Keeper Cases

Whether a criminal attorney is a prosecutor or a defense attorney, there are some cases that you know are headed to trial the first time you ever read over them. There is just something about the facts or surrounding circumstances of the case that tells you, based on your experience, that the only way that case will ever be resolved is through twelve citizens of the county telling the Defendant what their judgment is.

From a defense perspective, that doesn't present much of a continuity issue. If you are retained or appointed on the case, you will be handling that case unless your client decides that they don't want you working on the case on their behalf.

But from the prosecution side, it can very often be a problem due to the fact that prosecutors are continuously rotating through different positions in the Office in Harris County. In the Felony hierarchy of the Harris County District Attorney's Office, a Felony Chief (handling Capital murder cases) will often stay in the court where they are assigned for anywhere between three to five years. A Felony Two (handling murders, sexual assaults, aggravated robberies) is typically in their court for about a year rotation at a time. A Felony Three (handling all other felony cases) is often only their court for a maximum of six months before being rotated back to Misdemeanor as a Misdemeanor Chief.

When a case comes into a court on its first appearance (for those of you following the lingo, we call that a PIA for "Preliminary Initial Appearance". Redundant title, isn't it?) odds are that if it is going to ultimately go to trial, it will pend in the court for over a year, if not longer. Capital cases can pend for much longer based on all the work involved.

My point is that the prosecutor handling a case when it is first filed is very unlikely to still be in the same court when the case is ultimately ready to go to trial. For the vast majority of cases, that's not that big of a deal. The outgoing prosecutor who is being moved to a new position just leaves a memo on the file for his or her successor.

But other cases involve so much in-depth work, knowledge of the case, and ultimately emotional attachment that it would be an absolute travesty for any prosecutor other than the one who worked the case up to take it to trial.

I'm not talking about shoplifting cases or narcotics cases here. I'm talking about the truly complicated and emotional cases -- the murders where the prosecutor has developed the trust of the victim's family or the aggravated sexual assault of a child where the child victim is comfortable talking only to that prosecutor. Having the same prosecutor on that case from start to finish is to the benefit of the victims of those crimes. On the flip side, it allows a prosecutor to fully sink his or her heart into a case and get to know every aspect of it like the back of his hand.

In the past, it was quite common for a prosecutor to hold on to a specific case, even after they had been transferred to another court for various reasons.

When a prosecutor held onto a case after transfer, it was called a Keeper Case.

Now, to be sure, holding onto a Keeper Case for a prosecutor often brought along some headaches for that prosecutor, as well as the other prosecutors in his new court. They are basically increasing their work-load -- they have to keep up with their new duties in their new court, yet they are holding on to a trial case. When they actually go to trial on their Keeper Case, it will leave their new court short-handed while the prosecutor is off in another court trying the case.

Trust me, I speak from experience when I say that a Keeper Case for a prosecutor is often a logistical nightmare that causes a gigantic pain in the posterior for that prosecutor. It often involves you being in trial from eight to five and then working late into the night to keep up with your new duties in your new court.

But it's worth it.

Holding onto a Keeper Case because you've sunk your heart and soul into it is why so many Assistant District Attorneys wanted to be prosecutors in the first place. They are every bit as passionate about prosecuting a case as a defense attorney is about defending his client. That passion shows, too. It shows to the victim's family. It shows to the jury.

There is a big difference in a prosecutor that has been working on the same case for the past year and a half, working it up from start to finish, and the prosecutor who picked up the case the week before trial and did a crash course on bringing themselves up to speed on the case.

I'm reminded of a closing argument that Luci Davidson once gave, where she pointed out that the case had belonged to her for over a year and a half, and now she was placing it into the jury's hands. It was a powerful statement, and one that couldn't have been made had she just become involved in the case a month earlier.

In short, the Keeper Cases are the cases that prosecutors remember long after their careers at the Office have wrapped up. They are the ones you put everything on the line for, and you never forget them.

Why am I bringing this up?

The Lykos/Leitner Administration just put a ban on Keeper Cases.

I can understand why they did it to some degree. It does generate a logistical problem. And we all know that there may be the occasional prosecutor who wants only to hold onto the high profile cases so that their families can see them on TV.

But the vast majority of prosecutors that I know held onto Keeper Cases because their hearts told them to, and for no other reason.

Yes, Jim's memo said that they might make an exception with his approval, but those exceptions will be few and far between.

That really shouldn't be the Rule. If a prosecutor knows his or her case well enough to say that they should hold onto it, why on Earth should they have to go beg Jim to allow them to try it? This is one of those classic examples of where experience in the leadership of the Administration matters.

If Pat Lykos had been a prosecutor, maybe she would know what it meant to be emotionally invested in a case.

Alas, it isn't to be, I suppose. Instead, we will foster an atmosphere where prosecutors get tough cases on the day they are filed, and they will know not to get too emotionally involved in the case. They will know that there will be little chance that they will actually be the prosecutor who takes it to trial, so why get your heart into it?

This policy is a mistake because it is taking the passion out of the prosecutor's job (yet again).

Do you think a victim's family won't notice that?