HCDA Whale Fail!


Early this morning, my telephone rang. I answered it.

Psst. Mark.

Through my REM haze: Mr. X, is that you?

Shhh. Yeah, it’s me. Listen, Mark, I’ve got something for you.

I was immediately awake — X has always provided interesting stuff in the past; some of it pure gold.

I’m listening.

Okay, Mark, here it is. Jim Leitner went around to the misdemeanor courts. Told them to pick a whale. He’d write on it “trial”.

And?

The State could not offer anything or let defendant plead. No waiving jury. Said it would be good training.

Click. X had hung up, leaving me to ponder his words. This couldn’t, I thought, possibly be true.

Whales are cases that the State thinks it couldn’t possibly lose — like shooting whales in a barrel. True whales are recognized by both sides, and in misdemeanor court are usually resolved with plea bargains. Jim Leitner is the First Assistant District Attorney, DA Pat Lykos’s right-hand man.

My mind was buzzing with ideas. There’s so much wrong with choosing a whale to force to trial . . . where do I start?

Ethics? A defendant doesn’t have any right to plead guilty, but a prosecutor has a duty to seek justice, and very rarely does that mean “no deals, nohow.” Forcing an accused who is willing to plead to reasonable punishment to instead try his case isn’t justice; it’s bullying. And prosecutors maintain that they are motivated by their dislike of bullies.

Could this be a clever move by Jim to show the troops that they are working for the biggest bully in town: the government?

Judicial efficiency? Not that I care, but do the County Criminal Courts at Law have nothing better to do than try 15 cases that should work out? If so, then it’s definitely time to cut down the number of misdemeanor courts (and misdemeanor prosecutors) in the county. By making work for misdemeanor prosecutors, is Jim trying to demonstrate to Commissioners’ Court that the District Attorney’s Office has too many lawyers without enough legitimate work to do?

Is the DA looking for a budget cut?

Fiduciary duty to the voters? How much does it cost to try 15 misdemeanor cases? $54,000 worth of taxpayers’ and businesses’ time (24 jurors per jury panel times 15 jury panels times an average of six hours off work for each times Harris County’s average $25 per hour), plus all of those county employees — judge, prosecutor (or two), clerk (or two), coordinator, bailiff, process server, court reporter — who sit through every trial. Plus the light bill, lunch for the jurors, jurors’ pay . . . and, I’m sure, a hundred other things that I haven’t thought of.

Is Jim prepared to explain this new policy to the 360 voters who waste their time in trial of cases that would have pled but for it?

Campaign promises? Trying whales seems like a way to increase the scalp count, and “counting scalps” was definitely not one of the planks in Pat Lykos’s campaign platform. If you aren’t concerned with your scalp count, you encourage the troops to try the dogs, not the whales.

Morale? I gather from Mr. X’s call that the line prosecutors might not be particularly happy about this new policy. And why should they be? Who wants to try cases that they can’t lose? It’s like using a cheat code; no fun. Besides, if you try 15 misdemeanor whales, the over-under for how many the State is going to lose outright (“not guilty” verdicts) is 2; that’s just the unpredictable nature of jury trials. If trying a whale is no fun, losing a whale will be a downer.

Maybe Jim is counting on this exercise to teach some humility to the two or three prosecutors who lose their whale trials?

If you count as a State loss any case in which the punishment at trial is lighter than the punishment the accused would have accepted before trial, the State (through no fault of its line prosecutors) is going to “lose” most of these whales.

Training? Shooting whales in barrels is good training for . . . what, shooting whales in barrels? So that prosecutors can . . . what, shoot more whales in barrels? Trying whales ranks right down there with law school mock trial as preparation for trying actual cases in the arena of the criminal courthouse.

Then I thought: Jim Leitner will be Todd Dupont’s and Neal Davis’s guest this evening on Reasonable Doubt. Maybe they’ll give him a chance to explain this policy then.

Twitter's Fail Whale

Twitter’s Fail Whale


0 responses to “HCDA Whale Fail!”

  1. An accused can always plead guilty at trial, then go forward just on punishment. He can make the state look petty and foolish for insisting on taking the case to trial when he was willing to plead guilty all along.

    The State can never prevent someone from pleading guilty. They can just make him do it before a jury.

  2. I find it ironic that this is the policy of Lykos who campaigned on the theory that the Office would no longer be “counting scalps”. Clearly Leitner must have missed that memo.

    • I agree; you should read my blog sometime:

      “Campaign promises? Trying whales seems like a way to increase the scalp count, and “counting scalps” was definitely not one of the planks in Pat Lykos’s campaign platform. If you aren’t concerned with your scalp count, you encourage the troops to try the dogs, not the whales.

  3. I had an ADA up here do this a couple of times. I started having my clients plea open to the court and go to the judge for punishment. After about 2 much lighter punishments than the ADA wanted, this practice came to a screeching halt.

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