Rachel Palmer

By Jacquelyn R. Carpenter 

How is a person charged with not only upholding the laws of the State of Texas, but, also, convicting those accused of violating the laws of the State of Texas, supposed to seek justice when she herself is circumventing the judicial process? 

Assistant District Attorney Rachel Palmer emerges from
a hearing on a motion to compel her to testify before the
grand jury.  The Judge declined to force Palmer to testify.

Rachel Palmer effectively signed her own letter of termination, whether involuntary termination or a “recommended” termination, the moment she pled the Fifth. Crazy thing is: she thinks she won all because Judge Brown ruled in her favor (which was smart). It’s obvious she did not think this whole thing through.  Rachel Palmer got what she wanted, but it will lead to something she did not want. 

Let’s briefly recap. Rachel Palmer (Palmer) was supposed to testify before the Grand Jury on Thursday. Her lawyer, Clay Rawlings, spoke with the Special Prosecutors on Wednesday, the day before her scheduled appearance, and Rawlings told the Special Prosecutors that his client would invoke the fifth. While Rawlings screamed, “Ambush,” before Judge Susan Brown on Thursday morning, one of the Special Prosecutors, I believe it was Stephen St. Martin, told Judge Susan Brown at the bench on Thursday morning, “Your Honor, we were informed yesterday that his [Rawlings] client was going to invoke the fifth. We would have been remiss not to plan accordingly.” [If that is not a quote, it’s pretty darn close.] 

Chaos is what ensued from the moment the Motion to Compel Grand Jury Testimony was filed. Smugly, Rachel Palmer sat there in court, laughing and talking with some colleagues, but she would later claim to be so afraid of Judge Brown. And who in the CJC on Thursday did not hear about the prosecutor getting arrested? Such a statement was hyperbolic at best, but referenced by Palmer’s lawyer at the bench. On Thursday, Rawlings was asking for a reset to get research and up-to-speed on the accusations. Ultimately, he was given time, a whole weekend. On Monday, he shows up, not with research, but rather, a motion to recuse. He had a whole weekend to prepare the motion to recuse and, yet, we get that Palmer is treated unfairly by Judge Susan Brown because of the way Judge Brown said, “Hi, Rachel.” Really, Rachel? That should not have even made it into the testimony. Palmer sounded like a whiny, entitled, narcissistic aristocrat with that statement. 

I am not missing the crux of her testimony - this is all a political scheme, possibly a political witch hunt, which begs the question: why are you playing into your political adversaries’ hands??? Rachel Palmer, you had everyone captivated, on the edge of their seat, waiting to hear your words. Your hard-hitting information, that you highlighted through delay tactics, about the integrity of a judge and the judicial system amounted to tenuous allegations with no proof whatsoever, while accusations about your own ethics and integrity are questioned and unanswered. Rachel, I hope that you really did need to invoke the Fifth because, otherwise, you burned yourself for no apparent reason. Don’t get me wrong, I do not doubt politics is at play with regard to some things (but not , for instance, the grand juror Palmer presented who was supportive of Jim Leitner and switched to Lykos’s team after the primary); politics is a distasteful aspect of the judiciary, in my opinion. However, politics is the game Palmer decided to play the moment she threw her hat in the ring. If you cannot accept defeat, and everyone has got to like you, then maybe politics is not your best arena. After all, lawyers who supported your opponent will stand before you if you are elected, and you must still be fair to the defendant that attorney represents. Part of Palmer’s “proof” that people were against her was her own failed bid to the bench and a shout out to her detractors. Get over it already! I know others who ran, lost, and moved on! You can talk with them and rarely, if ever, hear about the election or their campaign. Move on already! 

In the grand scheme of things, after all is said and done, we spent three days in two courts to hear that Judge Susan Brown has her concerns, like Palmer and her attorneys, that Palmer could say something incriminating. Well, if I weren’t a lawyer, that would sure sound like some law was violated somewhere. Who am I kidding? I am a lawyer and it sounds like a law was violated somewhere! 

And, now, I am back to my original question: How is a person charged with not only upholding the laws of the State of Texas, but, also, convicting those accused of violating the laws of the State of Texas, supposed to seek justice when she herself is circumventing the judicial process? If Rachel Palmer wants to keep her job, she can always argue the case of the elected District Attorney of Shelby County that pled the Fifth. 

P.S. - Rachel, please teach my clients how to invoke their Fifth Amendment rights before giving a statement to the police!

Implications of the Fifth

By: Jacquelyn Carpenter

The Fifth Amendment is a right every citizen has . . . even Deputy Misdemeanor Division Chief prosecutors when they testify (or not) before the Grand Jury about what the District Attorney’s Office knew about problems with mobile breath alcohol testing machines (BAT vans or BATmobiles) used to convince juries in dwi cases that another citizen is guilty of driving while intoxicated.  (I know - long sentence!)  Having the right to invoke the Fifth Amendment, when you are a prosecutor and presumed to know the law and are duty-bound to uphold it, does not stop it from looking like you are protecting someone, someone with more political interests than you.

That said, on Thursday of this week, Rachel Palmer, Deputy Misdemeanor Division Chief, was subpoenaed before the grand jury investigating what the Harris County District Attorney’s Office knew about problems with the BAT vans.  And, do not get me wrong, I do not dislike Harris County District Attorney Patricia R. Lykos.  Some people feel very strongly about her, I do not.  I have never met her.  BUT Rachel Palmer thinking she needs to invoke the Fifth Amendment wreaks of desperation to hide something, and it reflects poorly on Pat Lykos. 

I was at the hearing on Thursday being every bit as nosy as I could.  I saw Channel 13 reporter Ted Oberg as he ran into the hallway to question First Assistant Jim Leitner.  I stood in the hallway and listened as Ted Oberg asked the ultimate question of Leitner: “Does it look bad?”  Does it look bad that your prosecutor is invoking the Fifth Amendment?  Does it look bad that Lykos believes she has done nothing wrong, but still chooses to hide from the grand jury investigation . . . hiding through a prosecutor of all things?  Jim Leitner’s response?  “All I can tell you is that someone took the Fifth, the law says they can.”  No, Jim, an assistant district attorney took the Fifth.  And, by the way, she is an assistant district attorney in a position to supervise other misdemeanor assistant district attorneys that are in the courtrooms actually trying dwi cases using BAT van evidence.

The very entity charged with prosecuting citizens who may have done something criminally wrong, now hides from investigation into their own actions.  Yet, per Jim Leitner, “You want it to look bad, they want it to look bad.”  I guess he was referring to the press when he said “You want it to look bad” and I have not a clue who he was referring to when he said “they want it to look bad.”  However, arguably, it just does look bad.  What citizen in Harris County is not watching this ongoing saga thinking, “What are they [Lykos and her Administration] hiding? What did they actually know about the BAT vans? And when did they know it?”  My colleague Paul Kennedy said it well, “I just wonder if the DA’s Office is so hell bent on prosecuting DWIs that they will violate the law in so doing, what do they do on more serious cases?”  The integrity of all prosecutions, and thus, convictions, are in question at this point.

What A Waste

Shown with the Family of the Man are Minister Johnny B. Jeremiah,
( the man wearing the bow tie) and his attorney Ronald Ray (center).

By Jacquelyn R. Carpenter

I have been enthralled with the recent occurrences out of the 351^st Judicial District Court involving a man convicted of aggravated robbery and sentenced to life in prison.  Two weeks later, evidence is produced showing that the man was sitting in the Harris County Jail and could not have possibly committed the crime for which he sat convicted.  Convicted man was in jail when crime occurred - Houston Chronicle

Think about it: the defendant was charged, the defendant went to court, the defendant’s family hired an attorney in the hope that the attorney would investigate his case and fight for him, the Judge and his staff show up to court on this case (as well as others) for months, a prosecutor is assigned to the case and makes appearances as well over the course of several months, a jury panel of 65 citizens was convened, that panel sat through hours of questions during the jury selection process (voir dire), 12 citizens deferred their regular day-to-day activities to listen to the evidence at trial, 12 citizens deliberated and reached a verdict.  Two weeks later, after months have passed in which this information could have been presented and after a life sentence pronounced, irrefutable evidence is produced that clears the defendant beyond a reasonable doubt.  This would be comical if it weren’t so abysmal.

If my understanding is correct, the prosecutor took responsibility to some degree for not discovering this prior to or during trial.  I think it is commendable that she graciously accepts some responsibility, but I cannot understand how any of this is her fault.  At what point was she in a position to ask the defendant, “Sir, where were you on December 13, 2009?”  As a matter of fact, had she done so, I would be writing a blog eviscerating her for violating the defendant’s constitutional rights.  At what point and how was she supposed to just know to look at jail records to see if he was in jail at the time of the commission of the offense?

One thing I love about being a criminal defense attorney is the feeling that I know about underlying issues and motives.  I feel like I know what really happened.  Knowing satisfies the nosy part of my being.  One of the things I enjoy the most is asking the client, “What happened?”  I want to see things from their perspective.  It only takes a conversation, with plenty of follow-up questions.  I will look at a client in a confused manner in a heartbeat and say, “I don’t understand.”  By doing so, I am encouraging them to make my dumb behind understand.  I love “why” questions because I want to understand their perspective.

I know what you are thinking: Jackie, defendants lie, even to you the defense attorney.  Some do, yes, I am fully aware.  Nevertheless, I continue to ask follow-up questions.  After all, my questions of doubt are easier than the drilling they would take from an officer or a prosecutor. 

“It boggles the mind that neither side knew about this during trial,” said Judge Mark Kent Ellis.  I disagree in part; it boggles my mind that the defense did not know about this prior to trial.  I guess I need more information, which I will never get, about the conversations that took place leading to this.  From the outside looking in, it would seem that the defendant could have just said where he was.  He never did, which leads one to believe that he did not know himself.  I guess someone could argue that he never gave his lawyer anything to investigate, nothing to fight with.  Additionally, if you randomly ask me about a date in the past, I would not likely know what I was doing on that date or where I happened to be doing whatever I cannot recall doing.  Nevertheless, there has to be some tendencies though, you know, like working Monday through Friday certain hours.  Would that have not been a start?  Perhaps, in an effort of figuring it out, the lawyer or investigator could have subpoenaed employment records.  Ideally, there may have been a note in the paperwork that said a family member called to say the defendant was not coming to work because he got arrested, which would then have led to the jail records ultimately clearing the defendant.  Perhaps getting bank records to see if I used my bankcard somewhere would clue me in as well.  What does defense attorney Ronald Ray have to say?  “I have freed a man from a life sentence, so if you want to say I’m incompetent for doing that, I’ll accept that with a smile,” Ray said.  No one is insinuating that Ray is incompetent for freeing a man from a life sentence.  No, rather, the suggestion is that the man should not have faced a life sentence in the first place.

Obviously, somebody dropped the ball on this case.  Interestingly enough, the person who benefits the most is the person who actually committed the crime.  Personally, I assign the crux of the blame to the defendant himself.  Next in line is the defense attorney unless he can show where he struggled to determine the whereabouts of his client, which he claims he did do.  The prosecutor, well, she had a judgment that did not disclose the actual dates of incarceration so, maybe I am wrong, but I do not see why she has a reason to apologize on these facts.  All in all, this truly seems like a waste – a waste of time, talent and resources (judge, court staff, operating costs of court, prosecutor(s), investigators, police, etc.).