right - some in the study were condemned to die while others received a chance to live.

In this country a test conducted under that dynamic would never be allowed. In order to test the effectiveness of a new treatment, the control group needs to receive the currently accepted standard of care. This gives researchers the ability to compare the effectiveness of the varied treatments. Under no circumstances should a person be allowed to die because he's been given a placebo.

Researchers argued that the trials were ethical because the current accepted standard of care in Africa for AIDS was no treatment at all. And, of course, none of the test subjects were ever told they might be given a placebo rather that the real drug.

If you're not irritated enough at the high cost of health care and prescription medications, after you read Deadly Monopolies, you will be.

Do as I say, not as I do

So, you want to take advantage of some information you obtained as a result of your position to make some money in the stock market? Some information that ordinary members of the public are privy to?

If you work in the private sector, just pack your toothbrush if you do because los federales will throw the book at you. Nevermind that markets operate on imperfect information and those who make money do so because they're able to take advantage of the information gap.

We can't have corporate executives taking advantage of their inside information to turn a buck on Wall Street, can we? Putting their own financial interest above that of the company they were hired to run - that just won't do.

But, if you are a sitting member of Congress, by all means, trade away. Gather up all the information you can at that subcommittee meeting. Take notes when that guy from Treasury gives you a briefing. Figure out who's going to win, and who's going to lose, under the terms of that proposed bill.

It's all okay.

After all, the rules that apply to the rest of us don't apply to the 535 men and women in Congress. Or, if they do, they sure as hell aren't applied the same way.

Take insider trading, for instance. There is no statute that makes trading on inside information illegal. Rather, when los federales charge someone with securities fraud, the allegation is generally either that the defendant breached a duty to the source of the information or to the person he traded with.

Of course congressmen have a duty, too. It's a fiduciary duty to act in the best interest of the United States of America - not in the best interests of the representative from some little town in Iowa. But when congressmen trade on the basis of information they've received solely because they're in Congress, they are violating that duty.



Now, thanks to a recent piece on 60 Minutes, the tide is turning. With congressional popularity at an all-time low, there really was no other choice. Now, for the first time since legislation was introduced in 2006, Congress looks to be on the verge of passing legislation that will ban members from trading on information obtained through their role as congressmen.

Harris County's runaway grand jury: a blawgosphere summary

On Monday morning, two high-level prosecutors in the Harris County District Attorney's Office will appear in the 185th Judicial District Court for a show cause hearing to determine whether they should be held in contempt of court for obtaining transcripts of grand jury testimony in the HPD Batmobile investigation.

Here are a few posts from around the blawgosphere regarding the collision between the runaway grand jury and the HCDAO so y'all can get a feel for what's been going down:

"My prediction for Monday: delay of game," Life at the Harris County Criminal Justice Center (Nov. 4, 2011)

"The BAT van show-cause order," Defending People (Nov. 2, 2011)

"It's the coverup that gets you: BAT van edition," Grits for Breakfast (Nov. 2, 2011)

"Judge calls top prosecutors on the carpet," The Defense Rests (Nov. 2, 2011)

"An interesting docket entry," Life at the Harris County Criminal Justice Center (Nov. 1, 2011)

"Live by the hatchet, die by the hatchet," Defending People (Nov. 1, 2011)

"The official investigation has begun," Life at the Harris County Criminal Justice Center (Oct. 27, 2011)

"Houston DWI 'BAT' vans - a timeline," Defending People (Oct. 27, 2011)

"What you say can be used..." Sustained (Oct. 27, 2011)

"The plot thickens," The Defense Rests (Oct. 26, 2011)

"A rat in a trap," The Defense Rests (Oct. 26, 2011)

"What's that: a "runaway" grand jury!," Criminal Jurisdiction (Oct. 25, 2011)

"Grand jury hysteria," Texas Criminal Defender (Oct. 24, 2011)

"Runaway jury," The Defense Rests (Oct. 24, 2011)

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

Judge calls top prosecutors on the carpet

Oh, what tangled webs we weave...

As you already may know (if you read Murray Newman's blog), two top-ranking prosecutors and two court reporters have been called on the carpet by State District Judge Susan Brown to explain why she shouldn't hold them in contempt of court.

It would appear that transcripts of secret grand jury testimony found there way into the hands of Carl Hobbs and Steve Morris. Mr. Morris is the head of the grand jury division and Mr. Hobbs is, ironically enough, head of the government integrity bureau.

Left unsaid, interestingly enough, is how Judge Brown found out that the Harris County District Attorney's Office had obtained transcripts of grand jury testimony regarding HPD's batmobile fiasco.

Would it surprise anyone if Mr. Hobbs and Mr. Morris are sacrificed by Pat Lykos to the gods of public opinion in an attempt to hold on to her rapidly sinking ship? This is some serious shit Mr. Lykos has stepped in and there doesn't appear to be a tidy way to dispose of it.

13 Undercover first exposed maintenance problems with the BAT vans that could have led to bad test results. The DA now says the breath tests are sound. The grand jury is trying to figure out when did the DA First hear about the problems and did they speak up about it as the law requires.

But then there's the curve ball. According to this story from KTRK-13, the breath tests in question are suddenly valid again. But wait, you ask, wasn't it just last week that Ms. Lykos said she couldn't trust HPD when it came to breath tests conducted in the batmobiles?

What changed? Are we suddenly going to pretend that Amanda Culbertson made it all up? Has Ms. Lykos forgotten the e-mails outlining the problems with the batmobile program? Or is it just a case of her realizing that she opened her mouth without thinking in a desperate attempt to deflect blame for the situation?

Why do I get the impression that what's going to happen on the 6th floor at 1201 Franklin is going to resemble the closing scenes in Casino in which the the crime lords decided that Joe Pesci's character is just a little bit too dangerous to leave alive? Or maybe the sequence in Goodfellas when Robert DeNiro kills off everyone who participated in the airline heist? Or maybe...

A rat in a trap

As my colleague Murray Newman reported earlier today, four prosecutors with the Harris County District Attorney's Office were subpoenaed to testify before a grand jury today. The grand jury is looking into HPD's Batmobile program.

Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.

The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable.  With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.

Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.

It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.

HAL ran a self-check and determined that he was functioning properly. We all know how well that went.

And then there's this gem...  

Lykos tells us she still doesn't know what went wrong inside that grand jury room last week that nearly led to the arrest of two of her top assistants, despite the fact one of them was in the room with us during the interview. What she does know is that she no longer wants HPD supervising its own DWI vans.

"That's what perturbs me," she said.

Lykos told us Monday she's done trusting HPD to tell her the truth about DWI testing.

"We were never informed there were questions about whether the tests were valid," Lykos said.

What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?

Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.



See also:

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

"The voice of the people," Gamso - For the Defense (Oct. 24, 2011)

Riding in style

This past Saturday night my wife ran off to the grocery store while I got the girls ready for bed. After the nighttime routine was over my wife told me she had rented a movie from one of the red boxes and she was hoping we hadn't watched it already.

She had come home with The Lincoln Lawyer.


I hadn't seen it and knew next to nothing about it. When I first heard the name of the movie I thought it was a movie about Abraham Lincoln. There were some e-mails on the listserv about it, but I never bothered reading any of them. I was quite surprised when I saw an ad on Facebook that mentioned Matthew McConaughey starred in it. That didn't seem like a movie about Lincoln.

As a rule I try to stay away from television shows and movies about lawyers and criminal law. It drives me crazy watching it. I will admit, though, that I do watch Law and Order: UK on occasion and I did like George Clooney's movie Michael Clayton.


My wife kept asking me during the movie if that's how things really are. I told her no. Well, that's not exactly true. Courthouses do have metal detectors.

The movie itself was fairly entertaining. The characters were interesting and it moved at a pretty good pace. But I was very troubled by the way in which Mr. McConaughey's character resolved his little moral and ethical dilemma.

We deal with some rather shady characters and some pretty bad circumstances at times. Let's face it, most of your neighbors probably aren't getting arrested and carted off to jail. But what would you do if you found out that your new client committed the murder for which you encouraged an old client to plea to? What if you found out that your old client really was innocent and was sitting in prison because of what your new client did?

The first thing the attorney should have done was withdraw from the case. There is obviously a conflict. I understand the reluctance to part ways with a six-figure fee, but you can't represent the new client if it puts you in a conflict with your old client.

Eliciting testimony that you know is perjured is also frowned upon - especially when the witness got the story from an agent of yours. It's all well and good that you manufactured a dismissal when you impeached the snitch - but still. Would you really want to go before the disciplinary committee and explain that away?

Finally, setting up your client to be arrested and then beaten down is generally frowned upon in the legal community.

Now I would agree that no one really wants to sit down and see what a day in our lives is really like. It'd probably be more palatable to watch sausage being made. I also understand that Hollywood's protagonist must be on the side of "justice" in order to sell a film in which the man seems so damn seedy. But what you're left with is a lawyer who sold his client down the river and violated every ethics rule in sight (not to mention a few provisions of the penal code).

County proposes plan to ration health care in case of emergency

If you're unhappy about the way your insurance company likes to question your doctor about the appropriate treatment for whatever ails you, you're going to love the new Harris County plan for dealing with a future flu pandemic.

After two years of drafting, the county is finalizing a plan on how to ration ventilators in the event of a flu outbreak the likes of which haven't been seen since the 1918 Spanish influenza epidemic that afflicted 500 million people and killed 50 million.

County officials have decided who will have access to a ventilator and who will be left to suffocate to death. Estimates are that a pandemic could cause over 10,000 residents to need a ventilator. Unfortunately, there are fewer than 400 unused ventilators in the county.

The Harris County plan notes that many patients with bird flu have required mechanical ventilation within 48 hours of hospitalization. In the event of a severe pandemic event, as many as 10,231 infected Harris County residents would need ventilators, the plan says, a number in addition to those already on ventilators for other conditions. Typically, there are less than 400 unused ventilators in Harris County at a given time.

Under the county's plan, folks needing the use of a ventilator would be placed into one of three categories: (1) patients who are healthy enough to recover without the use of a ventilator, (2) patients who are so sick that a ventilator won't matter and (3) patients who are sick but will recover with the use of a ventilator.

But it won't be the treating physician who will make that call. Nope. Say hello to the hospital review officer. That's right. A mid-level manager will be making those life and death decisions for you should you find yourself in need of a ventilator. After all, we can't possibly leave those kinds of decisions in the hands of medical professionals who have trained for years in the art of diagnosis and treatment - they'd just want everyone to have a ventilator. We need a bureaucrat with a pocket protector to work the calculus to determine who lives and who dies.

Lisa L. Dahm, an adjunct professor at South Texas College of Law, suggested that, in order to avoid lawsuits, county officials should push to suspend laws that require doctors to treat their patients with life-threatening conditions. Way to go, Ms. Dahm. Just brilliant how you took the focus off the ethics of a hospital administrator playing God to focus it on how to reduce the county's liability when someone's grandmother dies because the plan says she doesn't get a ventilator.

"These are difficult conversations none of us like to have. But the reality is, in a severe pandemic, there'll be serious shortages of medical resources and it behooves us to make the best possible ethical and clinical deliberations in advance about who should get them." -- Dr. Herminia Palacio, Director of the Harris County Health Department

In an ideal world we'll never know the public's reaction to the plan because the dreaded flu pandemic will never come. But, the increased use of flu shots will only serve to strengthen the resistance of the virus (much like gonorrhea has overpowered our arsenal of drugs). Oh, that damn law of unintended consequences can be such a bitch sometimes.

The public was invited to participate in the discussions and each participant received $75 per day. Would the fact that these meetings were held during a time when there was no fear of a pandemic affect the discussions? Would the fact that participants received a small stipend have an effect on the outcome of the meetings? William Winslade, an ethicist with the University of Texas Medical Branch thinks so. Hey, it's easy to toss around ideas like that when there's no pandemic in sight. And who would complain when they're getting paid much better than jurors to sit around a table and discuss the issue?

It's interesting that this plan is being drafted by unelected officials instead of the commissioners chosen by the people to govern the county. Is that because Ed Emmett and company don't want to take the heat from residents about rationing health care in case of an emergency? One would think that elected public officials who are paid by our tax dollars would have enough integrity to take a stand.

But, I've learned over the years never to start a sentence with the phrase one would think.

Police union targets city official who spoke out against police brutality

It would seem that Houston city councilwoman Jolanda Jones is paying the price for speaking out against the police. Ms. Jones has spoken out repeatedly about the problem of police brutality in Houston. She also raised concerns about the way the department operated its crime lab.

Now the Houston Police Officer's Union is striking back. Union vice president Ray Hunt has sent a letter to Harris County District Attorney Pat Lykos asking her office to look into whether or not Ms. Jones was practicing law without a licence last month.

This isn't the first time Mr. Hunt has been involved in lodging a complaint against Ms. Jones. He is the one who pointed out that Ms. Jones put her city office phone number on her business card. He alleged that she was using city resources to operate her private law firm. Ms. Jones was cleared of those charges when the DA's office announced there wasn't enough evidence to prove any wrongdoing.

The latest allegations stem from two legal documents signed by Ms. Jones after her license to practice law had been suspended for her failure to pay her bar dues and occupational taxes on time.

This fight isn't about Ms. Jones' ethics. This fight is about whether or not the city is going to turn a blind eye to police brutality. Earlier this year I sat with Ms. Jones at a forum on police brutality. She was the only elected city official to appear at the town hall meeting. Her willingness to speak out in such a forum spoke volumes.

Mr. Hunt and his group are involved in the classic misdirection play. Instead of focusing on the issue of police brutality, Mr. Hunt would rather throw mud at Ms. Jones in an attempt to discredit her. If you can't debate the issue on the merits, go for the dirt.

The problem with Mr. Hunt's tactics is that the cat is out of the bag now. We've seen the videos. We know that  the police beat suspects for no reason. They do it because they can and because they think they can get away with it. And for a long time they did. The city turned a blind eye to the problem - as long as it could be made to go away.

Mr. Hunt is playing the public like a little child. We all know the punishment for contempt of cop. I've had clients who have been punched, kicked or tased multiple times. If there was no video camera or eyewitness willing to testify, it was just a perp's word against a police officer. And guess who judges and juries believed.

Maybe Ms. Jones has skirted the rules. Maybe she hasn't acted ethically. Maybe she did practice law without a valid license. Those are issues with which Ms. Jones must deal. But none of that changes the fact that the police beat suspects and Ms. Jones called them out on it.

Don't fall for the misdirection play. Keep your eye on the ball.

Peeing in the pool

"Well I just can't believe you bunch of ignoramuses just voted to find that piece of shit defendant not guilty! Would y'all have voted the same way if I told you all the stuff the judge said I couldn't? Do y'all want to know just what this little SOB has done in the past?"

Okay, that's probably not how it goes down. It's more subtle than that. The prosecutor, still bothered that a jury acquitted a defendant, wants them to know what a bad decision they actually made. He wants them to know that there's a whole lot of stuff that mean ol' judge wouldn't let him talk about. So he lets loose with a tasty morsel of two.

Problem?

You bet.

Why would he do that?

Because he knows that the jurors have family, friends, neighbors and co-workers. He knows those jurors are going to talk about the case once it's over. He knows those jurors are going to tell everyone to be wary because they won't be getting the whole story. In short, he's doing his best to poison a little bitty piece of that jury pool.

In Wednesday's Houston Chronicle, Houston appellate attorney Brian Wice fired a shot across the bow of the Harris County District Attorney's Office when he publicly castigated the prosecutors who decided to pee in the pool after a famed Houston doctor, Michael Brown, was acquitted of assaulting his wife. 

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about "the real Michael Brown." In a matter of moments, and over DeGuerin's objection, the prosecutor tainted the jury with the details surrounding Brown's plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown's character and reputation - the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Simply put, in my opinion the prosecutor's comments crossed the line on both a personal and professional level. A former high-ranking member of the Committee for Lawyer Discipline said she thought these remarks violated State Bar Disciplinary Rule 3.06, which prohibits any lawyer from making any post-verdict comments to a juror "calculated merely to harass or embarrass the juror or to influence his actions in future jury service." By informing the jury about evidence that was clearly inadmissible in a thinly veiled attempt to make the jury feel badly about its verdict, the prosecutor's comments were calculated to influence not just the 12 folks who had acquitted Brown, but any of their friends with whom they might share the prosecutor's remarks, and who might find themselves on juries in the future.

There is little doubt what the prosecutor was attempting to do - and what he was attempting to do was unethical. He was caught red-handed standing in the yellow end of the pool.

Mr. Wice could have called out the prosecutor by name - but he chose not to. He was upset about what happened after the verdict was read and he voiced his displeasure in an op/ed piece. He was not interested in humiliating or embarrassing a prosecutor.

But it didn't take long for Nathan Hennigan, our antagonist, to make himself known.

I am the "out of line" prosecutor. My name is Nathan Hennigan. Wice didn't want to call me by name, but I feel a necessity to respond, as most don't know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn't a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from "Who Framed Roger Rabbit." Uncanny. What happened in the jury room is as follows...Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.

It's a shame that Mr. Hennigan couldn't have shown the same class that Mr. Wice did. Instead of a reasoned defense of his actions, Mr. Hennigan chose to resort to name-calling. He couldn't defend his actions so he attacked those who spoke against him. Mr. Hennigan is a true believer and he has gulped down the koolaid on the 6th floor of the Harris County Criminal (In)justice Center.

My colleague, Murray Newman, weighed in on Mr. Wice's op/ed piece yesterday. I like Murray. He's a good guy. I'd buy him a beer (or even give him one of my home-brewed brown or English ales). But Murray still has a place in his heart for the DA's office. I think there are times he loses a little bit of perspective -- and this one of them.

Mr. Wice pointed out a problem that we have been dealing with for years. It's a practice that's been allowed to continue because we haven't stood up and fought to change it. Jury members are exposed to the bias of the state from the minute they enter the Jury Assembly Room. Bailiffs make comments that cast aspersions on the defense. Judges conduct a voir dire that, in some cases, comes right out of the prosecutor's manual.  The citizen accused is not called by his name during the proceedings, he is labeled as "the defendant" in an attempt to dehumanize him. And then prosecutors do their bit after the verdict.

It all adds up to chipping away at the very presumption of innocence -- the only presumption you are allowed to make in a criminal courtroom. I don't know if Mr. Hennigan had "malice aforethought" before he spoke to the jurors. I don't know Mr. Hennigan. From what I've been told he's a nice guy. And I'm sure he is.

But just because he's a nice guy doesn't mean that he didn't do anything wrong.

We're at such a disadvantage from the beginning that the last thing we can afford to do is to allow the state to poison the jury pool any further. That's what Mr. Hennigan did. And that's what we've got to stop.

See also:

"A sore loser" Simple Justice (Sept. 29, 2011)

Taxpayers subsidizing Perry's White House bid

So Rick Perry is running for president.

How long had he been contemplating his navel running for the White House? How many of those out of state trips he's taken this year were to build up support for his campaign? How much money have we spent so that Gov. Goodhair can travel around the country looking for suckers voters who will support him? How many bodyguards are we paying for to accompany him? (And just keep in mind that they are from the same agency that couldn't even prevent the governor's mansion from getting torched.)

Rick Perry already has a job. He's the governor. He's paid by us to be the governor. He's not being paid to fly around the country pimping himself out for votes. With the number of teachers that Mr. Perry threw out of work this year by cutting the amount of money the state spends on education, the last thing we need is for our tax dollars to kickstart his presidential campaign.

Now that Mr. Perry has tossed his hat in the ring for the GOP nomination, it's time for him to do the honorable thing (there is, after all, a first time for everything). It's time for Perry to resign as governor and turn the keys over to someone who is going to look out for the best interests of Texas, not the best interests of a presidential candidate.

Of course, I'm not holding my breath on this. Despite his claim of supporting limited government, Mr. Perry doesn't seem to have any problem with the taxpayers of Texas subsidizing his flights of fancy. He'd much rather steal from the taxpayers and abdicate his responsibilities in this state so he can hoodwink try to convince voters across the country to support his campaign.

Peddling books

Over the past two weeks, John Nova Lomax at The Houston Press, has told us the incredibly bizarre tale of Denish Shah (also known as Dennis Shaw) who allegedly bilked folks out of their money by befriending them and shutting them off from everyone else. Mr. Shah currently is awaiting trial on a charge of two acts of assault of a family member.

But I'm not writing about Mr. Shah or his exploits. I was more interested in one of the sidebar stories that accompanied the article. It seems that Mr. Shah was sued by the family of a woman he once took a shining to. Mr. Shah allegedly beat the woman and abused and sexually assaulted her children.

Mr. Shah lost the civil case and a judgment of over $20 million was entered against him. No sooner was the ink on the judgment dry that Mr. Shah's attorney in the civil matter, Michael Phillips, announced that he was done with Mr. Shah and that he would be writing a book about his former client.

Mr. Phillips' book The Monster of River Oaks was published last summer.

Now even though Mr. Phillips claims not to have used any privileged information in writing his book, the entire affair seems more than a little dicey. The duty of an attorney is to represent his client and to act in his client's best interest. Abandoning a client after an adverse verdict and writing a book portraying your client as a monster hardly seems to fit the bill.  

"I can't tell you how many grandparents have come up to me emotional, thanking me for writing the book," he says. "They say that their daughters are going through relationships like this. One woman stopped me on the elevator and said she sent my book to Oprah."

Phillips claims the book is a warning to single mothers, whom he characterizes as being the most vulnerable members of our society outside of the extreme elderly. "They get run over. It's a free-fire zone on them," he says. "Extreme wealth, privilege and social standing may be no protection. Dinny was a hunter. Joan was the biggest game in town.

Phillips also claims to be the first person to have done something to stop Shah.

Our ethical duty to our clients extends beyond the actual representation. Our duty to hold their statements in confidence extends to death. Mr. Phillips duty wasn't to warn single mothers and grandmothers about his former client. His duty was to represent his client.

At what point did Mr. Phillips decide he wanted to write a book? At what point did he inform Mr. Shah of his intentions? Did his decision to dump his client and write a book affect his representation of Mr. Shah? And how in the world is calling your former client a monster acting in his best interest? 

"Unfortunately, there's always an appetite for what would purport to be the secrets of the rich and famous. Sadly, the lawyer who defended the guy, who stood in the middle of the courtroom and proclaimed that those children were lying, then tried to profit on essentially the salaciousness of selling the secrets of the rich and famous to the community.

"That is kind of insulting. It's not kind of insulting, it's damned insulting."  --  Jim Perdue, Jr.

Now I don't know Mr. Phillips. I know nothing about his representation of Mr. Shah. But I do have questions about the decisions he made after the jury came back.

As criminal defense attorneys we need to know unsavory details of our clients' lives. We need our clients to be upfront and honest with us when we discuss their case with them. That only happens when a client understands and believes that whatever he says in our office when the door is closed stays in that office for all eternity. Once our clients cease to believe that we will keep their secrets in confidence, our ability to represent them is compromised.

Mr. Phillips did none of us any favors. Of course he isn't the first attorney to write a book to capitalize on a representation - and he won't be the last. But every attorney who makes that decision brings into question whose interest he represents.

Doing as I say...

Prosecutors can be a sanctimonious bunch. Not all of them, keep in mind, but more than a few. You know the ones I'm talking about. The ones who feel the need to lecture your client before accepting a plea. The ones who tell you that your client needs to think about his priorities. The one who decides he's going to send a message to your client.

But then there are the prosecutors who will look you in the eye and tell you that your client needs to learn a lesson then go out and feel privileged to do as they wish regardless of the law.

That brings us to Bronx prosecutor Jennifer Troiano. Ms. Troiano has a problem. A severe problem. She's hasn't been forced to try to resolve it because there's always someone willing to cover for her. That is until August of last year when she was involved in a three-car accident in New York. That night Ms. Troiano was arrested and charged with DWI. You see, in the past, Ms. Troiano could always rely on a friendly police officer or fellow prosecutor to make it all go away.

Not that night, though. Officer Elliot Zinstein didn't cooperate. Ms. Troiano even suggested he contact Nestor Ferreiro in the DA's office. Officer Zinstein chose not to.

Officer Zinstein's reward for making the arrest was a transfer from the Bronx to Brooklyn.

Mr. Zinstein didn't take kindly to the transfer and let Internal Affairs investigators know about it. As a result, last week, Officer Zinstein is back patrolling in the Bronx.

Ms. Troiano, on the other hand, is still in need of help. Whether it's for alcoholism or arrogance remains to be seen.

Our clients come to us with their own demons. They find themselves in court because of a bad choice, an ill-informed decision or an addiction. We're not social workers - we can't rid our clients of their demons - but we can attempt to get them some help along the way. That path is often blocked by a prosecutor who lectures us about our client's attitude and actions. A prosecutor who has his or her own demons with which to deal.

Maybe Ms. Troiano will come away from this with a new perspective. Maybe she'll go about her business as if nothing ever happened. Maybe she'll even find herself on the other side of the aisle proclaiming that she always wanted to be a defense attorney.

People make bad choices now and again. Not all of those choices should lead to them being branded as a criminal for life.

To fight or plea

While I was at the Harris County Criminal (In)justice Center this morning I ran into a colleague who used to have an office in the same building I'm in. He asked me if it was considered malpractice to plead out a client on a DWI case.

I told him no, I didn't think so, because sometimes the circumstances surrounding a case require you to negotiate a plea. For instance, suppose you have a client who picks up a DWI - but no one realizes there was a prior DWI conviction because it couldn't be confirmed at the time of the arrest. Now let's suppose it's a defensible case (not necessarily a winner, but a case that is winnable). Now what happens when the prosecutor offers your client a deal that doesn't take the prior conviction into account. What do you do?

If you believe that every DWI case should be fought to the bitter end, you run the risk that the prosecutor will uncover the prior conviction and muster his evidence to prove up the conviction at trial. Now, instead of time served and a fine, your client is looking at jail time or a long stretch on probation.

Were your client's interests served by refusing to entertain a plea offer? If you've increased your client's exposure without discussing the consequences with him - the answer is no. Entering into a plea might have been the best way to dispose of the case - but you refused even to consider it.

Throw in the DIVERT program (no matter how flawed) and there may be additional reasons to plead out that case rather than go to trial. If keeping that record clean is your client's most important concern then there are reasons to consider the program (just make sure your client is fully informed of both the benefits and risks of the program). Not allowing your client to make the decision whether to plead or go to trial is the worst mistake you can make.

Now, pleading out a DWI case on the first setting or before you've conducted any discovery is committing malpractice. The collateral consequences of a DWI conviction are too vast to plead out a client without investigating the case.

In our world, very little is black and white. We live in a world of grey. Always doing something or never doing something are equally harmful to our clients.

Protecting their own

As I was looking through my Google Reader on Wednesday, I happened upon a post on Grits for Breakfast in which Scott Henson questioned why prosecutors enjoy absolute immunity for their misdeeds while peace officers  are only granted "qualified" immunity.

Mr. Henson linked to an article by Erwin Chemerinsky, the dean of the UC-Irvine Law School and a constitutional law scholar, in which Mr. Chemerinsky looked at two recent US Supreme Court cases in which the high court ruled against exonerated citizens seeking recompense for the time they spent locked up on wrongful convictions.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct. 

There is a serious problem in this country. Our criminal (in)justice system, through the erosion of defendant's constitutional rights and admission of junk science, has locked away hundreds of people whose convictions were later overturned -- not through the appeals process but through the filing of writs. The vast majority of these convictions were overturned when DNA tests (not available, or performed, at the time of trial) revealed that the person convicted for the crime was not the person who committed the crime.

In many of these cases prosecutors withheld evidence that may have led to a different result. In many cases these constitutional violations were intentional. And, in most of those cases, the prosecution had multiple opportunities to correct the error but chose not to.

To answer Mr. Henson's question "why" prosecutors enjoy absolute immunity from lawsuits alleging misconduct, we have to look at who's making the rules. Now I can only speak about Harris County but the vast majority of criminal judges at 1201 Franklin came from the Harris County District Attorney's Office. I am quite certain this is not a phenomenon unique to southeast Texas.

Judges already have a hard enough time believing that police officers beat suspects without reason and lie in their reports and on the stand. These judges have a hard enough time believing that eyewitness testimony is inherently unreliable and that forensic evidence is often of dubious provenance. Many of these judges have a hard time believing that a defendant is innocent unless proven guilty beyond all reasonable doubt (if you have any questions, just look at the bond conditions imposed on some defendants). Why on earth would one of these judges believe that prosecutors behave badly?

Why would a judge believe that the prosecutor who walks into her courtroom everyday was capable of withholding exculpatory evidence? Why would a judge believe that her former colleagues intentionally violated the constitutional rights of criminal defendants? Why would a judge who campaigned as being "tough on crime" believe that "her" prosecutors breached their ethical duty to see that justice was done?

And why would anyone on the bench care about the person freed from prison years later for a crime he didn't commit? Why would they care about the years he lost? Who cares whether he can pick up the pieces of his shattered life and start over again? That's not the judge's problem. He had a trial. So what if the jury got it wrong due to prosecutorial misconduct? So what if the jury got it wrong because of junk science?

If he wasn't guilty of that one, he was probably guilty of something else, right?

Let's make a deal

I ran across this tasty morsel on a listserv to which I subscribe...

A fellow lawyer advised me today a district attorney offered to dismiss his client's case if the lawyer would waive his court appointed attorney fees. Lawyer has put in a lot of time and energy on the case. Lawyer feels like he has been put in a bad spot by the district attorney and doesn't know what to handle this. 

Any suggestions?

Here's a suggestion. File an ethics complaint against both the prosecutor who made the "offer" and the district attorney. By making such an "offer," the prosecutor is violating his ethical duty to see that justice is done. If the case deserves to be dismissed, the case should be dismissed. End of story.

Would this prosecutor have made the same "offer" to the attorney if it were a retained case? If, as I suppose, the answer would be no, then you have an argument that the prosecutor and, by extension, the district attorney are violating the Equal Protection clause of the 14th Amendment as the indigent client is being discriminated against because of his economic status.

Such actions also violate a persons's 5th and 6th Amendment right to counsel. By placing such an "offer" on the table, the prosecutor is creating a disincentive for attorneys to accept appointed cases in that county. If the competent and experienced attorneys refuse to accept court appointments, the right to counsel becomes a hollow promise.

Maybe the district attorney should take a closer look at the cases the office chooses to prosecute. Maybe the weak cases need to be cast aside. Trying to balance the county's budget on the backs of indigent defendants is just plain wrong.

Keeping the prosecutor who made the offer on the county payroll is just as wrong. Hell, allowing him to continue practicing law is wrong.

Office policy

Last week, my colleague Mark Bennett wrote about his experience with a "total refusal" case. His client declined to perform the officer's agility tests at the scene or at the station and declined his request to blow in the state's breath test machine.

Her reward, of course, was being arrested for driving while intoxicated. In the courtroom, Mark told one of the prosecutors that the case was a "try it or dismiss it" case and that he thought it should be dismissed. The prosecutor then informed him that it was "office policy" to try all total refusal cases.

My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime. 

But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant's time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA's Office tries, it has to lower its plea offers on a host of other cases. 

Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.

I don't know how to break it to Ms. Lykos' minions -- "office policy" doesn't trump a prosecutor's ethical duty to see that justice is done. If you have no evidence other than an admission of drinking and an alleged traffic violation - you don't have sufficient evidence to force a citizen to defend themselves in front of a jury.

That's not enough to expose a motorist to a $3,000 surcharge as well as probation fees and community service - not to mention the stigma of being a convicted criminal. Law clerks follow "office policy." Attorneys are professionals who are trained to think for themselves. Presumably a prosecutor in the courtroom is competent enough to evaluate a case to determine whether or not it should be dismissed or prosecuted. A prosecutor who decides to dismiss a dog shouldn't have to justify that decision to his boss. Such a policy only discourages prosecutors from acting like attorneys.

Of course prosecutors aren't the only folks over at the Criminal (In)justice Center who blindly apply "office policy" to cases.

Recently I was retained on a DWI case in which my client declined to blow in the state's breath test machine. At his arraignment setting the judge ordered him to install an ignition interlock device in his car. I asked the judge why he would require an interlock in a case in which there was no accident and no breath test.

The judge responded that he always requires an interlock if there was an accident, a breath test over .15 or a breath test refusal. He doesn't, however, require an interlock if the breath test is under .15. It's a policy that makes no sense.

The judge hasn't read the offense report. The judge hasn't seen the video. All the judge knows is whether there was an accident or a breath test. Might my client have had an alcohol concentration of .15 or higher? Sure. Might he had had an alcohol concentration of more than .08 but less than .15? Yes. Might it have been less than .08? Certainly.

Regardless of what his alcohol concentration may or may not have been, my client is innocent unless the state can prove each and every element of its case beyond all reasonable doubt. By ordering an interlock device as a condition of bond for a motorist who declined to blow, the judge is casting the presumption of innocence aside.

All in the name of "office policy."

Waving your rights goodbye

The other day I found myself in the discovery room at the Galveston County District Attorney's Office reviewing a file in a new case. Another attorney was in the room with her client. They were watching an in-car video on a computer monitor. The attorney's client was wearing an orange county jail-issue jumpsuit. Standing right behind him were two deputies from the Galveston County Sheriff's Office.

While watching the video, the defendant made comments about police brutality and other alleged sins on the video. All while two officers stood behind him, watching and listening.

His attorney talked to him about what they were viewing, answered his questions and told him what the law was. All while two officers stood behind him, watching and listening.

There needs to be some mechanism by which defendants who are held in jail awaiting trial can view videos pertinent to their case. I understand that an inmate can't just be left alone with his attorney in the discovery room. But reviewing evidence and discussing the law and trial strategy in front of two sheriff's deputies isn't a very good game plan.

The conversation between attorney and client is no longer privileged because neither the attorney nor the client had any reasonable expectation of privacy talking in front of two law enforcement officers. Everything that defendant said can now be considered an admission.

Just what was his attorney thinking? How can you have a meaningful discussion with a client when there are two officers standing right behind him? How can you even allow your client to open his mouth in the presence of the officers? Why not ask that other arrangements be made that would allow you and your client to converse in private?

Of course if the entire purpose of the gathering was to convince your client to plead out his case, instead of fighting it, I suppose it doesn't really matter that you violated your ethical duties.

Out of the mouths of unethical prosecutors?

Rule 3.07 Trial Publicity

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

The Texas Disciplinary Rules of Professional Conduct refer to conduct engaged in by attorneys during the course of representing a client (whether that client be a criminal defendant or the State of Texas). We are forbidden from making statements that we know, or should know, may prejudice one of the parties in a lawsuit.

"The DEA conducted a brilliant investigation and has stopped a dirty doctor and his cohorts from continuing to profit from the wretchedness of addiction." -- Harris County District Attorney Pat Lykos

Ms. Lykos was referring to Dr. Gerald Ratinov who was charged with running an illegal "pill mill" that dispensed pain killers.

Ms. Lykos represents the State of Texas, the party who is prosecuting Dr. Ratinov. Ms. Lykos made an extrajudicial (outside the courtroom) statement that brought Dr. Ratinov's character and reputation into question. That would appear to be a violation of Rule 3.07(b)(1).

Ms. Lykos' statement implied that Dr. Ratinov was guilty. Considering that Dr. Ratinov is charged with a felony that could result in his incarceration, that would appear to be a violation of Rule 3.07(b)(4).

Ms. Lykos has been in office for over two years now, she should be aware of the ethics rules governing what she can and cannot say about a pending criminal case. Ms. Lykos should be held accountable for violating those rules. Someone should file an ethics complaint. But, will anyone step up to the plate?

Maybe someone could schedule a meeting with Ms. Lykos. They could sit down and discuss the matter - and maybe become best friends by the end of the day. Maybe she'd even say she was wrong and that she wouldn't do it again. A group of defense attorneys could argue about whether filing an ethics complaint would be piling on poor Ms. Lykos. Maybe her new best friend could bring her to a meeting while the group is deciding what to do. Maybe that group might decide to do nothing because they don't want to piss off Ms. Lykos or her supporters.

On second thought, there's no way anything like that could happen. Is there?