Lykos Reads the DA Playbook

 Posted on February 23, 2008 in Uncategorized

From AHCL, talking about Harris County Republican DA candidate Pat Lykos:

A t a recent political event, she refused to speak until after the representative of the Siegler campaign had gone first (even though that wasn't the agreed upon order). Apparently, she didn't want anyone to follow up after her speech and point out (yet again) that what she said lacked all substance.

Now, it's funny to see AHCL, who often talks suspiciously like a prosecutor, complaining about someone "refusing to speak until [the other side] had gone first." AHCL's analysis is correct, of course: Lykos's actions suggest that she didn't want anyone to have an opportunity to point out that what she said lacked all substance.

So why is it funny?

It's funny because in every criminal jury trial in Harris County the prosecution has the opportunity to "close fully" - that is, to make his complete closing argument before defense counsel gets up to argue - and then to rebut defense counsel's argument, responding to anything new she brought up. (In Federal court, the Government is required to close fully.) Yet Harris County prosecutors never do so.

Instead they usually "waive the right to open [final argument] and reserve the right to close", forcing counsel for the accused, who has no burden to prove, do, or say anything, to anticipate and respond to the prosecutor's arguments. (If a prosecutor does not waive the "right" to open final argument, he makes only a bare-bones argument before the defense argues.) In other words, Harris County prosecutors almost universally "refuse to speak until the other side has gone first."

(There is a heretofore untested argument that the Texas statute that allows the State to have the last word before the jury is unconstitutional. Procedural due process - so the argument goes - requires that the accused have notice of the prosecutor's argument and an opportunity to be heard in response.)

It's fair for AHCL to conclude that Pat Lykos won't go first because she doesn't want anyone to point out that her speech lacks substance.

It's equally fair for jurors in a criminal case to conclude that the prosecutor won't go first because he's trying to pull the wool over the jury's eyes.

This sort of gamesmanship may well have a place in politics - that's not my area of expertise. It should find no place in the courtroom when a person's freedom or his life is on the line.