The Anthony Graves Retrial Pregame Show

In Anthony Graves’s first trial, prosecutor Charles Sebesta had to cheat to win, hiding exculpatory evidence and eliciting perjured testimony (Graves v. Dretke, Fifth Circuit opinion, PDF on Scribd).

Now, not only has the evidence that Sebesta suppressed in violation of Brady v. Maryland been revealed so that the next prosecutor trying the case can’t continue hiding it, but also the State has killed Robert Carter, its star witness—but not before he could say one last time that Anthony Graves is innocent.

Interesting evidentiary question number 1: Can the State, at the next trial, offer Carter’s testimony from the first trial into evidence?

Texas Rule of Evidence 804(b)(1) says that former testimony of an unavailable witness is admissible if the opposing party had an opportunity and similar motive to develop the testimony by cross-examination.

Militating against admissibility of the testimony are a) the fact that the defense didn’t have an opportunity to cross-examine Carter on the suppressed exculpatory statements; and b) that Carter is only unavailable because the party that wants to offer his testimony killed him. There’s a good argument, analogous to Confrontation Clause forfeiture-by-wrongdoing law, that the State shouldn’t be able to take advantage of Carter’s unavailability to offer his testimony at trial when the State caused that inadmissibility.

The State, after depriving the defense of the right to cross-examine Carter on his inconsistent statements at the first trial by suppressing those statements, has deprived the defense of the right to cross-examine Carter on those statements at the second trial by killing Carter. According to the Fifth Circuit, Carter’s exculpatory statement “‘was extremely favorable to Graves and would have provided powerful ammunition for counsel to use in cross-examining Carter.’’ The only fair resolution, where the State deprives the defense of the ammunition necessary to fully cross-examine a witness, is to strike that witness’s testimony from evidence.

The judge, Reva Towslee-Corbett, however, already ruled before the current lawyers were on the case that the prior testimony will be admissible. I don’t see the Fifth Circuit standing for that if this case goes through another federal writ.

Interesting evidentiary question number 2: Can the defense, at the next trial, offer Carter’s dying words exculpating Graves?

Rule of Evidence 804(b)(2) says that dying words are admissible if they “concern[] the cause or circumstances of what the declarant believed to be impending death.” The cause of Carter’s impending death was his murder of six people in 1994; “Anthony Graves had nothing to do with it. I lied on him in court. . . . Anthony Graves don’t even know anything about it” was a statement concerning those murders.

If Carter’s prior testimony weren’t admitted, the State would have a tough row to hoe. According to the Fifth Circuit:

. . . Graves’ conviction rests almost entirely on Carter’s testimony and there is no direct evidence linking him with Carter or with the murder scene other than Carter’s testimony.

There was testimony that the wounds were consistent (Gamso) with the blade of a knife similar to one that Graves at one time owned; Graves has maintained his innocence:

The only potentially incriminating statements allegedly made by Graves were heard over the jailhouse intercom system.  The persons reporting these statements were effectively cross-examined on the reliability of the intercom system, their ability to recognize Graves’ voice since his cell could not be seen from their listening post, and their failure to make contemporaneous reports of the comments.

And that—it appears from the Fifth Circuit opinion—is it.

Even with Carter’s testimony in evidence, if his other statements come in, along with his motivation for helping the State (the State had agreed not to ask questions about his wife, and there was a tentative deal for the State not to seek death if the case were reversed on appeal)—the State still has a tough row to hoe.

This is not a whale like that cop-shooting that case Kelly Siegler tried in Wharton County. (To those FoKs who maintain that that case was a challenge, I ask: when has a Wharton County jury given anything other than death to someone convicted of killing a cop?)

Why mention Kelly? Because, when the Attorney General’s Office pulled out from prosecuting Graves, District Attorney Bill Parham hired Kelly to take over the job. She’ll be facing off against Katherine Scardino in what is shaping up to be a hell of an interesting battle. (Kelly, I’m still hoping you’ll see the light and bring your talents over to the humans’ side of the bar, whether for injured plaintiffs or for accused defendants.)

Ask the Legal Marketing Guru

Dear Legal Marketing Guru,
I have left government service, and am starting my private criminal law practice as a hired-gun prosecutrix. I have already started creating my brand (“Prosecutor for Hire”) and negging the competition. I have been hired to try a capital case in Wharton County as a special prosecutor. What should I do next?
-Paladina, Houston, Texas

Dear Paladina,

You’re probably going to catch some flak (from those who don’t appreciate ballsy marketing) for running down the competition. You might want to temper that just a little bit. You can defuse the issue by apologizing for anyone who erroneously thought, when you wrote about “the standard, typical everyday problem that truly exists with prosecutors”, that you were talking about standard, typical everyday prosecutors.

Still, you’ve got to make the people mistrust their elected DAs and hired ADAs to do their job. So once you’ve issued your Clintonesque non-apology, point out that there are lazy prosecutors and that a complainant who relies on public prosecutors cannot get his choice of prosecutors, that the only way to guarantee that the prosecutor seeking retribution for your loved one’s death is to hire a hired-gun prosecutrix — namely you.

Great work getting hired on your first case already, but remember that in the vengeance business, you’re only as good as your last retribution. If you don’t come down on the defendant in Wharton County like the fist of God and you don’t have anything else in the hopper, you could turn from hired gun to has-been in a twinkling.

So concentrate on building up a portfolio of cases now. You don’t want to get in the habit of bringin’ righteous retaliation down on evildoers for free, but now would be a good time to offer discounts on a couple of prosecutions of your choice just to make sure that you have something to do when the Wharton County case is over — especially in case the defense lawyers save their clients’ life.

I’m sure that your business plan takes into account the fact that only the wealthy or politically powerful will be able to either afford to bring you onto a case or convince their county commissioners to do so in order to avenge their losses. As it should be — what kind of country would this be if the wealthy and powerful couldn’t get better justice than the poor and voiceless?
I hope this helps and, as always, when you have legal marketing questions, ask the guru.

Is Only Kelly Siegler Man Enough to Tell the Truth?

Given that Americans’ second most common justification for the death penalty’s fairness is its provision of “satisfaction and closure” to the victim’s loved ones, it’s astounding to me that Kelly Siegler (“Prosecutor-for-Hire”, according to her tagline) admits in a blog post that there’s no such thing as closure (H/T AHCL). A successful death penalty prosecutor concedes that, where closure is concerned, the emperor has no clothes: it’s astounding not because of the novelty of the idea, for it isn’t novel — anyone not steeped in overwrought victimology can intuit that there can be no “closure” for the death of a child — but because it weakens the justification for a penalty of which the prosecutor is unabashedly in favor.

Lindsay Beyerstein writes in Majikthise of calls for closure masking retributivism:

Medicalization sidesteps questions of justice. According to old fashioned retributivism, victims are entitled to see their loved ones avenged. This concept of entitlement is rooted in justice, not benificence. Retributivists say that victims have a right to see offenders punished fairly, not to whatever punishment makes them feel the best. Once we start talking about providing closure for survivors, we ellide the questions of justice. Closure is supposed to be something that survivors need for their mental health. Closure is about what makes someone feel better, not about what is just. By assigning such overwhelming importance to the nebulous idea of closure, we are outsourcing retributivism. We are saying that survivors need to exact retribution in order to heal, perhaps because they regard a particular punishment as the only acceptable outcome. Appeals to closure are an excuse to ignore the question of whether we think what they want is just.

The argument that the death penalty heals survivors — that retribution is indicated (in a medical sense) to provide closure — has no more legs. With “closure” removed from the death penalty equation, what’s left? The usual suspects: deterrence (general and specific); incapacitation; and, of course, good ol’ naked retribution, retribution for its own sake, an eye for an eye.

The Hired-Gun Prosecutor

Kelly Siegler, having left the Harris County DA’s Office, will be working as a special prosecutor on a capital murder case in Wharton County.

My admittedly cursory legal research on the question hasn’t revealed legal authority for anyone other than an assistant attorney general to assist in the prosecution of criminal cases, unless the district attorney is unable to perform his duties.

I suppose the supporting theory would be that the elected DA can hire whomever he wants to prosecute criminal cases, on whatever terms they agree to. So if Wharton County D.A. Josh McCown feels that he is outclassed by the defense team of Houston criminal-defense lawyer (and former HCCLA president) Stanley Schneider and Richmond criminal-defense lawyer Lee Cox, he can hire Kelly Siegler just to try the case on which they oppose him.

I don’t think this is really a “special prosecutor” position — my reading of the law is that only a judge can appoint a special prosecutor, and only when the district attorney is unable to act — but it raises an interesting question about prosecution in the 21st century:

Could Kelly Siegler make a business of traveling from county to county prosecuting alleged evildoers?

Being a criminal-defense lawyer is in part being a businessman; I’m looking at this question not in terms of ethics or law, but only of business: could Kelly create a viable business plan based on private provision of prosecutorial services?

I anticipate two likely hurdles that will have to be overcome: ego and money.

The ego that will have to be overcome is not Kelly’s, but that of the prosecutor in each case in which Kelly A would hope to be employed. District attorneys are not generally known for their humility. Indeed, humility would make it difficult for them to function. Most Texas prosecutors probably think that they could do as good a job prosecuting cases as Kelly Siegler. By all accounts, most of them would probably be wrong. It is unlikely, however, that they could easily be convinced of this. So they would have to be persuaded that having Kelly prosecute a case on their behalf was somehow in their best interest.

The money hurdle would arise only if Kelly wanted to get paid for her work. Married to a successful physician, Kelly might not be interested in this. If she doesn’t, the needlessness of paying her may assuage the egos of the prosecutors whom she would be supplanting, overcoming both hurdles at once — they can persuade both their voters and themselves that hiring Kelly to try a difficult case is a wise fiscal decision.

Even if Kelly needs to get paid to prosecute, there might be a way for her to find work: patronage.

If a private citizen or group of private citizens found it important enough for a person to be well and thoroughly prosecuted, they might decide to hire Kelly to do the job. For example, the wealthy family of a murder victim might hire Kelly to seek vengeance on their behalf (except that she would be asking the jury for it on behalf of “the State”) or police officers might take up a collection to hire tally to prosecute the person whom they believed to have killed one of their own.

With private backing, Kelly might overcome a small-county prosecutor’s ego by explaining how, with her experienced help on that one big case, he can spend his time on his other cases; the DA can present the decision to his constituents not as an admission that he’s not up to the job, but as a way to save them money.

Only the small details remain:

How to get the business? Word of mouth and the internet, of course. Put up a website and the press will do all of your advertising for you. Or cherry-pick your cases, finding newspaper accounts of crimes for which someone might be both able to and inclined to hire you, and sending business cards, Paladin style, to the likely customers.

How much to charge? Whatever the market will bear. Remember that this is a luxury product, not a necessity. How much is vengeance worth?

What if I lose? When you’re selling vengeance, you’d better deliver. You’re only as good as your last verdict, and if that last verdict had the accused smiling on the steps of the courthouse, then you’re out of the vengeance business. For the hired-gun prosecutor, losing is not an option.

The idea of Kelly Siegler riding around Texas on a pale horse is an entertaining one. I’ve even thought of a slogan for her:

I get paid to make people afraid.

Lykos Wins, in Case You Were Wondering

Pat Lykos, clearly the less-qualified candidate for Harris County District Attorney, has beaten Kelly Siegler, the champion of the Office’s old guard, in the Republican primary. And so the Holmes-Rosenthal era ends: not with a bang but with a whimper.

We defense lawyers have reached no consensus on whether this will improve our lives or our clients. But Harris County’s Assistant District Attorneys feel that this bodes ill for their futures, which seemed secure as recently as 15 weeks ago. So there will be heavy drinking among the prosecutors tonight, and hangovers in the morning. The mood, I’m sure, is somber. But do not despair: the Bradford campaign ( is the first hit when you search Google for “Clarence Bradford district attorney”; doesn’t Bradford know about the web?) will be looking for volunteers.

Failing that, you’ll all be welcomed as members of the Harris County Criminal Lawyers’ Association.

70 “Predator” Probations

I’m glad the Harris County DA’s race is almost over. Partisan politics and offices in the criminal justice really shouldn’t mix. In this election, both sides have tried to deceive the public.

Over at the Elect Kelly Siegler Kelly Blog you can read about Pat Lykos’s deceptions; here’s one from Siegler’s campaign.

Kelly Siegler’s campaign literature says that Pat Lykos placed 70 “child sex predators” on deferred adjudication probation.

There’s no indication of what they mean by a “child sex predator” (nineteen-year-olds with fifteen-year-old girlfriends?) but that’s not the deception. That’s just an effort to make the voters afraid.

The deception is this: in order for a judge to put a person on deferred adjudication probation, the State of Texas must approve the accused’s jury waiver. If the government doesn’t agree to waive a jury trial, deferred is off the table. In every one of those 70 cases, the government agreed to let Judge Lykos set the punishment, to include deferred adjudication.

So we know that in those 70 “child sex predator” cases the Harris County DA’s Office didn’t strenuously object to deferred adjudication.

Often the government either tacitly or explicitly agrees to an accused being placed on deferred adjudication probation. We can’t know (because the Kelly Siegler campaign isn’t telling us) how many of those 70 “predator” cases involved an express agreement by the DA’s office. I would bet that the number is not zero.

Moreover, from the limited information the Kelly Siegler campaign gives us, it appears that the DA’s Office made the right call in either agreeing to deferred adjudication or approving jury waivers in those 70 cases. One way of telling retrospectively whether deferred adjudication was the right resolution of a case is to look at whether the defendant reoffended while on probation or later. Again, the Kelly Siegler campaign isn’t sharing names with us, but you can be sure that they have reviewed each “predator’s” criminal history since the deferred adjudication. Since the Kelly Siegler campaign does not report that any of these 70 people reoffended while on deferred adjudication probation or even afterwards, it appears that both Pat Lykos and the DA’s office, by that measure at least, didn’t screw up by putting these 70 people on probation.

Why does the Kelly Siegler campaign make a point of these 70 deferred adjudication probations for “predators”? Because make people afraid works with voters as well as juries.

The Harris County DA needs to be like Elliot Ness: untouchable. The people of the county should be able to depend on the DA to tell them the truth, and not to try to deceive them. In this campaign both Pat Lykos and Kelly Siegler have let the people down.

More Truth About Fear

When I pointed yesterday to the fact that Kelly Siegler’s advice to other prosecutors to “make people afraid” it was intended to be a Sunday-afternoon placeholder until I had time to deal with Kelly’s admonishment in more depth.

Judge Caprice Cosper says that there are people whom we punish because we’re mad at them, and people whom we punish because we’re afraid of them. Make people afraid isn’t about empowering them to act on their fear. It’s not “play on people’s fears” but “make people afraid.” Manipulate them, in other words, by causing them to feel fear that they wouldn’t otherwise feel.

I’ve written before about The Power of Fear (how governments, through their prosecutors, use fear to increase their power), The Opposite of Fear (how the People, through their defense lawyers, have to use something other than fear to counter the government’s use of fear and thereby preserve their power), Spreading Fear or Safety (how governments maximize power by trying to convince us that the government is doing all it can to keep us safe, but that we aren’t entirely safe), and The Abandonment of American Ideals (about how our fear is turning America into something else). So the point of yesterday’s post was not that I was surprised that prosecutors use fear to get juries to do what they want.

Nor was the point that Kelly Siegler is bad for manipulating jurors with fear. Manipulating people with fear is what governments do, and manipulating jurors with fear is what prosecutors do. The entire criminal justice system is based on fear. People aren’t going to convict a person, give him a criminal record for life, or put him in prison, much less sentence him to death, motivated by anything else. Make people afraid. If Pat Lykos expects to do the job of Harris County District Attorney, she’d better make that a part of her being.

I’ve always viewed prosecutors as people who are themselves motivated by fear: prosecutor, scared of the world, comes into courtroom and shares his fear with twelve jurors. Fear to prosecutors is like water to fish. One reason Kelly’s injunction got my attention is because I’ve never heard the fish talking about the water before. Maybe they do — maybe most prosecutors recognize that juries convict and sentence because of fear, and that by making people afraid (or more afraid) they increase their chances of improving their stats. Maybe when ordinary prosecutors get together they talk frankly about how best to make jurors afraid. Make people afraid. Maybe it goes without saying.

But if it went without saying, why would Kelly have said it?

Maybe Kelly has knowledge about how to motivate jurors — make them afraid — that other prosecutors don’t share, or at least can’t articulate. If so, she should be commended for her insight. It wouldn’t surprise me if that insight were one of the things that make Kelly a particularly effective prosecutor (where effectiveness is measured by win/loss ratios and length of sentences).

All trial lawyers are deliberate or accidental students of human nature. Some (by no means most) defense lawyers purposefully study the why of advocacy as well as the how, traveling far afield from the explicit study of trial lawyering to learn or figure out what makes people do what they do, and thereby become better trial lawyers. I hadn’t given much thought to whether some prosecutors do the same; I suppose there’s no reason that they shouldn’t.

What’s really important about make people afraid, though, is not what it reveals to us defense lawyers about the working of the prosecutorial mind.

What matters is that people — jurors — know about it. More on that tomorrow.

Mean, True, or Both?

Anonymous blogger AHCL writes a critique of my mood:

He’s darker. More angry. More morose.

. . . .

Where he starts getting mean is in the comments.

  • he argues that Kelly Siegler “bought” Steven Hotze’s support.
  • he states he thinks its “fair” for Kelly to pay for Chuck’s sins (obviously not thinking that “mere presence” applies when it comes to politics).
  • he notes that posters on his website are very savvy, except for those that come to him from this website, citing them as being “a bit dim”. (Now, granted, he and Anon C got into a nasty little war of words during the comments, so I can understand him being angry about that).
  • and he insinuates that the prosecutors support Kelly solely based on fear of losing their jobs.

Sometimes it’s hard not to bruise people’s feelings, especially when we’re talking about something of desperate importance to them. I do try not to be mean, though.

The Hotze Endorsement

I wrote:

I hated to see Kelly buying Hotze’s support. That shifted me away from her a bit — ideally, Harris County elections will not be decided by Dr. Hotze’s bought endorsement anymore. I hope that we find in November that that’s a thing of the past.

Steven Hotze is widely reputed to operate this way: he solicits substantial contributions to his PACs, and candidates who don’t make the contributions don’t get his endorsement (which can be tremendously valuable in a low-turnout election). AHCL is familiar with how it works too; she isn’t claiming that Kelly didn’t buy Hotze’s support, but just that it is mean that I should argue that she did — as though there’s nothing wrong with buying an endorsement because everybody does it. But I know a couple of judicial candidates who refused to be shaken down, and didn’t get Hotze’s support; one of them is a judge now despite.

Hotze was investigated by the Rosenthal DA’s Office for DWI. In an extraordinary procedure, the Office used a grand jury to investigate after Hotze was arrested for DWI, rather than filing charges and letting matters sort themselves out in the trial court. I wouldn’t mind if this procedure were followed with all of my clients accused of DWI; we’d get two bites at the apple — a chance to get rid of the case in grand jury and then, failing that, the usual chance of winning in the trial court.

Hotze is also a leader in the Christian Reconstructionist movement.

Reconstructionism is a theology that arose out of conservative Presbyterianism (Reformed and Orthodox), which proposes that contemporary application of the laws of Old Testament Israel, or “Biblical Law,” is the basis for reconstructing society toward the Kingdom of God on earth.

Reconstructionism argues that the Bible is to be the governing text for all areas of life–such as government, education, law, and the arts, not merely “social” or “moral” issues like pornography, homosexuality, and abortion. Reconstructionists have formulated a “Biblical world view” and “Biblical principles” by which to examine contemporary matters. Reconstructionist theologian David Chilton succinctly describes this view: “The Christian goal for the world is the universal development of Biblical theocratic republics, in which every area of life is redeemed and placed under the Lordship of Jesus Christ and the rule of God’s law.”

More broadly, Reconstructionists believe that there are three main areas of governance: family government, church government, and civil government. Under God’s covenant, the nuclear family is the basic unit. The husband is the head of the family, and wife and children are “in submission” to him. In turn, the husband “submits” to Jesus and to God’s laws as detailed in the Old Testament. The church has its own ecclesiastical structure and governance. Civil government exists to implement God’s laws. All three institutions are under Biblical Law, the implementation of which is called “theonomy.”

So if Kelly didn’t buy Hotze’s endorsement, then she is the choice of a man who thinks that America should be a Christian theocracy in which women submit to men and adulteresses are stoned. As well as deeply ironic, that is more worrisome (especially during this Blog Against Theocracy weekend) than if the endorsement had been cynically traded for cash.

The Fairness of Kelly’s Ineluctable Link to Chuck Rosenthal

I wrote, “I think it’s fair for Kelly to pay as a candidate for the sins that she would like the voters to attribute only to Chuck.” Like Kelly, AHCL calls the problems with the DA’s Office “Chuck’s sins.” I think it’s fair to call them “the Office’s sins” and to hold the Office’s management politically responsible for them.

No, “mere presence” does not apply when it comes to politics. Even if it did, Kelly wasn’t “merely present.” Kelly was management. Either she was not aware of any of the problems with the office, or she was aware and didn’t do anything. Neither reflects well on her as a potential DA. The Harris County DA needs to be like Elliot Ness. Untouchable.

The Dimness of AHCL’s Commenters

I wrote: “my readers are generally fairly savvy (except for those coming over here from AHCL’s blog; some of them seem a bit dim).”

I can see AHCL’s point in calling that, at least, mean. It violates Thumper’s mother’s rule, and probably didn’t need saying. I apologize to those of AHCL’s readers who think that they are the ones who seem a bit dim.

Why Prosecutors Support Kelly

I wrote, “Every prosecutor (even the Democratic one) supports Kelly, of course; I probably would too if I thought my job might depend on it.”

That is a statement of the obvious: Kelly’s heavy prosecutorial support does not reflect on Kelly’s suitability for the job. The prosecutors — especially the chiefs — have their jobs at stake here; they would be supporting whatever candidate they thought would minimize their chances of seeking employment come January.

This raises an interesting issue: unstated bias. AHCL has never come out and said whether she is a defense lawyer or a prosecutor. I think I can read the answer to that question clearly between her lines, but she shouldn’t be pretending that she might be one thing when she is in fact another. Not, at least, if what she is gives her a reason to wish to see Kelly elected beyond Kelly’s qualification for the office.

Three Opinions

Kelly Siegler is behind 4-1 in the informal poll I’ve conducted down at the courthouse this week of people whose continued employment doesn’t depend on Kelly Siegler’s election.

• A former Harris County prosecutor (now a prosecutor elsewhere) who served in Judge Lykos’s court would vote for Pat Lykos over Kelly Siegler, whom he describes as “nasty.”

• A young defense lawyer is planning a fundraiser for Pat Lykos.

• A longtime Harris County district court judge would vote for Kelly Siegler over Pat Lykos, whom she describes as “cruel.” A staunch Republican, this judge would vote for C.O. Bradford, even, over Pat Lykos.

• A longtime defense lawyer, who has a “Jeffersonian view of democracy” is pulling for a Democratic victory and general bloodletting down at the courthouse (to refresh the tree of liberty), but would choose Pat Lykos over Kelly Siegler.

• Another longtime defense lawyer, generally held in high esteem, is encouraging anyone who didn’t vote in the Democratic primary to vote for Pat Lykos in the runoff.

Totally unscientific and worth what you paid for it, except that it debunks the myth fostered over at Life that Pat Lykos has no supporters who know their way around the courthouse.