Dec. 23, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense lawyer, former prosecutor-for-life and Fault Lines contributor, Murray Newman.
Q. You interned with the Brazos County District Attorney in college, and went straight to work for the Harris County District Attorney after law school. You wanted to be a prosecutor. Why? Was it that prosecutors were the good guys? Was it to put all the bad dudes away? Were you saving the world? Did you consider anything other than being a prosecutor? Were you a true believer?
A. I grew up across the street from the elected D.A. in our county and I remember that when he was prosecuting a capital murder case, the whole town was up in arms about it. I thought what he was doing was so important and so cool. I wanted to work on murder cases too. I was a morbid kid, I guess.
I wanted to be an FBI agent pretty much until I was in college. It just seemed bad ass to me. Ultimately that FBI agent idea gave way to being a prosecutor. I didn’t think I was going to save the world, but I thought I would always be fascinated by criminal law. I was right about that part. It’s probably fair to say I was a true believer back then.
Q. Many baby prosecutors suffer from a grossly mistaken self-image that the reason they are treated so well by judges, they win so regularly, is that they’re just the greatest lawyers ever. Was that you? Did you indulge the fantasy that it wasn’t because you were a prosecutor, but just a brilliant lawyer, that allowed you to enjoy great success in the courtroom?
A. In Houston, we start out trying misdemeanors for the first year or two, and the majority of those cases were DWIs. Those cases are normally such toss ups that you are happy if you have at least a .500 batting average. I think they sent us all to misdemeanor first to help break us of the notion that we were God’s gift to litigation. When you finally get called up to do felonies, those are generally better cases and the ego starts developing with all of your wins at that point.
Yeah, I was probably guilty of having an overinflated sense of worth as a trial lawyer. Getting the first “not guilty” on a felony case was a big kick in the crotch. In retrospect, of all the felony cases I took to trial, only three or four of them were really tough cases for the prosecution.
Q. One of the benefits of being a prosecutor is that you get to try cases. What was your first jury trial? Were you a master or a master of disaster? Looking back, did you do a great job or do you cringe now at how you tried the case?
A. I actually tried my first case when I had a student bar card and was working as an intern back home in Brazos County. It was just a simple DWI with a breath test refusal, but it was against the best defense attorney in town. He handed me my ass, but he told me that I did a good job, so I was proud.
I remember picking my first jury and basically announcing to the jury that I was scared shitless and pleading with them not to pick on me too bad. That’s kind of embarrassing in retrospect. Since it was in my hometown, I think I knew about ten people on the panel. Other than that, it wasn’t too bad.
Q. Prosecutors are given enormous discretion in how to deal with other people’s lives. Did you appreciate that as a young prosecutor? Did you feel you had sufficient life experience, sufficient understanding of other people, that you were qualified to make life-changing decisions? Did there come a time when you realized, “holy crap, if I’m wrong, I could destroy a human being’s life?” Was this power exercised with humility or hubris? Did there ever come a time when you realized the seriousness of your decisions, and started to question whether you might be wrong?
A. I think the thing that defense attorneys who were never prosecutors don’t get about the job is just how much prosecutors believe themselves to be the victim’s representative. We typically didn’t look at it from the perspective that we were representing the State or playing with other people’s lives. We looked at it like we were there to seek justice for the victim. That’s where so much of the self-righteousness that is associated with the prosecutorial profession comes from.
None of us thought we needed more life experience because we knew what was right and what was wrong. That’s all we needed to know. In retrospect, the lesson that we might have learned from more life experience would have been to actually consider the other side of the story: the defendant’s family, his circumstances in life, etc. Theoretically, prosecutors know that Defendants are people too, but we are too busy wielding the sword of justice to worry about that.
There was a moment toward the end of my career as a prosecutor, where I prosecuted a gang leader who couldn’t have been more than 19 years old. He had ordered two hits, including the murder of a 14-year-old kid and he was sentenced to life in prison. As I was leaving the courtroom, the guy’s little son was running around in the hallway, and he ran up and hugged onto my leg. I was a new father at the time, and I had just persuaded a judge to sentence this little kid’s dad to life. I felt like shit. There wasn’t any doubt that the kid’s dad was guilty, but the collateral damage weighed pretty heavily on me. It still does.
Q. Plea bargaining is widely criticized for pushing innocent people into pleas, particularly when insisting on innocence could mean awaiting trial in jail when copping out meant going home. Did you give this much thought when fashioning plea deals? Did you think more about the weakness of your case and possibility of losing than the possibility that a sweet offer could coerce an innocent person into pleading guilty?
A. I can’t really say that I gave it all that much thought, at least not that I recall. I tried to be a prosecutor that would listen to whatever a defense attorney was trying to tell me. I’m not saying that I believed everything they said when they asserted innocence, but I don’t recall any incidents where I was saying “screw you and your innocence claims, perhaps some more time in jail while you can’t make bond will change your mind.”
I wasn’t scared of dismissing a case where I thought somebody was innocent, but I wasn’t a pushover, either. All prosecutors will make lower recommendations on cases that they think are difficult to prove, but we usually felt comfortable in our own minds that the accused was factually guilty. If we weren’t certain of that, we were told that we shouldn’t be making an offer in the first place.
Q. In 2008, you left the Harris County District Attorney’s office, under less than desirable terms. Or as you call it, when the Sith Lords took over. You weren’t quite ready to go, but a shift in management with the election of Pat Lykos, whom you didn’t support, put your head on the chopping block. Were you surprised at how politicized your office turned out to be? Did you have any desire to go to the dark side, or as hard as it was to be turned out, did you really want to continue putting the bad guys away? Did your former adversaries accept you as one of them? Was there any payback for things you did as a prosecutor?
A. I probably would have been a lifelong prosecutor if Pat Lykos hadn’t handed me my walking papers. I loved the job and I loved the people I worked with. I knew that opposing Lykos during the election was an “all or nothing” proposition and that I would get fired if she won the election. She didn’t disappoint!
I do think that the Lykos era was a drastic departure from earlier administrations because everything she did was so publicized. Her administration invited media attention whenever they wanted an attaboy, and that is what led to the Office being more politicized. I think that has continued after Lykos got voted out and I don’t think it’s good for the criminal justice system. When you invite attention to all of your successes, you also open yourself up to more scrutiny of your failures. I think that leads to more reluctance to dismiss tough cases.
The irony is that Pat Lykos probably did me the biggest favor of my life. I think my life has a lot more balance and happiness in it now. I like being my own boss. I like helping people who need it. Every once in awhile I will read about some really upsetting case and think, “Man, I’d love to be the prosecutor on that one,” but generally I don’t miss the job description all that much.
The thing I miss the most is probably the camaraderie with the other prosecutors, but I still see most of them. The defense bar here could not have been more welcoming. People like Dan Cogdell, Mark Bennett, Pat McCann, Pete Justin, Tyler Flood, Charles Thompson and a laundry list of others went out of their way to help me figure out everything. I owe them all tremendously. I must not have been too big of an asshole as a prosecutor, because I never have had anyone come up to me and say, “Now that you’re on our side, let me tell you what a prick you were as a prosecutor . . .” At least, I hope that’s the case.
Q. You started a blog, Life at the Harris County Criminal Justice Center, around the time of Pat Lykos’ run for office. Why? What made you think it worthwhile to reveal the inside story of what was going on in your office? When you started the blog, you did so pseudonymously. Did you think no one would figure out who you were? How did that work out for you? In retrospect, was it a good idea or a bad idea?
A. I started the blog in 2008 when the D.A.’s Office was going through a huge scandal over some racist e-mails that our boss had sent. I remember picking a jury and we had to address the issue of what the venire panel thought of our office. It wasn’t pretty. The media was bashing us right and left. The initial intent of the blog was to offer some minimal type of rebuttal as to who we were. The little description that I had back then (and still do) is “An insider’s guide to what is really happening . . . “ I didn’t think we were being treated fairly.
I wrote anonymously so that nobody would think that I was speaking on behalf of the D.A.’s Office. For the first month or so, only my wife knew, but it didn’t take too long for my secret identity to be the worst kept secret in the courthouse. When I finally officially announced my name on the blog, there were some attorneys who came up to me and said “I had no idea it was you!” and I was always stunned.
Although I think my personal blog has probably long outlived its usefulness, it had a good run in its prime. I don’t regret it at all. As a matter of fact, I’m proud of what it accomplished when it was more relevant.
Q. After being ousted by Darth Lykos, you decided to open up shop as a criminal defense lawyer. Were you ready to start defending the people whom you had spent your career putting away? Was it just a job, or did you come to realize that there were two sides to the story, that they weren’t just the evil criminals prosecutors thought they were? When did you reach the point where you were good with the idea of being responsible for defending the accused rather than convicting them? What caused that change of perspective?
A. Being honest, I think I looked at defending people as just a business decision in the beginning. I was trained to do criminal law and I was no longer a prosecutor. It didn’t take a genius to figure out what the next step was. I felt confident that I could do it on an intellectual level and I didn’t have any worry about doing it. I knew the job description and I knew how to do it. I don’t think I realized how internally responsible I would end up feeling for each client. Even if I couldn’t solve “ALL” of their problems, that agonizing feeling of finding a way to help improve their situation somehow was unexpected.
I don’t think I anticipated how much I would come to really like my clients and care about how the story ended for them. I got to know their families and regarded them as friends. I think the change in perspective happens naturally when you have a client you like and realize that what the State is trying to do to them is bullshit. Fighting for someone accused of something bonds you to them even more than the way a prosecutor bonds with a victim’s family, in my opinion.
Q. In 2013, you learned you had leukemia. How did that affect your practice, your life, your world? You had kids, a family, a law practice that only supported your family as long as you were working, and then you had cancer. You underwent chemo, and came out the other end. Did that change you, your goals, your aspirations? Did you wonder whether you made the right choices in life? What happened to your practice while all this was going on? And did you learn who your real friends were, as is so often the case when adversity strikes?
A. I got really really lucky with how low-grade my leukemia was, and that is something that will never be lost on me. My doctors were great and told me that it was all going to be fine and I believed them. I never had one of those “long examinations of my own mortality” moments. I did have to miss some work but not all that much. I kept it to myself with the exception of some very close friends and colleagues, because I knew I was going to be fine. I didn’t want to be a complete attention freak when what I had was so much lighter than what others were going through. Those co-workers that I did tell about it were phenomenal – especially Luci Davidson, who was there to help me with everything. They covered cases for me and checked on me. We were very fortunate that my wife had good insurance or we would have probably been bankrupt.
Q. You’re now seven years past the day you had to pack your bags and leave the Harris County District Attorney’s office. Do you miss it? Is there still a voice in your head that tells you to prosecute rather than defend? Even though you are now solidly accepted within the defense community, is there still a soft spot in your heart for the prosecution? If you got a call tomorrow, would you return to the District Attorney’s office and get to work putting the bad dudes away?
A. I think I will always have a soft spot in my heart for the prosecution Part of that is because I think that while some complaints about prosecutors are valid, I think many are not. I may not always agree with prosecutors and individual things they do, but it isn’t like the profession should be abolished. There are a lot of damn fine people and lawyers who choose that profession and they do it for the right reasons. There will always be the power hungry ones that screw up the reputation of others (just like there are in any profession), but I hate to see the tendency to vilify a prosecutor just because you disagree with them.
I worked for a long time with some great people. I do sometimes miss having all my friends right down the hallway of where I work. Like I mentioned before, every once in a while I’ll see that case that I’d love to be prosecuting, but other than that, I’m happy where I am. Once you find yourself free of a bureaucracy and doing your own thing, it is hard to want to go back to having a supervisor and explaining your every move. Then again, I do keep getting remarried. [Ed. Note: Murray is on his third marriage, but swears this one will last.]