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.

About Vik Vij

Vik Vij is a criminal defense attorney in Houston practicing in Harris, Galveston, Brazoria and Fort Bend Counties. He's the father of two amazing girls and is a fan of all things Houston. Connect with Vik on Twitter at @Vikvijlaw