A Little Respect . . .

All five candidates for Harris County District Attorney were invited to speak today with the board of directors of HCCLA, the Harris County Criminal Lawyers’ Association, after a board meeting.

Only one of them bothered to show up: Kelly Siegler. (C.O. Bradford had spoken to the board before Chuck Rosenthal’s meltdown.)

[Edit: Jim Leitner and Pat Lykos say that they were not aware of the invitation. It appears that Kelly and Pat both sought to speak to the HCCLA Board and were both emailed invitations, but Pat’s did not reach her. My initial statement that all five were invited was based on a miscommunication. Pat had also wanted to speak to the HCCLA Board, and Jim is an HCCLA member.]

Kelly knew darn well that nobody in that room was likely to vote for her in the Republican primary — we’re all either Democrats or Jim Leitner supporters or both. Even if we voted for her, she knows that we don’t have enough political stick to make a difference in the Republican primary. [Edit: She also knew that HCCLA is not endorsing any candidate in this race.] But she came to talk to us anyway, because she wants to do a good job as DA and she recognizes that HCCLA represents an important group of stakeholders in the criminal justice system.

Kelly fielded some tough questions about her conduct in the Temple case, in which she applied for a bench warrant in one case to bring an imprisoned witness to Harris County so that she could interview him about another case in a different court. Kelly saw nothing wrong with this conduct, and seemed not to have considered the possible application of Texas Penal Code Section 37.10 to her behavior. “That’s the way we always do it.”

Aside from the interesting little question of whether “the way we always do it” is a crime under the Texas Penal Code, Kelly had some things to say that reduced my concerns that a Siegler administration would be four more years of the same.

“We might,” Kelly conceded, “not be complying with Brady as well as we should.” This was one of her reasons for promising to allow defense lawyers to copy offense reports.

Regarding pretrial diversion, Kelly said that she would work with the defense bar to agree on a general set of guidelines for people who might be eligible for pretrial diversion. These guidelines would be disseminated to the defense bar so that defense counsel would have a general idea of when their clients might successfully seek pretrial diversion. Then instead of having one person (currently the misdemeanor division chief [edit: for misdemeanor pretrial diversions, and the felony division chief for felony pretrial diversions]) decide who gets pretrial diversion, Kelly suggested that there should be 5-10 people on a committee making the decision. This would create consistency in the decision-making process [edit: over time].

When asked about unprofessional conduct among assistant DAs, Kelly seemed somewhat surprised to learn that such conduct was commonplace. She had no specific solutions, but promised an open door for defense lawyers to air their complaints.

Kelly also agreed to improve communication between the prosecutorial and defense bars by attending, with her upper management, regular meetings with the defense bar’s leadership.

“We need to do a better job of explaining to new prosecutors that Brady includes inconsistent witness statements,” she said, and offered to send prosecutors to Brady training sessions conducted by the defense bar, even though “we might not agree with you.”

Kelly described the current Office policy of not agreeing to less than 10 days on first-time prostitution cases as “outdated and stupid.” (I assume that she didn’t think that the minimum should be more than 10 days, but we didn’t discuss that.)

When discussing 12.44(a) time (the section of the Penal Code that allows the State to agree to county jail time for some felonies), Kelly said, “It’s not our job to worry if the jail is overcrowded. If we want to 12.44(a) someone that’s our business.”

Kelly was able to give the first coherent explanation I’ve heard of the Harris County DA’s refusal of summonses for class B marijuana cases: “It’d screw up the whole intake system.”

Kelly promised a larger major fraud division, which would be better at investigating and working up the white-collar crime cases. This brought a smattering of applause from the defense lawyers.

One of her first priorities if elected would be to “take care of the groups that got their feelings hurt” by Chuck Rosenthal.

Kelly came out strongly against DAs lobbying against life without parole. That lobbying was because LWOP would result in juries assessing death less often; Kelly called it “wrong.” (I’d’ve called it “heinous”, but “wrong” will do in a pinch.)

Speaking of the death penalty, Kelly proposes changing the way the DA’s Office decides whether to seek death. Instead of depending on a memo written by the chief prosecutor in whatever court the case happens to land in (a prosecutor who may not have tried a death penalty case), Kelly suggested that she would require the division chief to be familiar with the entire file, including mitigation evidence.

As I understood it, Kelly favored letting outsiders clean up the HPD crime lab mess.

Finally, Kelly said that Dallas DA Craig Watkins “has got some good ideas.”

We didn’t talk about racism in the DA’s Office. Or about Mensa. This is by no means an endorsement. I still doubt that Kelly will bring as much needed change to the Harris County DA’s Office as Jim Leitner. But I’m convinced that she’d be a good start.

If I had to choose today between Kelly Siegler and Pat Lykos, or Kelly and whatsisname Perry, I would choose Kelly. Today she showed the defense bar some respect, and a little respect, when you’re a criminal-defense lawyer, goes a long way.

0 responses to “A Little Respect . . .”

  1. Mark, thank you. For giving her a hearing. And telling everyone what you thought – after giving her a chance to persuade you – that’s more than ‘legitimate’ media outlets have done. No one expects the DA and the Defense Bar to be on the same page – but there are some fundamental ideals we should be able to agree on. If your comfort level has increased after you were able to test Kelly, that’s a good thing.

    Incidentally, are you going to attend the debate at South Texas?

  2. The 10:19 post should be a lesson to you all.

    Don’t let drunk women approach your blog profile. Dam*it.

    See you at the debate, Mark.

  3. I agree that she has some good ideas on improving the office. Sometimes our leadership has resisted change because “that’s the way it’s always been done”. That’s simply not good enough. This is not the 1980’s. Glad to hear that Kelly’s taken the first step toward having an open dialogue with the defense bar. I can tell you that work is much more enjoyable when DA’s and defense lawyers at least get along even if they disagree.

    By the way, Mark, what did you mean by unprofessional conduct of some ADA’s?

  4. Pro.V — Let me get this straight: It’s 10:26 on Valentine’s Day night, you have a drunk woman in your home, and you’re commenting on my blog? What on Earth is wrong with you, lad?

    J, — we were talking at first about young DAs not treating our senior members with professional courtesy. Then the discussion broadened to DAs not treating any of us with professional courtesy — for example, not giving consideration to our accounts of our clients’ cases.

    Kelly, of course, thinks that prosecutors should listen politely and attentively to whatever defense lawyers have to say about their cases and give it careful consideration, just as I think that defense lawyers should generally keep their traps shut about their cases until it’s too late for prosecutors to tweak their cases to account for whatever we have to say.

  5. You know Mark, it might be interesting to do a quasi Stanford Prison Experiment where we get “normal” people put in roles of prosecutor and defense attorney.

    My few and far between experiences defending people in criminal cases is that by and large prosecutors get this mind set. It’s like they think all clients are lying sacks of shit, and their lawyers are just mouthpieces for their excrement.

    I have to believe there is some serious situational psychology going on there.

  6. Mark – I have to ask, because the number of responsible parties is dwindling. Based on what you wrote, I understand that Siegler maintains it is not the DA’s lot to be concerned about how crowded the jail may be. I’ve already heard the judiciary’s self-serving version of that statement, given while busily setting high bonds and denying personal bonds. And clearly, the Sheriff alone cannot greatly affect the number of people in jail. Mindful of the lessons found in “The Little Red Hen,” and the recurrent fuss about overcrowding in the Harris County Jail(s), to whom does that concern fall? Is there anyone left? Does the HCCLA have any interest in the topic?

  7. Mark, the unprofessional conduct of which you speak characterizes segments of both sides of the bar. Most DA’s grow out of this as they mature. BTW, who trains young defense attorneys? I can tell you there is nothing more irritating than the young buck defense lawyer who fancies him/herself as the next F. Lee Bailey (I’m dating myself here) or rather Mark Geragos, who comes in with way too much bravado and trash-talk, trying to intimidate the
    DA. Answering the question I posed above, to an extent, DA’s train young defense lawyers through the crucible of trial and sometimes with friendly advice.

  8. Ron, you may be right.

    Leviathan, HCCLA is very interested in the topic. We can’t do much about it alone, but after the November general election I hope to have a sitdown with the new DA and representatives of the other stakeholders to talk about this and other issues of mutual interest (*** MENTAL HEALTH ***).

    J, most grow out of it, but not all (I know at least one felony chief who still behaves this way), and it shouldn’t happen in the first place.

    One big difference between DAs being rude and defense lawyers being rude is that a defense lawyer is going to irritate one, or maybe two or three DAs in a day; a prosecutor doing the same is going to irritate tens of defense lawyers. Another big difference, to quote Kelly Siegler, is that you “have all the power.”

    Further, there are fewer young solo defense lawyers and more new prosecutors every year.

    Who’s Mark Geragos?

  9. j

    I don’t know if you insulted Mark or complemented him by comparing him to Geragos.

    Calling Geragos a “Mark Bennett-wannabee” was a very witty comment.

  10. Just wondering if you intended to post more on the Temple trial issue you mentioned – ? Also, since you mentioned mental health issues in the criminal justice system, I’m interested in hearing your thoughts on the relatively new Mental Health Public Defenders Office created in Travis County. I must admit that I’ve read little about its progress since it was established, but thought you or other defender colleagues might have some opinions about how the approach is working – ?

    Been enjoying the blog. Thanks.

  11. Observer,

    Thanks for goading me to respond. I had moved on down the road like Rick Perry.

    I’d like to post more on the Temple trial issue; I’ve been bugging another lawyer for the original documents so that I can walk the non-lawyers through it. In essence Kelly sought a bench warrant in a case (and court) in which an imprisoned witness was not a witness (in other words, the person was a witness, but not in the court or case in which Kelly sought the bench warrant) to bring the witness to Harris County to interview him. That the witness was potentially exculpatory and that she seemingly did this to prevent Temple’s lawyer from finding out about the witness make it a Brady issue; that the documents filed with the court at Kelly’s request stated falsely that the witness was a fact witness in the case in which the bench warrant was issued, in my opinion, makes it a criminal issue.

    But as Pat Lykos might say (if she spoke Latin), quis custodiet ipsos custodes? Limitations has expired on the possible misdemeanor tampering charge, and I don’t see that Kelly even arguably committed a felony.

    pro.v, refresh my recollection: did I see you at the debate last night?

  12. Thanks for the response. I was starting to think you were sore that I mistakenly assumed you were AHCL awhile back and called you schizophrenic. (You, of course, were correct in advising me that the proper diagnosis would have been multiple personality disorder).

    I was curious because I knew someone assigned to the court involved around the time of the bench warrant issue who said that Kelly and Dick practically came to blows at the bench over the whole thing, but I never knew the full story of what happened.

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