Happy New Year?

happy-new-year-clock-1450033854gbk2016 certainly left a bitter taste in many people’s mouths. Of course, many people remain upset about the presidential election. Locally, the District Attorney lost her bid for re-election as did many judges. In the aftermath of the election, nearly 40 high level prosecutors were told their services would no longer be required under incoming District Attorney Kim Ogg. Some of our comrades have gotten sick, passed away and divorced. We also lost courthouse fixture Rick Johnson. Even this week between Christmas and New Year’s Day, celebrities Carrie Fisher and George Michael died, adding to a list that has already gotten too long.

The look of the Criminal Justice Center is unquestionably going to be very different on January 2, 2017. Some of the changes, I hope, will be for the better. Others are not as optimistic. Don’t worry, I won’t name names, pessimists. But what are the changes we are hoping to see? What attributes are we looking for in our new prosecutors and judges?

Assuredly, there are certain characteristics and traits we hope to see. First, prosecutors must seek justice not only convictions. All too many times, under prior regimes in Harris County, has there been a win-at-all-costs mentality, or at least perception. Making secret deals with witnesses, sponsoring dubious or worse testimony, protecting bad acting police officers, hiding evidence, and seeking convictions without evidence are not the hallmarks of an honorable prosecutor, or office.

Quite the opposite, in fact, should be true. I was recently appointed to represent a young man charged with theft. Due to his numerous prior theft convictions, he was facing a felony, and because of other convictions, he was looking at an enhanced penalty range of two to twenty years in prison. I spoke with the chief prosecutor on the case after reviewing the police report and watching the surveillance video. The evidence was quite clear; my homeless client had stolen a premade sandwich, yogurt and juice from a convenience store.

I prepared to argue about my client only stealing bread and the desperation many homeless people feel but before I could open my mouth the prosecutor said he would offer time served to my client. No argument, no back and forth, but time served. Justice in this case was time served. My client knew he had broken the law ad was prepared to face the consequences. He was so surprised he was getting out that day that he began to tear up. I told him the prosecutor on his case was seeking justice and not merely seeking convictions and was one of the good ones in the courthouse.

This is the model that should be strived towards. Justice, not hammering a desperate homeless man for stealing food by sending him to prison for years. I am hopeful that the new prosecutors or those taking new positions in the administration and office follow this model and avoid becoming a Javert, only seeking punishment and prison.

In regards to the judges, both new and old, we hope for three characteristics primarily. First, neutrality. A judge should be like an umpire in baseball. Call the balls and the strikes; don’t play shortstop. In my practice, I travel to four counties in the Houston area and have been in front of numerous judges. Some are incredibly fair to both sides, allowing both sides to put on a case. Some are tough on both sides. Some clearly have their favorite side, or lawyer, and make things difficult for all others involved. Having to combat the prosecutor during the trial is often cumbersome on its own accord, adding a judge to the mix is fundamentally contradictory to justice.

The second is fairness, which I admit is closely related to the first topic. Being “tough on crime” is both a topic previously discussed on this blog and exactly not what judges are supposed to do. Call the balls and strikes, but, if you want to play, pick a side: open a law office or apply for a job with the District Attorney’s Office of your choosing. In some courts, electing the judge for punishment can be considered malpractice because some judges want to be “tough on crime.” Sometimes, people deserve to be punished and punished severely for their crimes and there is a time and a place for that. But that is not the case in every trial.

Third, and also related to the first two topics, is consistency. I recall being a young prosecutor practicing in front of a judge who had a pet peeve for burglary cases. This judge wanted people to take classes as part of any probation for burglary, but was consistent in this regard. I recall another judge who simply would not allow the District Attorney to ask potential jurors about the One Witness Rule, whether it was germane or not. Other judges, depending on the day, can swing wildly from side to side in punishment, or what areas could be discussed in front of the jury. This makes practicing in front of those judges akin to walking through a minefield. If you know where not to step, you’ll be ok but if you don’t know which step could be your last, it’s nearly impossible.

I am hopeful that the new judges will be neutral, and fair and consistent.

Happy New Year.

On Character and Suspicion (Harris County ADAs Under Suspicion)

In 63 BCE, during his rise to power, Julius Caesar was appointed to the powerful and sacred office of “Pontifex Maximus,” the chief priest of the Roman state religion. As part of his new role, according to custom, his wife, Pompeia, was required to hostess a religious festival of the “Good Goddess.” The Good Goddess festival was pretty unique, even by strange pagan standards. It was only for women, and was one of the few times women were allowed to drink strong wine, perform animal sacrifices, and stay out late at night. All in all, it was a great, albeit a bit bloody, time.

Problematically if not predictably, a cocky young man named Publius allegedly disguised himself as a woman and snuck into the festivities in order to seduce Pompeia. Rumor spread that Pompeia was having an affair with Publius, and the city was abuzz with the worst kind of gossip. Publius was charged with Sacrilege, a criminal offense back in those pre-separation-of-church-and-state days, and to the credit of the ancient Roman legal system, was entirely acquitted- probably rightfully.

It became apparent that Publius probably didn’t sneak into the festivities at all, and it was certain that he had never had any kind of contact with Pompeia, let alone any conduct that might…besmirch her virtue, so to speak.

Still, Caesar divorced Pompeia immediately, in spite of knowing that she was innocent. When asked why he would divorce his wife for doing nothing wrong, Caesar said, “Caesar’s wife must be beyond suspicion.” (We forgive darling Julius for referring to himself in the third person. Sometimes even your dearest Allison is guilty of such.)

At first, it seems pretty wildly unfair for ol’ Julius to divorce the luckless Pompeia, who was summarily kicked into the ash-heap (or perhaps ash-hole?) of history with this one disappointing little story. But if you think about it, really, shouldn’t she have been beyond suspicion? Don’t we all want to be the kind of people who, when someone whispers a filthy little rumor about us, the listener says, “Wait, actually I know her, and there’s no way she would do that. Don’t come around here spreading lies about the most honest person I know. Good day, sir.”

I think that as attorneys, and especially as attorneys who practice criminal law, we have to be the kind of people who are beyond suspicion. We are ethically bound to be honest to the tribunals before which we appear, and to other officers of the court, including opposing counsel. While we are not obligated to tip our hands to the adversary, we should endeavor to play fair.

While an accused enjoys “innocence until proven guilty beyond a reasonable doubt,” we, as attorneys, from an ethical and moral standpoint at least, do not.

The recent shake-up at the Harris County District Attorney’s Office is an example of the failure of attorneys to be beyond suspicion. The allegations that at least three prosecutors who were recently “asked not to return” to the office under the incoming Ogg administration have contacted crime victims and their families and spread false information and panic are truly horrifying. I hope, for the sake of the victims, for the honor of this profession, and for the future careers of those attorneys, that those allegations are not true. I will not speculate on the professionalism of the three ADA’s named, other than to say that one of them, Nick Socias, was the ADA who recently made news for jailing a rape victim to ensure she testified against an attacker, and was defended by Devon Anderson in an odd and ill-advised YouTube video.

I hope (though I’m afraid that this is hope trumping experience in this case) that these prosecutors have worked hard throughout their careers to develop a shining and honorable reputation. That they will be beyond suspicion, that the allegations are not only false, but that the people who know these individual prosecutors will refuse to believe it anyway.

Unfortunately, the solitary fact that these prosecutors worked under outgoing DA Devon Anderson may make any protestations harder to believe. Anderson has proved herself, time and again, to be untrustworthy and deceptive. Even now, at the twilight of her tenure, rumors are swirling about the odd circumstances of her recent, personally-signed dismissal of a misdemeanor DWI for a prominent Houston attorney who also happens to be a former campaign donor to Anderson. Maybe Anderson’s dismissal was reasoned and just. I hope that it was. But whatever the facts of the situation may be, it’s fair to say that the public doesn’t think her character is above the suspicion that she would engage in such blatant cronyism and a trade-off of favors. Attorneys who worked under Anderson and had her favor, especially those who were promoted by her and were protected by her, have a bit of a fetid tang that is going to be hard to wash off.

Kim Ogg’s recently publicized decision to refuse to renew the contracts of 37 prosecutors, many of them in senior and supervisory roles, has come under a considerable amount of fire in the past days. The continued circus of the Anderson administration and the constant, dripping faucet of indications of a culture of unethical (at best) behavior by attorneys who not only should know better but are obligated to do better shows that Ogg’s massive layoff was not only acceptable but necessary. I have great hope that Ogg will find people to fill the empty positions who have earned reputations that are not only above suspicion but also beyond reproach.

As for Devon Anderson, kick her in the ash-hole.