Two Good Men

Sorry in advance, folks, but this one is going to be a long one . . .

During my career at the HCDA's Office, I had the pleasure to work with two (amongst many) outstanding prosecutors -- Mark Donnelly and Rifi Newaz.

Mark was was Three Man when I was a relatively new Felony Two in the 185th District Court and Rifi was my Three when I was a Two in the 209th, right before I was promoted to Felony Chief.

Mark is the type of prosecutor that nobody has any complaints against. A brilliant and talented attorney who could write the book on Diplomacy, Mark exhibited a maturity beyond his years from the second he walked in the door of the D.A.'s Office. He was excellent in trial. His knowledge of the law and his common sense when assessing cases was unparalleled. He was the type of prosecutor that nobody could have a complaint against. He patiently listened to any issues that a defense attorney may bring to his attention and he looked in to every aspect of every case.

Mark is the kind of guy that you vote for when he runs for President, actually.

Rifi was much more junior to Mark when we worked together, but I have to say he was probably one of the most diligent, hard-working prosecutors I ever had the honor to serve with. The man had more heart and character in his little finger than the entire Gang Who Couldn't Shoot Straight has in the entirety of their bodies. A devoted public servant in every sense of the word, Rifi is the kind of guy that has the moral compass that we could all stand to learn from.

If it isn't obvious by now, I consider them both to be very dear friends that I think the world of.

Today, they became the latest casualties of a blow-hard politician who has unfortunately assumed the mantle of the elected District Attorney of Harris County.

Prior to today's events, Rifi Newaz was the Two Man in the 182nd District Court and Mark Donnelly was his chief. They were in trial against two very talented defense attorneys, Jaquelyn Carpenter and Eric Davis earlier this week, and were selecting a jury.

For those of you who read this and are not trial attorneys, explaining the process of selecting a jury (aka voir dire) is a bit difficult. The short synopsis is that 65 members of the Harris County community are brought over and listen to the Judge, the prosecutors, and the defense talk and ask questions, all in the effort of finding twelve neutral jurors who can listen to a case without bias and ultimately determine the results of the case.

Under the rules of voir dire, each side has ten peremptory strikes that they can make when striking jurors from the panel. If a juror is a high school drop out, a peremptory strike can be used against him. If he or she seems to be more responsive to opposing counsel, he can be struck. If he hasn't held a job in the past year, he can be struck. If he has a freaking mullet, he can be struck. If the attorney making the strikes just gets a bad vibe off of the juror, a peremptory strike allows that attorney to remove him from the panel with no questions asked.

With one humongous exception . . .

Peremptory challenges cannot be exercised based on race, gender or any other factors that are protected under the law.

If opposing counsel feels that a peremptory challenge was, in fact, exercised based on the above-mentioned reasons, they make what is called a Batson challenge, which is basically an accusation that the prosecutor made a peremptory strike of an otherwise qualified juror based solely on their race, gender, etc.

These types of "challenges" are not unusual, in any way. The typical scenario is that the Defense Attorney will observe that a juror has been stricken from the panel by the Prosecution, and the Prosecutor will then have to explain their "race neutral" reason for striking the juror.

The Judge becomes the ultimate decider over whether or not the Prosecutor's explanation is sufficient to prove that they did not, in fact, make that strike based for racial or gender issues. The problem for prosecutors, however, becomes that the "bad vibe", "more responsive to the defense", or any other reasons that may be based on gut instinct become difficult to explain. If the juror in question was not a protected class of citizens, it wouldn't be an issue.

(NOTE: When I was a prosecutor, I was Batson challenged once by a defense attorney who claimed that I had struck an African-American potential juror based on race. In reality, I had not struck that potential juror, the Defense Attorney had. The reason? The potential juror was the defense attorney's probation officer.)

Sorry for the tangent there.

Back to the story, earlier this week, Rifi was trying a case in the 182nd with Mark sitting with him, as his supervisor. Several African-American jurors were struck by the State, and Rifi and Mark subsequently were Batsoned. Jacquelyn and Eric made their objection that the State had used their strikes because of race. Jacquelyn and Eric would have been remiss in their duties as Defense Attorneys if they had failed to do so. Judge Barr then took up the issue, and Rifi and Mark had to explain their reasonings.

Whenever the State has to give their reasons, the Judge has to make the call as to whether or not they were sufficient. In this particular case, Judge Barr made the decision that the reasons were not sufficient. Upon making that finding, the Judge granted the Batson motion, and ultimately released the jury that had been selected. A new jury would have to be selected the following day.

It is unfortunate that this happened, absolutely.

But what happened in the aftermath of the Judge's ruling is beyond unfortunate.

Pat Lykos realized that it would be to her utmost political advantage to throw two very good prosecutors under the proverbial "bus". In an article in the Houston Chronicle, Patsy described Mark and Rifi as "incompetent" and "negligent".

For those of us who know Rifi and Mark, that statement is beyond outrageous.

For Pat Lykos to be calling these two good men "incompetent" and "negligent" is obscene. Perhaps we should give Patsy a little bit of understanding (since she was never a trial lawyer herself and has no idea what an actual trial lawyer has to factor in when picking a jury), but actually, I don't think so. Lykos ran to be a leader to the prosecutors under her, and she is failing them in pretty much every possible way. She has proven herself to be nothing more than a politician by scapegoating her people rather than hear their versions of events. A true trial lawyer would have at least listened.

But not our gal, Patsy.

She quickly latched onto the fact that the public would celebrate her disciplining two prosecutors for what they were perceived to have done. She disciplined and transferred both prosecutors and will doubtlessly be cheered for it.

She shouldn't be.

Anyone (from either the defense or the prosecution) knows that Rifi and Mark are good, decent, honest, and hardworking prosecutors. There may be some prosecutors to find fault with, but these two guys don't fit that bill. Lykos made bad examples out of two men that, in reality, serve as good examples of what prosecutors should be every day of the week.

And you know what? It was chicken shit.

As noted by Mark Bennett's comments in the article, some members of the Defense Bar will (wrongly) applaud her decision. I doubt that they will be clapping their hands as loudly when the Office loses what these two guys brought to the table.

I know that I am sometimes accused of being a "prosecutor sympathizer" and some say I haven't been able to "mentally adjust" to being a defense attorney.

That's silliness.

I would rather deal with a good prosecutor any day of the week than a bad one. A good prosecutor knows the difference from a strong case and one that is B.S. A good prosecutor knows when the probable cause for a stop is no good. A good prosecutor knows when to dismiss a case if it should be dismissed, and they aren't afraid to do it.

Rifi and Mark fit that description down to the last detail. It's a shame that Lykos is too stupid and too much of a political grandstander to realize that. She just cut off her nose to spite her face.

Mark and Rifi, anyone who has ever dealt with you all from either the State side or the Defense side knows that you all are both examples of what every prosecutor should be.

Pat Lykos is a clear example of what a prosecutor should not be. Making judgments based on perception rather than fact is ludicrous in ways that I can't even scratch the surface on describing. When not openly trying to castrate her prosecutors in public, she's been soliciting defense attorneys to let her know who they have complaints against. She's not a leader in that office. She is the Destructor.

I have no idea what Rifi or Mark's plans for the future are, but I hope that they leave the Office.

The Lykos Administration doesn't deserve them.

And on a side note, I'd like to ask the question, where in the hell were Roger Bridgwater and Jim Leitner during Lykos' punishing of Mark and Rifi? As former defense attorneys, they stood by people accused of the most reprehensible actions and defended them to the best of their abilities. Did they do the same in acting as buffers for Mark and Rifi from Lykos' lunatic actions?

Apparently not.

Guys, you need to go search in your closets for your backbones. You both know that Rifi and Mark didn't deserve this. Did you stand up for what you believed in? Or did you just jump in on Lykos' mob mentality that stands against every principle the Criminal Justice System was created for?

Today is a dark day in the Office's history.