By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Like all cold and flu medicine, “reform” at the governmental level sometimes gags those resistant to changing practices and policies away from the bad toward the good. Harris County District Attorney Pat Lykos was elected on the theme that she would introduce “reform” to the district attorney’s office and put an end to the often illegal and unethical practices of the “convict at any cost” which hallmarked the former administrations of Charles “Chuck” Rosenthal and his predecessor Johnny Holmes. The trial of a criminal case is controlled by three entities: the judge, the prosecutor, and the defense counsel. To be effective and responsible, each entity must do their job in an honest, decent, and fair way. That was seldom the case under Rosenthal and Holmes.

Most often when there is a breakdown in the adversarial process of a criminal trial it is caused by “rogue” prosecutors engaging in underhanded or unethical conduct. We don’t respect or tolerate these kinds of prosecutors. We have made that abundantly clear with recent posts. The “duty of the prosecutor” is not only to convict but to seek justice as well. The latter responsibility is where too many prosecutors lose their way in our adversarial system of justice. Just as the police too often develop “tunnel vision” (an unreasonable focus on one suspect at the exclusion of all others) in criminal investigations, prosecutors develop their own tunnel vision focused on individual success and professional acclaim fueled by the “convict at any costs” mindset.

The Houston Chronicle ran a story (Nov. 17, 2010) titled “The Two Sides of DA Pat Lykos” written by Brian Rogers.  Citing friends and foes, the newspaper attempted to present two conflicting portraits of the reform-minded district attorney: one as “a seasoned administrator who rides herd over innovative projects that garner respect from other officials” and the other as “a woman who continues to watch talented lawyers walk out the door, her staff demoralized because, they say, she cares more about public perception than prosecutors.”

Let us first say that we do not care as much for “anonymous sources” as journalists do. We have seen too many innocent people subjected to illegal and baseless searches and seizures triggered by “anonymous sources” which later lead police to “confidential informants.” If a person is willing to speak to a journalist about his/her gripes or complaints in the work place, they should have the courage to be identified. It has been our experience that people who hide behind anonymity are too often “loose with the facts” and are generally motivated by some personal agenda to get even with the people they are complaining about.

The Chronicle cited an array of  Lykos’ anonymous “critics” as saying the changes she has made in the district attorney’s office, like limiting prosecutorial discretion, have hurt “morale” among staff. The newspaper pointed out that “prosecutors under Rosenthal had much wider latitude on decisions, especially on plea bargains. Shaving years off sentences, lowering felonies to misdemeanor charges, trading jail time for drug treatment time or refusing to budge on a case are daily decisions that used to be entrusted to line prosecutors and their immediate supervisors.”

Citing one of those anonymous former prosecutors (who did not “want to be identified for this story for fear of damaging their careers”), the Chronicle quoted the prosecutor as saying: “It’s a culture of fear, not a culture of trust [in the district attorney’s office].”

That sounds to us like one of those former Rosenthal prosecutors longing for the “good ole” days when they could fabricate evidence, knowingly use perjured testimony, and conceal favorable evidence from defendants—prosecutors like those who were responsible for wrongfully convicting at least six Harris County defendants and who played a major role in virtually every Houston Police Department “crime lab” scandal that has repeatedly embarrassed our local criminal justice system since 2002. We firmly believe that prosecutors who habitually “push the ethical envelope” should work in a “culture of fear;” that their lawless and unethical behavior will not be tolerated, under any circumstances, by their boss, the District Attorney.

And that’s why we wholeheartedly agree with DA Lykos who informed the Chronicle: “Justice should not be at the whim of any particular individual, so you have parameters within which to operate.”

In 2008 and 2009 the John T. Floyd Law Firm won three acquittals in a case in which the defendant had been charged with seven counts of sexual assault against a child. The Rosenthal-era prosecutor in that case never should have put the defendant on trial for the first charge, much less the remaining six. The jury quickly acquitted the defendant on that first charge which was more than eight years old and had absolutely no viable credibility to it. In fact, one juror sent “comments” to the Chronicle saying the prosecutor should have been charged with a crime for bringing the case to court. Still, it took two other acquittals on charges even more flimsy than the first before Lykos’ new oversight policies said “enough is enough.”

While those acquittals were great for the John T. Floyd Law Firm, our client lost his job, career, life savings, professional colleagues, and standing in the community. Why?  Runaway “prosecutorial discretion.” The prosecutor that pursued and hounded our client seemed possessed with an unbridled zeal to be the most prolific “sex offender” prosecutor in the county. And after losing the first case in such an embarrassing and humiliating fashion, “discretion” to prosecute the second and third cases was nothing more than unvarnished prosecutorial revenge; to “get even” with us for having beaten the first case.

That prosecutorial mentality flew like a kite under Chuck Rosenthal and Johnny Holmes, but hopefully it won’t even get airborne under the Lykos administration. The Chronicle laments that Lykos, “a longtime Republican,” forced “seven prosecutors and five investigators” to quit who had received honorable recognition from former Interim District Attorney Ken Magidson after he took over the DA’s office when Rosenthal was forced out for his political shenanigans. These dismissals were followed last year by the resignation of a 25-year veteran prosecutor named Donna Goode who told the newspaper she and other prosecutors were “begging for communication from the administration.”

Lykos’ critics see a pattern: the irreversible loss of what they call “talented veterans;” prosecutors who make a career out of government service because survival on the defense side of the legal profession is a bit “too competitive” for them. These so-called “talented” former “veteran” prosecutors have become a small legion of “anonymous” Lykos critics who have taken to the Internet and blogosphere to express their ongoing dissatisfaction with the workings of the District Attorney’s Office.

That’s their right and business. We have no dog in that fight. But we do have a dog in the fight against anonymous sources. If these former prosecutors are afraid that publicly speaking what they believe is the “truth” will somehow “damage” their careers, then whatever career they have is built on shifting sand. We certainly don’t know what’s going on in Lykos’ office. We’re not on the “inside.” We have never been prosecutors and have no intention of ever becoming prosecutors. What we do know, however, is that many of these so-called “veteran” prosecutors built their “talented” prosecutorial skills under two of the most corrupt and unethical administrations to ever occupy the Harris County District Attorney’s Office. We don’t know how you can put that kind of “talent” on a resume and with a straight face call it a “career.”

As for Lykos, she dismisses her critics as “myopic.” The DA told the Chronicle: “We’re the country’s No. 1 law enforcement agency; of course it’s our job to prevent crime. We’re here to protect, and besides that, if we do reduce crime, that does eventually, reduce our workload.”

We would suggest that the “anonymous” former prosecutors get on down the road with life. They had their moment in the “prosecutorial” sun—and they blew it considerably, wreaking one political embarrassment and scandal after another on our local criminal justice system. Neither the justice system or the general public at large can possibly benefit from their anonymous advice and sour-grape dissatisfaction. Whether or not Pat Lykos is a success or failure as district attorney is a matter for the voters of Harris County to decide. Voters are capable of examining the district attorney’s achievements and failings, and assessing whether she should remain in that position. Like everyone else, we will cast our vote when the time comes.  In the meantime, defense lawyers should keep an eye on the District Attorney’s Office to ensure that Lycos’ campaign promises and real reform continue.  We will not be bamboozled by the rhetoric and lofty words made at press conferences.

We might take Lykos’ critics more seriously if they ever decide to put a name and face to their criticism. Until then, we will continue to dismiss their criticism as former employee resentment making unfounded allegations as baseless as many of the cases they brought to trial when they were so-called “talented” prosecutors. We guess old habits die hard.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair