While there are a good number of Harris County prosecutors who don’t care for Houston criminal defense lawyer Mark Bennett’s calling them out when they deserve to be called out, at least one thought he was the right lawyer to see an internal email. Mark knew exactly what to do with it, and immediately post it on his blawg:
We are now six weeks into the new year and I wanted to announce some Trial Competitions.Vehicular Crimes Section Award
The first ADA to try 10 DWI jury trials in 2011 will win this award. The prize….you will get to sit second chair on an Intoxication Manslaughter or Felony Murder case with a prosecutor in the Vehicular Crimes Section. You will be involved in trial preparation, take witnesses, and participate in the trial.Trial Dawg Award
The first ADA to try 12 jury trials in 2011 will win this award. The prize… you will get to sit second chair on a murder case with a felony chief level prosecutor from either the Trial Bureau or one of the specialized divisions, such as Major Offenders. The trial record does not matter, except you have to be above 50 %.Trial Court Award
If a court tries and completes THREE jury trials in a single week, the prosecutors in that court can comp. out by lunch time the following Friday. It is encouraged that the members of the court do something together….lunch, movie, bowling. Who will cover their court in their absence…keep reading. The court (that has a 2 and a 3) that does not try any cases the same week the winning court(s) tries three cases, will have to cover the duties for the winning court. If all courts , that have a 2 and a 3, try cases it will be up to Justin, Rachel, and I to cover. We have excluded five courts from this competition for equity purposes.The purpose of these competitions is to reward folks who go to trial and achieve justice. In addition, hopefully it will be fun for all. Those who have already tried multiple cases already this year have a head start on others. Let the friendly competition begin….
There’s nothing like some spirited competition amongst the righteous to boost morale and get those prosecutorial juices flowing. And really, shouldn’t it be fun? We hear all the time how happy employees are good employees, and what could make an assistant happier than playing pin the crime on someone?
For good measure, and maybe just in case the email found its way to Mark, it concluded with these warm and fuzzy words.
And it goes without saying, what we do is always about justice. Hopefully this will allow us to have some fun while we strive to achieve it…..
There’s only one problem with this bow to “justice.” It’s inconsistent with everything else in the email.
Perhaps the most critical element of the prosecutorial function is the exercise of discretion. This spans the decision to charge, and what to charge, to the decision to offer an appropriate plea or go to trial. The system expects and depends on prosecutors to exercise their discretion with no interest, no concern, no incentive, no benefit, other than to do justice.
Or win a prize! Woo hoo!
Consider what becomes of the defendant who is charged for the very first time, and against whom the evidence is overwhelming. Discretion suggests that he be offered a plea that would both deter him from committing another offense, but not one that will destroy his life or needlessly put him in prison. But if the prosecutor happens to need just one more trial, just one more conviction, for the win, this is the case to try.
And it’s easy enough to shrug it all off. After all, the prosecutor didn’t make the guy commit the crime. The prosecutor didn’t legislate the punishment that is clearly excessive in this case. The prosecutor isn’t at fault for merely failing to cut the guy a break. Since when does a criminal deserve a break?
Plus, he can win a prize! Woo hoo!
There will, no doubt, be prosecutors in Harris County whose conscience won’t allow them to put their winning a prize ahead of the appropriate exercise of discretion. There will be those who remember that these are flesh and blood people who live with the decision they make, whether to offer an appropriate plea or force the case to trial. They will think of their brothers and mothers, their cousins and nephews, before withholding a plea offer because they need a few more trials this week.
To win a prize! Woo hoo!
There will likely be reaction to Bennett’s having obtained this internal email and posting it on the internet for all to see, including this New York lawyer who has no say in how the fine prosecutors in Harris County boost the morale of their assistants and reward them for trying more cases than the next one. How dare Bennett reveal their secrets? Doesn’t Bennett realize that this is how all prosecution offices are run, with incentives to get assistants to work harder, do better, win more. And do justice?
The email reveals that there is no prize for the prosecutor who does the most or the best “justice.” Then again, there would be no way to tell who the winner is.
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I suppose that within the spirit of the competition there might be some very slight quantifiable incentive to withhold exculpatory evidence. As this would be in the interest of Justice, who really has a problem with this? I mean aside from CDL’s, police officers, police groupies, etc…?
On the other hand, if a Criminal Defense Association of New York, be it the state or the city, were to have a contest awarding a prize – such as a new Mercedes – to the CDL who won an acquittal for the most clients in a given time it would not be a stretch at all to believe that the CDL’s were, if not conspiring, then at least attempting to subvert Justice. At least from the perspective of a prosecutor, the police, the police groupies etc.. I’d imagine.
The snarky response would be that there’s no criminal defense association with the wherewithal to offer a new Mercedes. The more serious response is that CDLs have a duty to zealously defend, not to do justice, thus distinguishing their responsibility from that of prosecutors.
Given the cost of a jury trial it seems counterproductive for the state to be encouraging people to do lots of them so that they can go bowling on Fridays.
The whole idea is scary but that one just doesn’t seem thought out.
Idiot that I am, although I have always suspected that this type of thing goes on, I am still surprised every time I see actual proof of it.
I have no idea who John Jordan is or what his position is within the organization but if I were the District Attorney in Harris County the very first thing I would do this morning would be to ask for his resignation. I would call “Justin” and “Rachel” into my office and fire them too if they were involved. And then I would send out a directive to the entire office informing staff that this type of behavior will not be tolerated. Failing to take this action would provide proof of my own complicity. It would implicate me in having created a culture in which this type of behavior is encouraged. And if that were the case, the interest of “justice” would suggest that I resign myself. What about accountability?
It’s a testament to Bennett’s influence within Harris County that Mr. X sent the email to Bennett and not to the local paper.
Yes, it is. I would bet that it’s because Mr. X felt confident that Mark would demonstrate the fortitude of publicly revealing it, even though it might subject him to criticism or anger, and it won’t help Mark get clients, make money, improve his social media standing with baby lawyers who seek validation, make him a valued member of a happysphere tribe or fit into his aggressive marketing scheme.
Yeah. That too.
50 bucks says that, rather than being embarrassed or ashamed by such a ridiculous competition, the Harris County folks will attack Bennett for making this known.
That’s a given. No matter what, it will all be Bennett’s fault.
This smells like the tip of an iceberg. Brings to mind the Two-Ton Contest brought to light in the 1999 Chicago Tribune series on prosecutorial misconduct in the Cook County state’s attorney’s office. Another friendly competition. Do Harris County prosecutors have their names posted with color-coded stickers on a winners/losers chart?
Funny, it got me thinking of David Mamet’s play, Glengarry Glen Ross.
The objective of the e-mail to the ADAs was to make them aware of the contest for getting convictions, and quickly.
It would be quite disingenuous to assert that truly the contest was about securing justice, despite the phrasing in the e-mail.
That being said, as the duty of the prosecution is to win convictions it is the duty of their opponents, CDLs, to avoid convictions. It’s not about justice at all, as I recall reading within some of these CDL blogs and which people such as yourself present the agony of trying to arrive at a definition.
I’m certain that you recognized the sarcasm within my original comment – after all, you do invite sarcasm.
“Or win a prize! Woo hoo!”
Never did see that. Sometime if it’s on again I will. That is if I can ever get control of the clicker.
The sarcasm I got. It was the erroneous foundation that compelled correction.
This is horrifying. Just wow.
Hmmm. Bennett’s site appears to be down. I’m guessing that the Harris Co DA Lykos has contacted the DHS to have his domain seized for sharing state secrets.
A woman of few words. I like that.
If I use fewer words, there are fewer words you can use against me later.
I’m sorry that you’re feeling a bit paranoid.
What should Harris County residents do when they show up in response to a jury summons and it turns out to be a criminal case?
I hate to go all “Law Nerd” on you, but Article 2.01 of the Texas Code of Criminal Procedure states:
Art. 2.01. DUTIES OF DISTRICT ATTORNEYS.
“Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”
IMHO DA Lykos has forgotten that part about the duty “to see that justice is done” part.