Ethos

Murray Newman laments what he expects to be the loss of prosecutorial discretion in the Harris County District Attorney’s Office under the Lykos / Leitner regime.

Murray misses the old days. Ah, those glorious Rosenthal / Siegler days, when prosecutors had discretion — discretion enough to run amok. . . when 29-year-old misdemeanor chiefs with no life experience were the ones providing critical ethical training to 25-year-old misdemeanor threes.

As a result of all that discretion, and absent meaningful adult supervision from the top down, a culture of arrogance prevailed in the Harris County District Attorney’s Office. Many young prosecutors (most of whom are still employed there) proved themselves in need of a more structured work environment. That’s what you get when you give 27-year-old children who’ve never had their butts kicked by the world the power to decide who deserves what: a culture of arrogance.

The ethos of The Office is set by its leaders. The Harris County DA’s Office has, for the last eight years, had the personality of Chuck Rosenthal — juvenile (e.g. fireworks in the stairwell?) with less than good judgment (e.g. improper emails on a public computer) and an attitude of being above the law (e.g. deleting those emails).

To the prosecutors who have been whingeing for the last twelve months about all the harm Chuck Rosenthal has done to the DA’s Office: stop.
You benefited from working under Chuck Rosenthal, cashing the
paychecks, accepting his assignments and promotions, even supporting his reelection campaign in 2004, and you never
said the first word about all that harm. As a party to whatever
Chuck Rosenthal “did to the office”; you’ve got no moral authority to
complain. Now you’ve got the more structured work environment that it appears you needed? GPTW.

Now we’re in backlash mode. Will your work environment be inappropriately structured? Will the new regime’s reaction to the culture of arrogance be overreaction, an attempt to break the will of you, the working lawyers of the DA’s Office?

You, ladies and gentlemen of the Harris County District Attorney’s Office, will decide that tomorrow. You’ll determine what the ethos of the office for the next four years will be. If you don’t exercise your discretion tomorrow and stand up for yourself (Murray doubts that you will, but I am ever hopeful), then you’ll be giving up whatever discretion Pat Lykos would care to take. If you’re there for her swearing-in tomorrow you’ll be a party
to the Lykos administration just like you were a party to the last one.

If you give her the power to order you into her presence for a meaningless ceremony on a county holiday, lament the circumstances that prevent you from behaving as a highly-trained adult professional should behave, but don’t come crying to me about your loss of discretion. It may not be what you want or deserve, but you’ll be getting exactly what you’ve asked for.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in discretion, ethics and/or professionalism, Harris County District Attorney and tagged , , , . Bookmark the permalink.

19 Responses to Ethos

  1. In all honesty, probably the best thing that could be said about Chuck’s leadership was that he left the prosecutors alone so that they could do their jobs. I’m sure that there were some younger chiefs down in misdemeanor that may have let you down from time to time, and I’m sure there is a culture of arrogance to some degree as well.
    But even when dealing with an arrogant prosecutor, a defense attorney always can move up the hierarchy chain in trying to search for the for the answers that they would like to hear. If the Three won’t hear you out, go to the Chief. If the Chief won’t agree to a deferred, go to the Division Chief. If the Division chief is being obstinate . . . you get the picture.
    You have to admit that there was a high amount of value in dealing with a reasonable prosecutor who would fairly assess a case and do the right thing, don’t you? I’m just saying that the Lykos Administration doesn’t seem to be fostering that type of attitude without putting in a healthy dose of fear on the backside of it.
    It is THAT which I am sad to see.

    • Mark Bennett says:

      Murray, it’s time for a few small repairs. Overkill will happen, with the cooperation of those who are spending their Thursday morning paying mandatory homage to the new boss.

      Management, like psych medication, is difficult to calibrate.

      Ghostrider had a question about overtime here. Care to field it?

  2. jack says:

    Bullseye!

  3. You have to admit that there was a high amount of value in dealing with a reasonable prosecutor who would fairly assess a case and do the right thing, don’t you?

    What DAO are YOU talking about?

  4. I agree, Mark.

    And I fielded the Ghost Rider’s question on the other post.

  5. Alias says:

    This is all pretty easy to say when the only asshole you’re working for is yourself. But when the asshole you’re working for has shown themselves to be petty, vindictive and, in general, to have poor potential for becoming a good leader before they’ve even started the job, it’s a whole different ballgame.

    You deride the A.D.A.s as being incompetent, unethical and untrustworthy. You comment regularly that we wouldn’t make it in the ‘real world’ of criminal law (which, by the way, is beginning to sound like when Lykos says ‘Rule of Law’ – nonsensical and boringly repetitive…just where is the ‘real world’ of criminal law anyway? Is it only defense work that’s real?). But then you tell us to grow a pair and stand up to the regime or risk being complicit to all the illegal/immoral/unethical actions that you are so sure are going to happen under Lykos (after all, no one in the D.A.’s office can be trusted – see above). See, growing a pair and standing up to the tyrant means that we’ll all be out of jobs pretty darn quick. So: who’s going to hire us after we’ve been fired? You? Your brethren? You say we’re pretty much worthless as attorneys (again, see above). Are you going to pay me thousands of dollars to defend you? How about those of us who just started at the office? Are you going to hire a Baby D.A. to defend you? You constantly note that we are inexperienced, that we don’t know what cases are worth on the street, that we are unreasonable in our negotiations. Would you even refer clients to us (maybe just those who don’t have $10K or $5K to pay your fees…)?

    Bull. Don’t tell me how crappy I am just because I’m with the D.A.’s office and then tell me that suddenly, by virtue of becoming a defense attorney that I’ll gain morals, ethics, professionalism and competence. Don’t tell me that losing my job makes me a better person. Why are the two (being an A.D.A and a better person) mutually exclusive?

    And yes, let’s all stand up to Lykos and lose our jobs because some defense attorney told us to (dared us to…what are we? eight?). Who’s going to prosecute crime when we’re all fired? Oh wait. That’s right. None of these crimes were committed. It’s just a bunch of overzealous, power hungry children picking on socio-economically disadvantaged ‘unpopular’ kids. There’s no actual basis for any of the charges filed at the office. Everyone’s innocent. There are no victims – just vengeful people. Let’s all become defense attorneys and make Lykos file and try every single case alleged in Harris County all by herself. That’ll show her and the voters! Since there’s no actual crime, as the D.A.’s office is just making stuff up, the streets of Harris County will automatically be safer because those pesky prosectutors are off the streets!

    I agree that some of the A.D.A.s need more life experience and maturity before flexing the muscle they have. And don’t get me started about the causes and contributions to crime. I also agree that it would be nice to have been able to stand up on principles today and refuse to go. But, as you so eloquently said, mortgages, like attention, must be paid. Not one of you defense attorneys deriding the A.D.A.s for today’s attendance have stood up and said, “Yeah, I’ll pay those bills for you until you can pay your own in this lovely economy after Lykos fires you for not respecting her authority.”

    Like I said, it’s pretty easy to yell “Coward!” from your tower. But then, I also enjoyed your editorial in the Chronicle saying how things are going to be better now at the D.A.’s office under Lykos. Almost as much as I enjoy reading here how horrible you think it’s going to be under Lykos. Fascinating reading.

    And no, I don’t think everyone in the D.A.’s office is perfection embodied. We are all human and we all make mistakes. We all (even you) are inconsistent and need work. But don’t become idealistic only when you’re talking about the folks at the D.A.O. Yes, the position comes with responsibility, and yes, those people in the position should be honorable. But don’t hold everyone else’s mistakes against me just because I hold the position. And I won’t hold every sleazy defense attorney’s actions against you. Agreed?

    • Mark Bennett says:

      Alias,

      Quite a rant. Feel better now?

      Good.

      “The real world” is somewhere other than the high school – law school – salaried professional job track. The real world is where those people live whom you’ve signed on to put in prison for whatever reasons the Texas Legislature deems appropriate. It’s the place where people don’t know how they’re going to pay next month’s rent, where an unexpected car repair might ruin them, and sickness? accident? forget it. It’s the place where a man’s perception of himself as a man is regularly challenged because he doesn’t know how he’s going to take care of his family if his luck doesn’t turn, or if his luck turns bad. You may have had a tiny taste of it in the last twelve months — one of the good things, I think, that comes of the office turmoil. Or maybe you’re one of the few prosecutors who had been there before The Office — if so, you’re in a small minority, and it makes you a better lawyer and a better prosecutor. Children of 25, 26, 27, 28 years of age who have pretty much always been mollycoddled have no business judging other people, if any of us have.

      Many of those people living in the real world, by the way, are my clients. I know their stories. They really are my friends. And, no, I won’t refer them to you because if they can’t afford what their cases are worth, I often represent them for what they can afford, and if I can’t then there are fine young lawyers who believe in the inherent value of keeping people free who need the work.

      Generally the things that hit home the most are the things that are closest to the truth. Unethical lawyers are more upset by lawyer jokes; people who are unsure of their own sexuality are more homophobic; dishonorable people are more concerned about their honor. I don’t think that the vast bulk of Harris County ADAs are incompetent, but your chances (any prosecutor’s chances) of coming out of the office and immediately being a more-than-minimally-competent criminal defense lawyer are about the same as mine would have been, after a decade of practice, of getting hired by Chuck Rosenthal to do his idea of God’s work. Different skill sets, different philosophies and, believe it or not, even I didn’t spring forth full-formed as a defense lawyer who always made the right calls for his clients. Fortunately for you, you’d find a lot of support from the community, including from me (whoever you are) if you decide to try your hand at keepin’ ‘em out instead of puttin’ ‘em in.

      If one ADA had declined to attend today’s coronation, he would have been fired. If all of them had declined, though, none of them would have been fired. You know what the right thing to do would have been. So what’s the person who can’t trust everyone else to do the right thing to do? It’s the prisoner’s dilemma; I know it well. For the same reason that you went along with today’s coronation (how was it? special?), you’ll go along with any other Lykos / Leitner efforts to take away your discretion. If you take the Queen’s shilling to maintain the Empire, you’re responsible for the Empire.

      Two propositions that I believe: (A) Open files is a big move to restore balance; and (B) Pat Lykos has shown a tendency toward overkill and tyranny in her management style. If you think A and B are inconsistent then I’m afraid I can’t show you the forest for the trees. I’m sure it is clearer to an observer and commenter with no stake in the proceedings (who’ll do just fine no matter what Lykos does as DA) than to someone whose mortgage payments depend on their outcome.

      I’m that observer and commenter. I don’t know what I’d do if I were in your shoes — my great advantage in this world is that I know and never stop giving thanks for how lucky I’ve been; I still know that I need so much work (as you correctly point out) that I won’t set myself up as a judge of others less fortunate than me. The best advice that I can give to young lawyers thinking about going to the DA’s Office is that the only sure way to escape the gilt cage of regular paycheck-plus-benefits is never to succumb to it in the first place. I’m afraid that advice comes too late for you.

  6. Alias says:

    You’re right. The real world is rife with uncertainty, especially for those with fewer advantages and preparation (whether by choice or by lot). And you’re also right that many young professionals need some ‘real world’ in their lives before embarking on an endeavor that involves other people’s lives and livelihoods. In fact, I think all young people coming out of undergrad need to spend a couple of years working before they’re allowed in graduate school (no matter what degree they’re seeking) because I think that makes a better professional.

    I also agree that prosecution and defense are two different creatures. But just because I do one and you do the other doesn’t mean that I value a person’s freedom, rights and liberty less than you do. I just perform a different function in seeing it secured. I could get all righteous and say I’m protecting everyone’s rights, not just or only a defendant’s, but in reality, I’m doing the same thing you are: taking each case and evaluating it and determining what I consider to be the most just outcome based upon my experience, education and whatever meager wisdom I have gained in my years on this earth. Does that involve judgment? Yes. Does that mean I judge people? Not necessarily.

    As for judging people less fortunate than you, you do that every time you judge all the A.D.A.s who chose to attend the coronation (don’t you think?). It’s not the steady paycheck that draws me to this job – I can get that anywhere – it’s the desire to see that justice is done (kind of like what you do every day, yes?). I made it for years without a steady paycheck or the D.A.’s office, but I must admit, I do love the idea of going into work every day and trying to do the right thing. Does that mean I’ll always do the right thing? No. But, like you, I try. That’s why many of us are here – because it’s certainly not the big bucks.

    By the way, I know who I am. I’m secure in that. But you paint us all in broad strokes and that includes some very good people I consider friends – it is those good people I defend here.

    But consider this: today’s coronation was like a gunman holding a crowd at bay with a revolver – you know she’s only got 6 bullets, but who amongst us wants to take the first bullet? Or for that matter, the sixth? You’re not staring down the barrel. We are. Yet you judge us for what we do under duress. Even the law gives us a pass for that!

  7. Mark Bennett says:

    If I were judging you, I could say whether you would be getting what you deserve. But I don’t pretend to know what you deserve (if I did, I might be a prosecutor), so the most I’ll say is what I’ve said: that you’ll get what you ask for.

    I sympathize. You haven’t had the advantages that I have, so you’ve gotten yourself trapped in a situation where you can either go along to get along, or lose your job and enter the scary, disordered, free world of self-employment. (
    Here’s your koan for the day: Who chooses fewer advantages?)

    Yes, the fact that you work to increase the government’s power does in fact mean that you value human freedom less than I do. People don’t become more free without institutions (among them governments) becoming less powerful. It’s a zero-sum game. The best that can reasonably be said in favor of dedicating oneself to prosecution is that people should be willing to give up a certain amount of freedom for a certain amount of safety (that is, after all, what society is about). But we’re so far beyond that “just enough” point, and government is running so amok, that every marginal increase in order has a huge cost in freedom. Even if you only prosecuted aggravated robberies, you’d be making it possible for the Harris County DA’s Office to prosecute residue cases.

    Your gunman-with-a-revolver analogy is well taken. Lots of really bad things have been allowed by good people in similar circumstances. Most Germans [in Nazi Germany] weren’t diehard Nazis. Were they complicit?

    Drug traffickers often keep people involved in their conspiracies by owing them money, with the promise of payment after one more load. “I couldn’t afford to walk away” isn’t a defense.

  8. brian tannebaum says:

    I just want to know what it’s like to graduate college, then enter law school with the purpose of become an “advocate” of some type, someone who either questions authority, or is a protagonist for existing law, creatively arguing the different scenarios in which statutes apply, and then taking a job where you live in fear doing what you believe is right. Just proves that there is a difference between a lawyer, and a person with a law degree.

  9. Alias says:

    Who said anything about living in fear of doing what you believe is right? Do y’all think Lykos will impose an atmosphere of fear in which every A.D.A. must fear properly dismissing a case or making a fair offer? I hear that Lykos is going to be some defendant-loving softie who allows accused criminals a free pass just to prove she’s nothing like Rosenthal. Time will tell.

    Aahhh, forget it. I’m experienced enough to recognize when I’m just arguing with a bunch of extremists. Y’all honestly appear to believe that the mere existence of law enforcement is the sole causation of crime. You seem to think the government is obscenely inappropriate for attempting to hold someone accountable for murder, rape or robbery. I don’t happen to think all A.D.A.s are a bunch of nazis or trembling cowards (to paraphrase). Just like I don’t think all defense attorneys are a bunch of lying, double-crossing, ambulance chasing idiots. I’m desperately searching for a modicum of moderation here.

  10. Tarian says:

    I’m pretty late to this party, but if I could pose a couple of simple questions to our host…

    1. Mark, where did you get the “life experience” you believe is so necessary to the practice of law before you began defending people? And, assuming you did, are you suggesting that all lawyers should “do time” or be required some other form of boot camp before being licensed?

    2. Since when do you have to have “real world experience” to know right from wrong? Legal from illegal? Is there a minimum age at which this higher comprehension dawns, since apparently 29 is too young? When did it dawn for you? Seems like if the question of wrong or right seems too complicated, then maybe that has more to do with the viewer than the answer itself.

    I had to shake my head at the aspersions you’ve cast at the prosecutors for attending Lykos’ coronation. Cowards, boot-lickers, etc. Sure, they’re afraid, and we can all wish that they had boycotted, but they were well served in disrgarding your advice. First of all, as a minor point, both Rosenthal and Holmes required prosecutors to attend their swearing in ceremonies unless they had prior plans. So although it wasn’t MANDATORY, it was strongly encouraged unless you had a good excuse.

    Second, and more importantly, why would any prosecutor ever listen to the advice of someone who considers them an enemy? Someone who has taken unabashed delight in the disintegration of the office, gleefully celebrating the lives disrupted, reputations, tarnished, and careers ruined in the last year. Someone who repeatedly has admonished his readers to obey Napoleon’s rule of taking no action when “the enemy” is destroying himself. The advice you gave was, at best, foolish, and, at worst, a darkly cynical effort to create more turmoil. Because, knowing Lykos as we do, she WOULD have fired any prosecutor who failed to show, probably without numerical limit so long as it wasn’t the entire office. That seems to be her m.o.

    So perhaps you will excuse the prosecutors who failed to follow your exhortations to rebellion from the safety and security of your established practice, people whom you do not consider to be colleagues, fellow lawyers, or human beings, so much as targets of opportunity to be destroyed. That’s what smacks of arrogance to me.

  11. Mark Bennett says:

    “Tarian” (isn’t it about time to abandon that pretense?),

    I would say that you must be new to the blog, but I know that you’re not, so I’ve obviously failed to communicate clearly. There’s no magic point at which a human being suddenly becomes competent to decide the fate of another human being. Real-world experience (a good beating) makes everyone a better human being (and therefore a better lawyer) but it’s not, in my view, crucial, except to those who would claim to decide what others deserve. A few years’ experience between high school and The Office probably makes one a better prosecutor, but not because it teaches him what others deserve. Rather, because it teaches him how difficult it is for most people to make their way through this world, how many factors beyond our control go into every “choice” that each of us appears to make, and how difficult it is, consequently, to say who deserves what.

    If you’re talking about the right or wrong of forcing ADAs to give up their New Year’s Day even Alias (who won’t be commenting here anymore, since he/she used a false email address to register) recognized that as wrong — “holding a crowd at bay with a revolver”. I think we can take it as a given that it was wrong; the question is knowing what to do about it. Knowing right from wrong is usually easy (almost as easy as legal from illegal); doing right is often difficult; and knowing what other people deserve when they’ve done wrong is impossible.

    I’m sorry you think that I think of prosecutors as enemies. I don’t confuse the human beings with the institution, and you’ll be better served if you don’t either. Fear is the enemy; the government is the enemy; those who serve it are simply adversaries. Some of those humans are friends of mine, some are future friends, some are unlikely to be friends, but I don’t have any human enemies.

    You might see the world as “friends” and “enemies”, but I’m not letting you put that crap on me.

    Picking one’s battles is often a challenge. Sometimes we have to allow a small wrong in order to prevent a larger one. Taking as a given that mandatory coronation attendance was wrong, was that a battle that should have been fought? I take the position that this was a defining battle for the discretion that Murray laments.

    That position is either right or wrong, without regard to my fondness for the human beings in The Office. One response to it is that these people need their jobs. The better response, though, is that this is an inconsequential battle compared to those that will come, and a fired prosecutor can’t fight to keep rationality within the DA’s Office; there’ll be lots of other opportunities to get fired.

    Maybe everybody was thinking it.

    Mark.

    p.s. This blog is read by independent thinkers; I don’t flatter myself by thinking that anybody (prosecutor, defense, or judge) is going to jump because I say so.

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  13. Entertained says:

    I am still chuckling over the word, mollycoddled. That is definitely going to be my word of the day.

    Do you not think that one could attend the ceremony, and yet still excercise discretion when dealing with our cases? Just because some attended on New Years Day, despite grumblings, doesn’t mean that those same attendees will turn a blind eye to a defendant that they believe is innocent?

  14. CaliCrimlaw says:

    As a young soon to be practicioner trying to get my first attorney job in the criminal defense field, I am intrigued by the ideological divide between prosecutors and defense lawyers. Myself and some of my colleagues face the dilemma of having an ideological preference for one side or the other, but being faced with the difficulty of securing the job you want and therefore having to broaden your horizons to other venues, such as ADA instead of APD. Even a superior court Judge I clerked for told me that these days, offices do not deny you out of hand for having prior experience with the other side, and it is becoming more and more common to either switch sides or just open yourself to the possibility that you could do both.

    Based on your comments, I already know how you feel about young attorneys becoming DAs, (although ironically it would be “real life” causing people like me to pursue these positions), but I wonder if you think that it is essentially impossible to be a competent and honest DA while having an ideology regarding government and criminal justice that may be more suited to what a defense attorney does. (Or vice versa). I like to tell myself that one could maintain a sort of ideological commitment to neither side, and instead be committed to advocacy and a more generalized idea of justice and the constitutional role of government. Obviously both sides are going for different things but I don’t think that being one or the other requires a radically different idea for the role of government in citizens lives.

    Also, having a different perspective could be helpful, so long as it doesn’t cause you to lose your sanity or your ethics. (For instance, a prosecutor could be aided by consciously watching out for potential unfairness to the defendant and actively taking steps to prevent it, which in turn removes possible avenues of attack for the defense.)

    I also think (perhaps this is my young naivety talking) that there are definitely common skills that can translate from one side to the other, such as basic trial skills, an excellent command of evidence rules, and the ability to think quickly and speak clearly.

    Basically, I wonder whether you think it is dishonest or somehow wrong for someone in my position to actively pursue positions in both fields? My biased answer is: no, so long as I understand what I am doing. Sorry if this is off topic to the main post but it seems to be relevant to where the conversation has gone.

    BTW, I enjoy the blog, keep it up.

    • Mark Bennett says:

      I see the ideological difference as between a preference for freedom and a preference for safety. I don’t have a problem with those who prefer freedom being prosecutors (though I suspect the job would be frustrating, and I don’t know any libertarian prosecutors), as much as with those who prefer safety holding themselves out as criminal defense lawyers.

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