What I did does not remotely approach the level of what I would consider an investigation. It was a cursory review of information that exists in the public domain. Any 14 year old with a smart-phone could access more information than I did. Ultimately, we learned more from Mark Bennett’s blog post than I discovered from my inquiry.

That’s Harris County District Attorney’s Office Chief Investigator Don McWilliams, explaining what he did to learn about the 185th District Court Grand Jurors investigating the DA’s Office in connection with the BAT van fiasco. (PDF)

I agree with McWIlliams and Lykos that what he did regarding Trisha Pollard, the grand jury forewoman, wasn’t an investigation. What I did wasn’t an investigation, and I found more than McWIlliams did about her.

But Ted Oberg, who has been harrying this story for Channel 13, suggests that McWilliams may have done a great deal more than I did:

According to sources, on Saturday, October 22, 2011 the DA’s chief investigator was called while off duty. He was told by the DA’s first assistant, Jim Leitner, to collect information on members of the grand jury themselves—specifically the foreperson, Trisha Pollard, and another member who shared a last name, but no relation with DWI defense attorney Mark Theissen.

What’s of interest here is not what McWilliams did, but whom he did it to. I knew that Trisha Pollard was the grand-jury forewoman because that information had been reported early in the media. How did McWilliams or Leitner know to check up on a grand juror with the last name Theissen (or, like the criminal-defense lawyer, Thiessen)? The list of grand-jury names is confidential, not available to people who are being investigated, unless the people being investigated happen to be prosecutors.

I doubt that Lykos’s primary opponent Mike Anderson and I will ever see eye-to-eye on much in the courthouse, but I’m with him when he says he wants the Texas Rangers to look at what the DA did. Investigation or no investigation, what the DA’s Office did was an abuse of its authority.

But wait. There’s more. Oberg reports:

Using the confidential list of grand jurors’ names, the DA’s chief investigator looked at Facebook, Google, the state bar and then accessed a county paid for, password-protected database called Accurint—which gave him a list of grand jurors’ addresses, jobs, relatives, bankruptcies, all sorts of information and connections.

I am familiar with Accurint: it’s an investigative tool. If I look someone up on Accurint, I’m investigating. The information is not “in the public domain.” To search for someone on Accurint you must certify the purpose for which you intend to use the information:

Without a permissible purpose, available information is extremely limited—less than a 14-year-old with a smartphone could find on the web.

Why does it matter? Well, here’s what Accurint says about permissible purposes (none of which clearly authorizes researching members of a grand jury that you suspect is politically motivated:

Federal law, in conjunction with your user agreement with LexisNexis®, requires you to have a permissible use in order to view personal information. The applicable laws governing these uses are the Drivers’ Privacy Protection Act (DPPA) and related state laws and the Gramm-Leach-Bliley Act (GLBA). If you do not have a permissible use, you will not be given access to the personal information.

In addition to complying with these privacy acts, you should understand that, under the Fair Credit Reporting Act (FCRA) (15 U.S.C. sec 1681), the data provided to you by using the LexisNexis® products may not be used as a factor in establishing a consumer’s eligibility for credit, insurance, employment or other purposes by that act.

There are criminal fines and civil liabilities for knowingly violating the provisions and restrictions of these acts.

People whose private information was accessed by McWilliams in violation of DPPA or GLBA (for example, if he falsely claimed a permitted use) might have a civil suit; I’ll bet that Accurint keeps a record of what purpose searchers declare.

Oberg reports, “The FBI tells us at this point it is not investigating, saying there is no evidence of a federal crime.” I wonder if they’ve given the GLBA and DPPA any thought yet.

It started with a couple of sentences on Houston criminal-defense firm Stradley Chernoff & Alford’s website:

The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.

Pretty innocuous, I’d say, and in a place where few people would have read it and fewer would have given it any thought.

But Harris County Sheriff Adrian Garcia’s in-house flack, Alan Bernstein, got a burr under his saddle and rattled off an indignant letter to “Legal Assistant” at the firm:

So I hope you will live up to your principles by deleting from said web site this inflammatory and highly dubious statement: “The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.”

I’ve got to admit, there are some crafty “weasel words” in there. It says that jail personnel in Harris County “seem to” take a perverse pleasure in making the jail visit as unpleasant as possible. But the damage of an unproven allegation has been done regardless.

He went on to ask for “specific evidence” of those allegations, and concluded:

Sheriff Adrian Garcia and staff strive to provide the public with a safe (for inmates, staff, visitors and others) environment that complies with and often surpasses all regulations and accreditation standards. No one guarantees a fun experience there, but we do take allegations seriously, unfounded or not, as should be obvious by this letter.

In the meantime I look forward to your responses.

“Seem to” in this case are not “weasel words”; “seem to” is hedging, to avoid the inevitable argument that Bernstein would otherwise be making: you couldn’t possibly know what gives jail personnel pleasure.

Harris County jail personnel engage in conduct that would lead a reasonable person to believe that they take a perverse pleasure in making jail visits as unpleasant as possible. Whether they in fact take such a pleasure may be known only to them and their psychiatrists, but if it acts like a sadist, it probably is one.

If you were the Harris County Sheriff and you took allegations of corrections misconduct seriously, you wouldn’t respond to allegations of abuse by having your PR guy write a letter to “Legal Assistant” exhorting him to “delet[e] from said web site this inflammatory and highly dubious statement”; instead, you would do so by having your internal-affairs division contact the lawyers and ask if there are specific inmates who would like to file complaints against jail personnel.  The fact of Bernstein’s letter puts the lie to Bernstein’s words.

Every criminal-defense lawyer hears stories from diverse clients about conduct—abuse and neglect—by jailers. These stories, from diverse clients with no connection to each other, are plausible and consistent. The anecdotal evidence that jailers take perverse pleasure in making their charges miserable is overwhelming.

Often when we hear these stories, it’s from the middle-class folks who never imagined that they would wind up in jail, and so hadn’t given much thought to it. (Stradley Chernoff & Alford’s web page on which Bernstein chose to shine his Streisandian spotlight was for the firm’s potential DWI clients, who are generally affluent first offenders; the offending statement’s will ring true with their audience, which is good marketing for the firm.) Those who are more likely to land in jail have friends and family who have gone to jail, have heard the stories, are not surprised, and don’t bother reporting the abuse they witnessed in the Harris County Jail to their criminal-defense lawyers.

In his letter to the firm Bernstein offers, “If you have [specific evidence], please provide it to me and I will relay it to jail commanders for corrective action.”

What planet does Bernstein live on? The offer to relay evidence to supervisors is like an offer to whitewash abuse. The chain of command in a police department does not root out misconduct. That’s why internal-affairs divisions exist.

These clients who are surprised at abuse and neglect by jailers ask whether they should report it. “Not worth the trouble” is usually the answer. We take it as a given that abuse occurs, that jailers—like cops everywhere—will lie and tamper with evidence to cover for each other, and that the Sheriff’s Office isn’t really interested in stopping abuse.

One advantage that the jailers have over cops on the street is that they can be pretty sure that inmates don’t have video cameras. Our clients’ observations, which would be the “specific evidence” that Bernstein requests, aren’t worth a cup of warm spit when wrongdoers and their buddies in blue (or in white) will cover for each other and jail commanders will bend over backwards to protect them.

I submit that Bernstein knows this full well, and that his offer to relay specific evidence to jail commanders for corrective action is duplicitous. (I have not entirely discounted the possibility that Bernstein is deliberately sabotaging his employer by sending his letter to a law firm that he knows damn well is more likely to publish it than cave in. If that’s the only way that he can think of to bring attention to jail abuses, I’m happy to help.)

Steph Stradley asks, “doesn’t the Sheriff’s Department have better things to spend their money on than scouring the web to find unhappy words about them and send long, whiney letters?” I know it’s a rhetorical question, but I’ll answer it anyway. Sure it does: it could spend its P.R. money investigating conditions in its jails.

That Sheriff Garcia is more interested in trying to stifle criticism than in investigating abuse helps explain why abuse persists.

To begin with, Judge Blackburn did not order Fricosu to decrypt her hard drive.

Why not? The obvious answer: because the government didn’t ask him to.

What did the government ask him to do? It asked him to order Ms. Fricosu “to produce the unencrypted contents of the computer.”

(In fact, the government asked for a writ under the All Writs Act, 28 USC 1651, requiring Ms. Fricosu to produce the unencrypted contents. Judge Blackburn cited two cases in support of his authority to enter such an order: United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977), and In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) [actually 2011 WL 3423370]. Use of the All Writs Act to compel a defendant to cooperate with the government against himself appears to be novel.)

So Judge Blackburn ordered Fricosu to provide (in law, when someone is ordered to produce something, produce doesn’t mean create, but rather provide) the government with an unencrypted copy of the hard drive.

Here’s the problem: an unencrypted copy of the hard drive does not exist. Fricosu can’t produce the unencrypted drive because she doesn’t have an unencrypted drive.

“Aw c’mon now Mark,” I hear you say. “By ordering her to produce an unencrypted drive he’s ordering her—just like all the pundits say—to decrypt it.”

No. A writ is legal word-magic. Word-magic is powerful, but it has technical limits. The person on whom word-magic is cast doesn’t have to do what the sorcerer wants him to do; he has to do what the judge orders him to do. To be enforceable, an order has to be specific. If you order me to produce something that doesn’t exist, my failure to produce it can’t be punished.

Legal word-magic is like a wish to a djinn: if there are two ways to interpret it, you’re going to get the least helpful one. If you want your word-magic to be effective, you have to remove all wiggle room. If you want someone to decrypt a hard drive, order her to decrypt it.

So Fricosu, ordered to produce the unencrypted contents of the computer, could very well respond, “Can’t do it, Judge. Don’t have it.” Then Judge Blackburn, irritated (nobody likes dealing with a djinn), says, “Okay. Produce it by decrypting it in the government’s presence. Happy?”

In Boucher, the grand jury first subpoenaed a piece of paper containing the password (which presumably didn’t exist), and then changed its mind and asked that Boucher be ordered to “produce the contents of his encrypted hard drive in an unencrypted format by decrypting the drive before the grand jury.” (Mr. Boucher elected not to pursue an appeal.)

The fact that in Fricosu the government and Judge Blackburn elected not to couch the writ in terms of decrypting the hard drive is interesting and, I suspect, important. A question of framing? By phrasing the requested relief as a writ under the All Writs Act to produce the decrypted drive, rather than to decrypt the drive, does the government hope to make the fact that the decrypted drive does not currently exist disappear? To make it appear that the evidence already exists, to bring it more in line with the All Writs Act cases (though the problem of a writ directed to a defendant rather than a third party remains)? If you put it this way: assuming that the defendant has something, and that producing it will not incriminate him, can he be compelled to produce it?, the answer might be different than if you put it this way: can the defendant be compelled to create or recreate something that doesn’t exist and then produce it if producing it will not incriminate him?

What can the government can force you to create, and then use against you? Handwriting exemplar? Sure. Drawing of the crime scene? Most likely not. A bunch of computer files that no longer exist but that could easily be recreated by the defendant? A nice question, and one that I hope we’ll see addressed head-on in the near future.

“Blake Jamerson” (IP 75.148.128.34) writes in response to Andy Nolen: Total Fraud?:

Mr. Nolen is a wonderful attorney. Not only does he know the law but lives by the law. He helped my family and I with some valuable insight on my brother’s case. He returned all my calls and would call me if he was running late to court. I understand not every one person is alike but doesnt mean that one’s negative opinion is everyone’s opinion.

I would have published this one without a second thought, except that the events that prompted the post to which this person was responding included Andy Nolen posting false reviews (positive for himself, negative for other criminal-defense lawyers) on the internet. So to confirm its authenticity, I emailed the address that “Blake Jamerson” left, and got a “recipient not found” error from the server. I found no case in Harris County in which Nolen represented a person named Jamerson.

Is this another instance of Andy Nolen using sockpuppets to market himself?

I wrote a post about the suspect circumstances of the grand-jury investigation of the Lykos DA’s Office. Someone responded:

This is disgusting.
This case is nothing but a bunch of greedy power hungry lawyers all. From the Judges, to the Grand Jury, to the Prosecutors to the DA. Their isn’t a descent human in this whole affair.
Vindictive, self absorbed scum.

I hope everyone involved in this mess rots in hell!

I wish that “Richard” (IP 70.140.39.198), with such unambiguous and colorful opinions of the events in Live by the Hatchet, Die by the Hatchet, could have followed the rules and used his real name.

Here’s another one that I tried to confirm; it’s a perspective that we don’t get enough of in the American blawgosphere:

I dont know what you privileged Americans are complaining about. Your average lawyer starts practice at the age of 24, is it? Here in India I started work at Biglaw at 21 and was interning (summering) from 18. I would give anything for 3 extra years at law school. Work-life balance? Never heard of it, never seen it. Choice of practice area? Don’t have one. At least in the US if a guy wants to litigate with a big firm or maybe go for a tax practice, he can go for it. Here, you arrive and are shown your desk and told that you are now a Banking and Finance lawyer, whether you like it or not, your preference be damned.

I disagree with the assumption that everybody needs to sit at their desk for 15 hours everyday to become good at what they do. Everyone works in different ways. Some people can figure something out while taking time off or sleeping. Everyone has got their own work cycle. I do my best work in the morning. If my boss left me alone in the afternoon or if I could go back home for an hour and head bang, I would definitely perform better in the evening. The only people who are better off because of the 24 x 7, 365 days a year at your desk workstyle are the partners.

And then there are the corporate clients. Assholes. It is ok for them to take time off and do whatever the heck that they do after setting some stupid artificial deadline.

“Rathore” (IP 203.115.120.186), in response to I Wouldn’t Hire Your Kine. Rathore never responded to my email seeking confirmation.

On the Internet, everyone’s an expert. Here’s ”Delta” (IP 24.199.117.105), in response to Schadenfreude, Irony, and The Defense Function:

“Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe…”

I can’t say as I have any sympathy for this alleged “sense of retribution”. For example, I don’t think that I’ve ever in my life been inclined to “punish” an inanimate object in this way. Sure, from a young age I would be bewildered and enraged at people who blithely and purposely harm others (as per anecdotes my dad tells), but I don’t at all see this drive to hurt things for unforeseen consequences.

I might propose that this asserted “sense of retribution” among people, prosecutors, and philosophers is culturally dependent, e.g., in Texas.

If Delta really didn’t go through Piaget’s preconceptual stage, in which a child attributes living characteristics to inanimate objects, she’s got problems.

Delta’s sense that retribution is not an innate human sense does not reflect human psychological reality. The sense of retribution exists, not just in Texans but in people across cultures and around the world. It makes good evolutionary sense (as does the capacity to murder, and the tendency to mistrust people different than us).

While it may be comforting to pretend that we contain no darkness, it’s a dangerous lie. It’s dangerous for us to lie to ourselves because if we pretend we don’t have the darkness, the darkness will control us. And, for trial lawyers, if we pretend that our jurors don’t have the darkness, the darkness will control them.

A supporter of letter lawyers, ”Saleen Love” (IP 70.114.52.242), wrote in response to Texas Civil Liability for Barratry:

Ok, so according to the “new” civil law liability, attorneys can be sued for having their ads in the yellow pages then, right? A phone book is sent to potential client’s homes so it would constitute barratry to have your ad in a phone book that is sent to a potential client. Good luck suing a lawyer that sent you an ad meant to help you….you will lose badly. Find better ways to sue losers.

Aside from the fact that yellow pages are public media, not subject to the same solicitation rules as letters, all I can say is: show me a better way to sue losers, and I’ll sue them.

Finally, sometimes I get comment spam that, coincidentally, fits the post perfectly:

I think its definitely a step in the the right direction. Change is always welcomed!

That’s “Marsha Braiyn” (IP 197.156.130.15), in response to NM: TSA to Oversee Prom Searches.

In the last couple of weeks we learned that two more of the Rakofsky v. Internet defendants had settled with Rakofsky—not with money, apparently, but by abasing themselves, their codefendants, and the First Amendment.

LisaLori Palmieri, who on 6 April 2011 wrote a dreadful piece of blatant marketing dreck (archive.org, via comments here) about Rakofsky's failure in the Deaner case…

It seems that neither Rakofsky’s law degree nor common sense played a part in his preparation and delivery for this case. This is a perfect example of why choosing an experienced and legitimate Tampa criminal defense attorney [link to her main site] is very important (one that is Board Certified is even better).

…and who in May 2011 (after Joseph Rakofsky filed his lawsuit against Palmieri and seventy-three other defendants) used the suit as an excuse for another marketing foray (archive.org, again via Greenfield's commenters)…

You don’t want to find yourself in a situation of having to worry about the competence of your Tampa criminal defense lawyer while dealing with very serious criminal charges. In the Rakofsky case, his incompetence was overt and obvious. What if it hadn’t been?

…on 1 July 2011 wrote another post, which might have been written by Rakofsky himself:

Last month, I posted about New Jersey lawyer, Joseph Rakofsky regarding his representation of a criminal client named Dontrell Deaner in a murder trial in Washington, DC after The Washington Post’s article.

. . . . .

Mr. Rakofsky has chosen to speak in court rather than commenting on various blog posts. Those who have formed conclusions one way or another about Rakofsky have taken the bloggers’ bait, alas, it would seem such people cared for the salacious headline rather than to paint a complete picture. I am responsible for my blog post and I was wrong not to be more comprehensive in my comments. Give Mr. Rakofsky the benefit of the doubt until you know the whole story, then make your own conclusion. Mr. Rakofsky believes he has been harmed by people who came to conclusions about him without benefit of having all the necessary information.

I agree with Ms. Palmieri: when the story first broke, we didn't have all of the necessary information.

For example, we didn't know that not only was Joseph Rakofsky's judgment so deficient that he took a murder case for his very first jury trial ever, but it also was so bad that when he was criticized he would double down by filing a frivolous lawsuit against his critics.

We didn't know that not only were Joseph Rakofsky's lawyering skills so bad that the presiding judge in the criminal trial called them "not up to par under any reasonable standard of competence under the Sixth Amendment," but they also are so poor that the presiding judge in the civil case would reject one of his pleadings as "incomprehensible."

We didn't know that not only was Joseph Rakofsky so dishonest that he asked an investigator in writing to "trick" a potential witness into telling a particular story, but he also was so dishonest that, on 13 October 2011, he would claim in an affidavit that he was in good standing with the New Jersey Bar when in fact he was ineligible to practice law (PDF—see pp. 5-6).

So while I agree with Ms. Pamieri that we didn't have all of the information in April 2011, the story would have been much worse if we did.

Palmieri probably looks at it differently—if she had known that Rakofsky was going to file a frivolous suit, she'd never have used his incompetence in her marketing. And Martha Sperry would probably agree.

Now, I understand why someone might want to settle a frivolous lawsuit—even one in which the court has no jurisdiction over them. You've got to balance the costs and the benefits. If continuing to fight would cost more than settling (taking into account psychic and moral as well as financial and temporal costs), by all means: settle. I think I might almost be able to imagine circumstances under which I might want to settle this particular frivolous lawsuit with Rakofsky. (The circumstances probably involve traumatic brain injury, but still.)

But the price that Palmieri and Sperry paid to get Rakofsky off their backs is higher than I would pay.

Sperry wrote:

Initially, the part that bothered me most was that the attorney, Joseph Rakofsky, was said to have committed his errors, was skewered across the blogosphere and in mainstream publications (I was one of those doing the skewering), filed his lawsuit claiming defamation, and then was subject to even more ridicule for availing himself of legal process. My sense is that Rakofsky engaged in the course of action dictated by our legal system. Won’t the court decide if there is merit to his points? Why should any complain if they are brought into court? Sure it causes aggravation, but if legal harm has been committed, it will be sussed out. So will innocence, or non-liability in the case of a civil matter. End of story.

This is the premise on which the happysphere is constructed: that there are systems in place for issuing corrections to unethical or incompetent lawyers, so we blawgers should let those systems do their job and keep our mouths shut. In other words, let the government take care of it.

It's very appealing to the unethical and incompetent, as well as to those who wish everyone would play nice.

It's also vacuous nonsense.

Rakofsky filed a frivolous lawsuit, in which he attacked the First Amendment, against lawyers. This is the popular conception of what lawyers do, but it is not "the course of action dictated by our legal system." The course of action dictated by our legal system in this case—as any competent lawyer who cared about Rakofsky would have advised him—was to suck it up and do better in the future.

That Rakofsky was subjected to even more ridicule for filing a frivolous suit against a bunch of trial lawyers—most of whom fight for a living—was not surprising.

The additional ridicule was not undeserved: filing suit was ill-advised, foolish, and unethical. The course of action dictated by our legal system now is to dismiss the case, take a year or two off, and start afresh. Joseph Rakofsky won't do this, though, and so the ridicule will continue. Everything Rakofsky has done in the case since filing suit has been ill-advised, foolish, unethical, or incompetent. Rakofsky is subjected to ridicule because he makes himself ridiculous.

Nor is the additional ridicule that Rakofsky gets every time he does something to perpetuate his ridiculous lawsuit inappropriate. The system generally doesn't work. The innocent get convicted, the reckless go without liability, unethical lawyers skate, and incompetents victimize more clients.

I suspect that those who subscribe to the happysphere theory of the blawgosphere—that we shouldn't speak ill of each other, or if we must speak ill that we shouldn't name names—share a reliance on government to take care of things in the real world as well.

Those who don't subscribe to that theory, I suspect, share my belief that government can't be relied upon: the system generally doesn't work. We also, I think, share a feeling of responsibility for making the world a better place. We don't make the world a better place by helping Apple sell more iPads; we do it by revealing who's scuttling in some of the darker corners of the profession; we do it by showing potential clients where the marketing lawyers live; and most of all we do it by making lawyers think they don't want to get caught in the dark corners themselves.

When Rakofsky's suit gets dismissed and the judge orders sanctions, Rakofsky will prove judgment-proof. It's not going to make the news; almost nobody will hear about it.There is little general-deterrent effect in sanctions that the plaintiff won't have to pay.

But other young lawyers should know how bad things can really be when you take on cases you're unprepared for, and then when you file frivolous lawsuits, and conduct like Rakofsky's should be scary to the lawyers who might be tempted to do the same. Because the costs to the public from behavior like Rakofsky's are much greater than the cost to Rakofsky ever will be.

Rakofsky did not, before making the mistake that brought him into the spotlight, learn the lessons that were there to learn. So he became part of a lesson. The more that lesson is reinforced, the better the chance that some other undereducated and inexperienced young man or woman will learn it before making such a mistake.

And every time Joseph Rakofsky opens his mouth, or files a paper, in his abomination of a lawsuit, the lesson is reinforced.

One:

Murray Newman reports that Pat Lykos has been subpoenaed to testify before the 185th Grand Jury.

My guess is that it’s unprecedented for a Texas grand jury to subpoena a sitting District Attorney.

Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the FIfth, it’s because she really means it.

Two:

Newman also brings us this email from Jim Leitner to the rest of the DA’s Office:

—–Original Message——
From: Leitner, Jim
To: All DA Employees
Subject: Grand Juries for the November Term 2011
Sent: Jan 5, 2012 9:43 AM

I have just been notified that the Judges have terminated all Grand Juries that were empanelled for the November Term 2011. That termination, from what I understand, has been backdated to December 31st. Therefore, do not take any cases in to any Grand Jury until the Judges have created and sworn in Grand Juries for the January Term 2012. Also, don’t issue any Grand Jury subpoenas until we have new Grand Juries empanelled.  I am meeting with Judge Hill today to make sure that we have the right information on this, but until you hear otherwise proceed as if there are no Grand Juries available  until the new term Grand Juries are sworn in. This does not affect the 185th or 232nd Grand Jury which have been extended for pending investigations.   
Jim

Murray rightly points out that, given the circumstances under which the grand juries were terminated (new statute as of 1 September that set terms for grand juries conflicting with existing grand juries’ terms and might have led to challenges to indictments handed down by previously constituted grand juries), The Harris County DA’s Office’s management should have planned ahead for this eventuality.

(Possible solutions: get the district courts to explicitly extend the terms of more grand juries, as they did with the two investigating DA misconduct; get the judges sometime between September and December to form new grand juries to begin 1 January; or warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012.)

Murray also sounds the alarm about “a danger to the public” resulting from the lacuna in grand-jury coverage:

When a person is arrested and incarcerated prior to trial, the District Attorney’s Office has 90 days to get that case indicted.  Otherwise, the person accused is entitled to a bond they can make.
That applies to all felony charges — from Aggravated Sexual Assault to Aggravated Robbery to Murder.  If the deadline goes past the 90 days, the end result is those folks will be getting back out on the street.

. . . . .

The trial prosecutors are about to find out that if they were banking on going to the Grand Jury this week or next, that they are not going to be able to do so.

And some really bad people are potentially about to be back on the streets.

Paul Kennedy says, “So freaking what?“

So the state’s ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What’s the problem, Murray?

We’re criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone’s freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.

I mostly agree with Kennedy. (Only “mostly” because even criminal-defense lawyers live in the community. Our job is to make it harder for the state to take away the client’s freedom; this doesn’t necessarily extend, in general principle, to making it harder for the state to take away people’s freedom. Even the best criminal-defense lawyer might reasonably think that some (non-client) people need to be locked up.)

But people charged with crimes in Harris County are routinely held illegally without bail, and routinely incarcerated in lieu of punitively high bail that has no objective basis in flight risk or danger to the community. The law often supports high bail, but common sense doesn’t. Most of those who might get out on bail because of the government’s delay don’t need to be in jail anyway.

One solution to the problem Murray sees would have been for Lykos to warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012. But here’s the thing: Lykos is not the smartest lawyer in the DA’s Office. (“Lateral Hire“ Lana Shadwick is. No, just kidding.) Prosecutors other than Pat Lykos knew last year that their might be problems with grand juries continuing after the end of December—they commented on it on Murray’s blog in talking about the 185th Grand Jury’s investigation.

So there were others in the DA’s Office who might have been in a better position than Lykos to predict that there would be some grand-jury problems at the beginning of 2012; like her, they didn’t do anything about it. A lot of balls got dropped.

I suspect that some of Murray’s shrillness might be a result of his political support for Pat Lykos’s opponent in the upcoming Republican primary. But while the failure to anticipate some hiccups in the grand-jury system is not a credit to Pat Lykos, it’s just as much a discredit to those line prosecutors who were “banking on” going to the grand jury this week.

Once I decide who the best candidate for Harris County District Attorney is, I’m not going to endorse him or her publicly, because I think my endorsement might have a negative effect.

By the same token, the best endorsement Mike Anderson has received so far, to me, is Harris County Republican Party Chairman Jared Woodfill’s public support for Pat Lykos.

“Fearless, relentless, and righteous.” That’s how the Chicago Sun-Times described my friend Dave Boyle in his obituary.

Dave got to Vietnam just in time for the Tet Offensive in 1968. He didn’t talk much about his time in Vietnam, but he always planned to go back some day and tour the country in peacetime by motorcycle.

Dave was what a Republican presidential candidate would sneeringly call a community organizer. He fought the system and he organized his neighbors to clean up Cicero, Illinois. For his trouble he got his garage firebombed. He got arrested eleven times.

Dave left Cicero and went to law school. He graduated from South Texas College of Law in 1996, and started practicing criminal-defense law in Houston. That’s when I met him and his wife, Nadine, who had worked at STCL while Dave was in law school.

Dave didn’t go to law school to make lots of money. He went to law school to help other people, and to save on his own legal fees. My ambition bemused Dave. We worked on cases together and bounced ideas off of each other from then until he returned to Cicero in 2000.

After Dave and Nadine went back to Cicero, I saw Dave only a couple of times. On a family trip to Chicago, we went out for ice cream with him and Nadine. We met with a potential client on a case in federal court in Illinois. We talked a few times on the phone, usually because I called with a puzzler. Dave was working hard, and mostly for free, starting a law clinic to help those who couldn’t afford a lawyer. Dave was always there with a willing ear, a word of advice, and a laugh (“ha! better you than me, brother”).

Dave died last February; I found out last week. Ordinarily I might say “Rest in Peace,” but Dave was a warrior, an Irishman and a Marine. He loved a good fight. If there’s an afterlife, Dave isn’t sitting on a cloud playing the harp. He’s seeking out injustice and corruption, and he’s fighting them.

Fight on, brother.

(More on Dave: NYT.com, Chicago Tribune.)

© 2011 Ruben Bollin @rubenbolling