Maybe We Can Fix It At The Auto De Fe

Nobody could possibly have predicted way back in August that Pat Lykos’s failure to seek outside counsel to prosecute Don Jackson, a misdemeanor judge before whom she had appeared (through her assistants) every court day since January, and before whom she may have to appear again every court day until one of them leaves office, would cause a problem. Well, almost nobody.

During the bit of trial that I watched (and tweeted) this week, there was some evidence that the prosecutor who made the decision to prosecute Judge Jackson had not gotten along well with him when she was assigned to his court—that in fact he had asked the DA to move her to a different court. That made it look like Judge Jackson’s prosecution might be motivated by personal animus.

Now the defense has discovered that Lance Long, who is prosecuting Judge Jackson, signed a petition for Judge Jackson’s opponent in the upcoming judicial elections, which kicks things up a notch from personal to political animus.

There’s nothing inherently wrong with a lawyer supporting the opponent of a judge before whom she appears. But there is something downright improper about a lawyer prosecuting a judge whom he opposes politically. A violation of the disciplinary rules? Probably not. Is it unethical? At first impression, yes. Does it create an appearance of impropriety? Unquestionably.

A district attorney has to appear untouchable. Any suggestion of corruption, any colorable claim that the office is being used for political ends in one case, renders every prosecution suspect. I was bragging to a client today about the Harris County DA’s Office not being corrupt. We were not, I thought, like Maricopa County, where—just by way of example—the County Attorney files indictments against his political opponents on the bench. How wrong I was.

If Don Jackson is convicted, the questions will always exist: Was this a political hatchet-job by those who, because he doesn’t lean far enough toward the prosecution’s side of the table, were going to see him off the bench one way or another? Is the DA’s Office sending a message to other fairminded (that is, not blatantly prosecution-oriented) judges that they may be targeted too?

If Judge Jackson is acquitted, the same questions will always be asked. Pat Lykos might act to mitigate that (end the prosecution due to the overwhelming appearance of impropriety (while supporting her assistants fully hahahahahaha sorry couldn’t stop myself)), but she can’t prevent it.

It didn’t take a rocket surgeon to predict apparent conflicts of interest keeping the Harris County DA’s Office from objectively deciding how to handle Judge Jackson’s case. The one thing that Pat Lykos could have done, way back in the beginning, to prevent this clusterfuck would have been to ask an outsider, from another county far from Houston and with no political axe to grind, to investigate Judge Jackson and prosecute if necessary. August would probably not have been too late.

But did they listen to me? Noooooo.

0 responses to “Maybe We Can Fix It At The Auto De Fe”

  1. I think what you’re forgetting is that we’ve all heard so many stories of public officials being corrupt, in one way or another, that we mostly don’t care anymore. Or, if we do care, we’re at least not shocked or surprised by it any longer.

  2. Hmmmm, Like the old District Attorney of Travis County prosecuting Tom Delay, or Kay Bailey Hutchinson?

    Not sure this really has legs.

    Most prosecutors are pretty biased against the defendants.

    • Tim, if I recall correctly there’s a statute or constitutional provision creating venue in Travis County for prosecution of statewide elected officials, which makes sense because it’s easier to keep an eye on Travis County than to have statewide officials prosecuted hither and yon by anyone with a grudge. I don’t know of any sure way to find a prosecutor who isn’t interested in U.S. politics, so if statewide elected officials are to be prosecuted, it might as well be done in Travis County as anywhere else.

      But with locally-elected officials like Jackson, it would be possible, by going outside the county, to find lawyers who aren’t interested in the local politics and don’t have a dog in the hunt.

      I just realized: all three of those cases were defended by DeGuerin and Dickson.

  3. I don’t believe the argument can be made that Judge Jackson was “targeted” by the DA’s office. After all, it was the FBI who alerted them about the Judge’s alleged indiscretion. However, your point is well taken about using a special prosecutor under these circumstances but I would extend it further to using a visiting Judge. County Court Judge or District Judge they are still two Harris County Judges working under the same roof.

    • Shandon, indiscretion is not crime. The DA’s Office made the decision to prosecute Judge Jackson for something that could fairly have been looked at as foolish but not criminal.

      I think a visiting judge would probably be a good idea too, to avoid the appearance of impropriety.

  4. Mark, are you of the opinion that even if the complainant’s version of events is true, there was no crime? I’m not necessarily disagreeing with you but wonder why the Judge didn’t grant the defense’s motion for instructed verdict.

    As far as the DA’s office making a bad decision you arguably may be right about that but it is a far cry from Lance targeting Judge Jackson because he wants Cary Hart to be the Judge. I think Lance and Paula had this case handed to them a few weeks ago.

    • I haven’t heard the complainant’s version of the facts. The indictment alleges an offense.

      Maybe, when he was handed the case, Lance should have said “no, thank you.” This does not make him look untouchable. It’s all of a piece—a DA’s Office that, at best, didn’t have the thought that maybe a less-involved lawyer should take a look at this particular case.

  5. The epilogue: And the motion was withdrawn by the defense after it was discovered that a member of their team also signed the petition….

    • That they withdrew the motion is surprising to me, since the comparison of a prosecutor prosecuting a defendant whom he opposes politically, to a defense lawyer defending a defendant whom he opposes politically, is a false equivalency.

      In any case, it doesn’t make the whole prosecution look any less suspect. You know that, right?

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