Pat Lykos is Wrong. Again.

It’s an encouraging sign that, when two prosecutors this week used seven of their peremptory challenges to strike black potential jurors, resulting in a sustained Batson challenge and the dismissal of the jury, Harris County District Attorney Pat Lykos disciplined them.

Forcing a prosecutor who uses peremptory challenges on the basis of race to start over with a new jury panel is like throwing him in the briar patch; it’s no kind of deterrence. (The better remedy in the trial court might have been for the judge, Jeanine Barr of the 182nd District Court, to seat the black jurors whom the prosecutors couldn’t give race-neutral reasons for striking.)

I can’t say whether the discipline DA Lykos meted out was excessive because, well, we don’t have anything to compare it to. I’m thinking that the accused, who gets to sit in the Harris County Jail now till June instead of finishing his trial this week, would answer the question in the negative, though. If he is acquitted then, he’s spent three extra months in jail thanks to the prosecutors; if he’s convicted then, we can never know whether this week’s jury would have acquitted him.

All human beings have prejudices. Anyone who denies having prejudices is more likely to fall victim to his own prejudices. The best we can do is to be aware of them and not act on them.

Any lawyer who tries cases is sometimes tempted to fall back on stereotypes in exercising peremptory challenges. When we succumb, we’ve failed. Sometimes, though — because of limits on voir dire — it’s the best we can do. These are two conscientious lawyers who screwed up one voir dire. I don’t think they consciously said, “first thing we do, let’s strike all the blacks”, but neither do I believe that they did an internal Batson audit of their strikes before turning in the list.

Their boss was right to discipline them, to remind both them and the rest of the Office to do such an audit so that they can’t claim to be “shocked” when 12 white people are called from the panel to the jury box.

In  the Houston Chronicle, DA Lykos called her two employees “negligent and incompetent.” “Negligent” is fair, as the lowest mental state that ought to support discipline, but publicly calling lawyers who work for you “incompetent” is beyond the pale. To call a lawyer “incompetent” in any circumstances is harsh. It might make good press (lead story! front page! woohoo!), but it’s ruinous to a good lawyer’s reputation, and potentially libelous to boot.

If you work somewhere, and the boss might call you “incompetent” on the front page of the ninth-largest daily newspaper in the United States, let’s face it: it’s a shitty place to work.

0 responses to “Pat Lykos is Wrong. Again.”

  1. Mark, when I retired, the appropriate remedy was to place the inappropriately struck juror on the panel. I hear that the leg changed the rule to mandate busting the panel as the only remedy. Is that true?

    • Yes, yes it is. See CCP Art. 35.261 — “If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.”

      I try to learn something new every day; now I can take the rest of the day off. Thanks.

      But it looks like (I haven’t read the opinion yet) in State ex Rel Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App. 1993) (thank you, Mac Secrest!) the CCA approved the court deciding to reinstate excluded veniremembers.

  2. Good job Pat and Jim. You continue to destroy morale and get rid of your best prosecutors. You are making my life much easier. Oh, and Pat, wait until you have to try a REAL case against a REAL defense attorney on your own.

  3. Mark, are you suggesting that a prosecutor “audit” his/her strikes even when he/she believes that each peremptory was exercised for a race-neutral reason? If the audit reveals that all African-Americans were struck, then should that prosecutor retract one of the challenges and use it on a non African-American? Is the purpose of the audit to make sure that all African-Americans haven’t been struck? Even if they should have been?

    Are you also suggesting that you have NEVER considered stereoutypes when exercising a peremptory challenge to the benefit of your client? If so, that’s remarkable, if not impossible. In a perfect idealistic milk and honey world, where a Judge gives each side several hours to thoroughly evaluate the 65 venirepersons, I can indeed see a scenario where all stereotypes can be put aside. After all, each lawyer would have the chance to get down to the nitty gritty about what each person on the panel truly thinks. Unfortunately, that is not our system. Our system is one guided (right, wrong or indifferent) by efficiency and judicial economy. Judges have huge dockets and they ramrod trials through the system in blitzkrieg fashion. In most of your garden-variety felony cases, each side gets less than an hour to chat with the panel. Even if we could talk to all 65 people, we’d have about 45 seconds per juror. That simply isn’t near enough time to ferret out true feelings, biases, pre-conceived notions, prior life experiences, etc… My point is this… Its easy to mount the sop box and chastize these lawyers. However, in this case, I haven’t heard a single person come forth with any accusations that either of these lawyers has any patent racial biases or prejudices. To the contrary, most on both sides of the Bar have lauded each lawyer’s propensity for fairness and for ther content of their respective characters. Perhaps the soap box speeches and political grandstanding should be targeted towards the sickness of the system itself. Until lawyers are given adequate time to carefully evaluate each potential juror, I find it practically impossible to remove the use of stereotyping, at least to some extent, from the voir dire process.

    As an aside, some rumors are now floating out there that Judge Barr, in a side-bar, noted that she didn’t actually think the jurors were struck because of their race, but that the matter “looked bad” and, therefore, she had to sustain the objection. If true, isn’t the more compelling story that a judge and DA both succombed to the temptations of appealing to the popular anti-discrimination battle cry, even when no substantive reason for doing so actually exists?

    I think we are all in agreement that Lykos’ calling her prosecutors “incompetent” was grossly inappropriate under the circumstances. As more information comes out about how all of this went down, I think we may have to question whether the prosecutors’ culpability was even “negligent.”

    I’ll hang up and listen.

    C. Kennedy in Frisco, Texas

    • The purpose of the audit is so that they can’t claim to be “shocked” when 12 white people are called from the panel to the jury box. I should have said that in the post. Oh, wait, I did. What the prosecutor does with the results of his audit is a different question. I imagine that there are some prosecutors who love the idea of trying a black defendant to an all-white jury in Harris County.

      No, I’m not suggesting that I have never considered stereotypes (hence the first person plural). We all have prejudices, and sometimes we get squeezed so that’s all we have to go on. When I do, I’ve failed but, as you note, it might be by no fault of my own. Judicial efficiency, which is the rationale for arbitrary time limits both for talking to juries and for deliberating about how best to exercise peremptories, is the enemy of equal protection.

      I’ve heard the rumor about Barr saying that she didn’t think the jurors were struck because of their race. I haven’t heard any substantiation from anyone who heard her say it; if I had, I would inquire into the circumstances and the timing. Judge Barr spoke clearly in the granting of the Batson motion; anything she said afterwards may have been to assuage the hurt feelings of the prosecutors.

      It may not have been deliberate — maybe the stereotype that black jurors are more pro-defense than white jurors is such a part of Houston legal culture that the lawyers decided to strike the blacks without giving race any serious thought.

      I think I’m as big a critic of our elected officials as anyone. But c’mon now: seven out of 10 peremptories used against black folk? Really? I may have to order the transcript of the Batson hearing for our edification.

  4. “Their boss was right to discipline them”

    I cannot disagree more. This entire situation has take the absolutely defensible position of two prosecutors and distorted into political fodder and nothing more. It’s utter bullshit for these two guys to get treated like they did–by the judge, by Lykos, and by commentators.

    • You’ll notice that I’m not using their names, because I think they have been treated unfairly by Lykos in the press. I’ve edited your comment accordingly.

      Can you share with us the knowledge that you have that leads you to conclude that the two prosecutors had racially neutral reasons for striking all seven of the black jurors?

  5. Mark,

    Does the State have the option for making a Batson challenge on a Defense attorney – or is that option only available for the Defense?

    Something that has not been discussed – what now will happen to the relationships between the DA’s in the Court and the Judge of that court:

    Example: Judge X does not like her #2 ADA and then there is a trial in which the Defense makes a Batson challenge – the Judge X knows that if she grants it; the ADA will be publicly chastised and then ultimately re-assigned from Judge X’s Court – so the Judge grants the Batson challenge based on that.

    Or the vice versa – the Judge really likes the ADA and while the Defense has a legitimate Batson challenge, the Judge knows the reprecussions to the ADA and therefore does not grant the challenge.

    • Yes, the State can make a Batson challenge to defense peremptories. I’ve never heard of it happening, but Batson is based on both the accused’s right to fair jury selection, and the jurors’ right to serve.

      That Judge Lykos’s reaction might color judges’ future responses to Batson motions in either of the ways you speculate is a concern. Sustained Batson challenges are so rare that it’s unlikely that we’ll notice if judges are more reluctant to grant them as a result of this incident.

      If prosecutors bend over backwards to make sure that juries look like the community they are supposed to represent, even if that leads to an acquittal now and then, that’s okay with me.

  6. I agree with Mark about a Batson “audit”. At the very least, the DAs will realize they’ve coincidentally struck every black venireman from the panel and will have to articulate a race-neutral reason why each was struck. Then they should run the reasons by a coworker to see if they pass the smell-test and, if not, re-examine their strikes.

    I also agree that Pat Lykos calling any trial attorney “incompetent” is akin to Judge Sharon Killer calling the Commission for Judicial Conduct “illogical”.

    • There’s not actually time for all of that, but if they think about how the jury looks compared to the panel and the community, that’s a good start.

      Imagine being black, and being tried before an all-white jury. Imagine being white, and being tried before an all-black jury. Is that what justice feels like? Is the prosecutor who makes it happen seeking procedural justice?

  7. I do not think it was too harsh or inappropriate to call these lawyers incompetent. A competent trial lawyer doesn’t violate Batson v. Wheeler. They did violate it. Therefore, they’re not competent. They screwed up, wasted the taxpayers’ money, the court’s time, the jury’s time, and as you point out, the defendant’s “time” (as in he’s serving time). Justice delayed is justice denied, and justice was definitely delayed by striking all seven black jurors off the panel.

    These lawyers made the DA’s office look bad. (They made the DA’s office look like it has a culture of racial prejudice against blacks. If you agree that racial prejudice against blacks is bad, then I think you’re going to have to agree with me.) The DA, Lykos, is the embodiment of that office — the one who gets re-elected or not based on whether the voters agree with how the job is being done. If the DA wants to make it clear that these two lawyers’ actions don’t represent the DA’s office, then it takes an action, a statement, just like what the DA did.

    In reading your criticism of the DA, I wonder if perhaps you’re not just too eager to find fault with the DA, no matter what the DA does? I commend the DA for calling out (in no uncertain terms) any employees of the DA’s office who either are, or give the appearance of being, racially prejudiced.

    I’m a criminal defense attorney, too, and I want to commend the judge for sustaining the Batson challenge, and also commend the DA for calling these two lawyers out.

    • See, North Dallas Lawyer, we’re not all in agreement. We’re going to have a cage match between sctexas and Lawyer K. Two commenters enter, one commenter leaves!

      Maybe I am too eager to find fault with Lykos. Probably not, though — see my quote in the Chronicle article; I commended her before I knew she called them “incompetent”. Anyway, might it be the responsibility of citizens in a free country to find fault with their elected officials whenever possible?

      • Cage match sounds like a plan — I haven’t gone to trial in a while, so it would probably be good practice, help keep me scrappy and sharp and on my toes. 😀

        On a more serious note, I live across the country from y’all so I had not seen the headline screaming “INCOMPETENT” (in a size of bold block font normally reserved for the declaration of war, etc.) I will be the first to admit that my knowledge of this issue has come mostly from reading this blog. But from what I’ve seen, I still think DA Lycos responded appropriately. The newspaper’s actions may have made Lycos’ comments seem harsher and out of line, though, so I also agree with Lycos’ retraction.

      • MB wrote “might it be the responsibility of citizens in a free country to find fault with their elected officials whenever possible?”

        I couldn’t agree more. Keeps ’em honest and on their toes, and we all need that. 🙂

        You are doing a great service with this blog, in my opinion. Very enjoyable to read, and wonderful coverage/discussion/exploration of important issues. Please keep it up.

  8. Again, remembering that I’m an outsider, and all I know about this stuff is what I read here and elsewhere — oh, and from watching Law & Order — so when you all call me on my ignorance about this stuff, I beat you to it, neener, neener . . . .

    There’s this magical spell that only defense attorney PCs can used called Batson, where if a prosecutor uses a discretionary/peremptory strike to eliminate a potential juror NPC from a panel, he or she can be called on it if it can be argued that the prosecutor PC has kicked off too many folks like that, and where the prosecutor has to answer as to why, and if he doesn’t roll at least a thirty and if they explaination isn’t a lot better than other than “hey, didn’t you notice that juror was a black guy/asian woman/Jew/whatever” — and if there’s no good answer, the dungeonmaster rolls against Wisdom Something Remedial happens at the judge’s (or appeals court’s, or whatever’s) direction.

    So why wouldn’t a competent, honest, decent prosecutor, every time that they kick off a black guy/asian woman/Jew/whatever, make a note as to why they didn’t want them on the jury, just in case? (A cynical guy would think that a dishonest, arguably competent, clearly indecent prosecutor would compile a bunch of stock excuses, in advance, and plug the closest one in whenever they wanted to kick off the black guy/asian woman/Jew/whatever, but that’s another matter.)

    Is it possible that what this comes down to that Lykos is really punishing these two guys because they hadn’t gone out and bought Shazam: Big Book of Batson Bases?

    • I think it highly unlikely that Lykos is, in her mind, punishing these two guys for not knowing the right magic words. Practical effect is, however, a different matter.

  9. I have used a reverse Batson challange when the defendant was white and the victim was black. It wasn’t granted, but did make the defense aware that it could be a two way street.

  10. I have mixed feelings about this whole affair. I have not tried a case in Harris County in many years so I don’t know the two prosecutors involved, but somehow I agree that calling them incompetent may be going too far. It seems to me that when you throw words like “incomptent” around, it sticks to people like tar (to continue a previous metaphor).

    But there is also a silver lining in this that will make the prosecutors think long and hard before striking minorities in the future. Maybe now we will start to see juries that more closely resemble a jury of the defendant’s peers. The remedies in the law for Batson had no teeth and no real incentive to refrain from this harmful practice.

    Issues of race matter. Most people don’t want to be identified as racist, but we all use racial stereotypes in some form or fashion, whether we are aware of it or not. I have noticed that when I make a Batson challenge, the prosecutors usually take it personally. You make a Batson challenge and the prosecutor thinks you’re calling him a racist. I’m not. I just want my client to have some people on the jury that look like him.

  11. My problem with this whole issue is that Lykos made her decisions and publicly ridiculed these two prosecutors without even bothering to hear their side of the story.

    In any other major government organization, they would have at least gotten a hearing. Let’s face it, even cops who get caught doing horrible things on video get their hearings.

    In my opinion, Lykos was probabably absolutely THRILLED that this happened. She got word of the occurence and immediately telephoned the Chronicle herself. It was to her political advantage to show that she took these allegations seriously and react before at least hearing their side of the story. She may have done the politically wise thing, but her leadership skills are absolutely pathetic.

    Look for some folks to be quitting in disgust as soon as they can line something up on the outside.

    • Murry-Mark,

      If Patty really wants a good office, she needs to start leading from the front. I don’t think that the troops would hold it against her that she has a learning curve and loses at first. She needs to try. Her present course insures an office of snivelling yes men, constantly cowering until its time to pick up their paycheck, lead by one all recognize as just a politician.

      Unfortunately, knowing her well, I think that’s what she wants.

  12. Lawyer K: It’s Batson v. Kentucky, 476 U.S. 79 (1986), not Batson v. Wheeler.

    And yes, it can also be used against the defense. In fact, even White defendants can complain of Batson error: Powers v. Ohio, 499 U.S. 400 (1991).

    The idea of Batson challenges also extends to sex-based peremptory challenges. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

    The court later extended the same rule to civil trials in Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991).

    • Ooops! Thanks for catching that. Didn’t feel right as I typed it; I should have looked it up.

      (Where I practice, in California, Wheeler is a state case that expands on Batson a bit, so I have always referred to it as a Batson/Wheeler challenge.)

      Posting more or less anonymously like I am, I reserve the right to be lazy/sloppy. But thanks for setting it straight.

  13. Yes, its true that a single careless word can drown out a much larger and more important point. So it was with Lykos’ unfortunate remark. And, so it is with the title of this thread. That the elected District Attorney of Harris County took action to discipline prosecutors for whitewashing a jury is a monumental leap forward that would have been unthinkable just 15 months ago. This action signals change of the most fundamental sort. And not just for defendants. For Houstonians of color who have been for generations excluded from one of the most important roles a citizen can play in our democracy; for victims who teach us that what they need most from the criminal justice system is finality in judgments; for the general public who need to know that the judgments of their courts are reliable and fair (given that diverse decision-making bodies have been demonstrated to make more accurate factual determinations than non-diverse bodies).

    To take a firm stand that ALL discrimination is ALWAYS intolerable — even when motivated by strategic rationale and not racial hatred — is the RIGHT thing for any public official to do. For the leader of the HCDAO (the office that defended death verdicts assessed while defense counsel dozed, sought death against a juvenile even after Roper v. Simmons had been argued, and for decades defended the most preposterous but facially neutral excuses for eliminating 90 and 100% of African-Americans from jury pools) to make such a statement and back it up with clear and decisive action is a sea change that will impact everyone who walks in the door of the CJC.

    To announce such a profoundly important event under the title “Lykos got it wrong” is to make the same error of sloppy overstatement that she made when she called her staff incompetent. The text of the posting does welcome progress, but the point is lost in a missive tagged only with “incompetent” and “Pat Lykos.” Where is the tag for racial justice, for fair juries, for due process? Maybe the roll-out of this decision was clumsy; maybe her language was careless and sloppy; maybe she bruised feelings and egos in her manner. But, where it really, really mattered, Lykos got it RIGHT. And, with regard to her unwise comment, she had the guts and good sense to publicly apologize and correct herself.

    I’ve never met Pat Lykos and don’t know much about her. I’ve liked and respected Mark Bennett for years. I hired him as co-counsel in a capital case and even chose him as my own lawyer when I was personally served with a subpoena for privileged materials belonging to a client. He is my friend. Lykos is not. But, in this instance, I think Lykos is owed a retraction. Knowing Mark, he is wise enough and thick-skinned enough to admit his hyperbolic misstep and give credit where credit is most certainly due.

    • “I can’t think of a case under previous administrations where prosecutors were disciplined for doing something that hurt or could have hurt the rights of the accused,” said Mark Bennett, president of the Harris County Criminal Lawyers Association.
      “It’s an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones.”

      That revolutionary praise of our Republican D.A. was in the Houston Chronicle, not my pissant little blog that nobody reads.

      Even here, I spent six paragraphs praising Lykos’s disciplining her subordinates before two paragraphs criticizing her calling them “incompetent”. How much more credit shall I give her?

      So I guess I’m either not wise enough or not thick-skinned enough to admit my hyperbolic misstep. I can’t make every point in every post; the point of this particular post was that calling them “incompetent” was wrong. Thus the title. D.A. Lykos inerasably linked two good lawyers’ names to the word “incompetent.” Thus the tags.

      It was some time after I published this post, by the way, that D.A. Lykos (to her credit) publicly apologized for her use of the word “incompetent.”

  14. the harris county da’s office is a joke. i was shot by my ex-wife from behind and she confessed to shooting me without being provoked and the da’s office dropped the case. jane waters, charles brodsky, jim leitner, pat lykos, roger bridgewater, don mcwilliams have done nothing. there is no justice for a black man in this society. harris county case number 1317293 they have never interviewed me, they have not investigated anything, i have called many many times and they threatened to file charges against ME for phone harrassment what am i to do? anyone can contact me at [email protected] i need help

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