Friday, July 3, 2020

Newman & Chapell, PLLC

For those of you who haven't heard already, I'm beyond excited to announce that former Harris County Special Crimes Prosecutor and Felony District Court Chief, Cheryl Chapell, has agreed to join me in forming a partnership as Newman & Chapell, PLLC.

I first met Cheryl several years ago when she was a new Felony Three and she was completely thwarting my attempts to persuade her chief to dismiss one of my cases.  Luckily, she ultimately moved into a different court and I was finally able to get the case dismissed.

A year or so later Cheryl had been promoted to Felony Two and she and I ended up trying what would be her first Murder case against each other.  As you can imagine, Murder cases can often be very complicated cases to both prosecute and defend, and the stakes are very high.  It can be an extremely stressful experience if you are new to it. 

But it never appeared to be stressful to Cheryl.  She was great to work with during the weeks leading up to trial.  She went above and beyond to make sure she had done everything she needed to in order to be ready.  She was professional and helpful in making sure that I had all the discovery available on the case.  She was ethical and above-board throughout.

When it came time to try the case, she didn't seem like a new Felony Two trying her first murder.  She was confident and in charge of her case.  She tried it strategically.  The jury loved her.  She tried the case like an experienced Chief, far more skilled than any other prosecutor at her level. 

And she was great to try a case against.  In stressful trials like Murders, it is very easy for the prosecutor and defense attorney to quickly get under each other's skin and end up ready to kill each other.  That wasn't the case with Cheryl, though.  She remained confident and pleasant throughout.  At the end of her closing argument, I was certain that my client was going to be convicted.

It was a tough set of facts though, and I had a lot to work with.  The case ended in a hung jury.

When the case was over, I was a big fan of Cheryl's.  As it turned out, pretty much every defense attorney I know that tried a case against her ended up being a big fan -- even when she whipped their butts in trial.  She quickly became a prosecutor within the District Attorney's Office whose reputation preceded her as one of the Office's most talented and formidable trial lawyers.

A year and a half ago, I had another case against Cheryl (and her co-counsel, Josh Raygor) that was a little less debatable than the Murder we had tried against each other before.  She was polite, friendly, courteous . . . and she beat my ass up one side of the courtroom and down the other.  The only saving grace that I was able to take away from the case was that the jury deliberated over a day before returning a guilty verdict.  

Last summer, I began thinking of expanding my law practice, which was a big move for me after having been a solo practitioner since leaving the D.A.'s Office at the end of 2008.  There were a lot of things to consider.  I thought about hiring a younger associate but ultimately decided against that.  I wanted to work with somebody that I didn't have to teach.  I wanted a partner -- somebody that I knew could do the job and I would never have to worry about.  I knew that I wanted a hardworking, kick-ass trial lawyer who could, at least, loosely tolerate working with a slightly obnoxious partner.

There was only one name that came to mind.

So, I met with Cheryl last summer and tried to recruit her to be my law partner.  I made her the best pitch I could possibly muster.

Unfortunately, she wasn't ready to leave the Office at that time.  She didn't turn down the offer, but she wanted to give it another year or so before even thinking of leaving a job that she loved and was good at.  We put the discussion of partnership on hold until mid-2021.

But then, Kim Ogg happened.

As I wrote in March, our elected District Attorney spent the early days of the COVID pandemic initiating a witch hunt into determining which prosecutors had received a text message deemed to be embarrassing by Ogg.  Cheryl was one of seven prosecutors who had received the unsolicited text message and had not forwarded it to anyone.  Despite this, she and the other prosecutors were interrogated, temporarily stripped of their county computers, and were asked to turn over their personal cell phones as proof of their loyalty.  

Cheryl refused to turn over her personal phone, as did the others.  As a result, she received a disciplinary letter in her personnel file.  Michael Hardy wrote this article in Texas Monthly about the entire embarrassing ordeal.

Cheryl had had enough.  Last week, she dropped her letter of resignation to Ogg and sent a corresponding All Prosecutors e-mail that you might have heard about.  Harris County lost one of its very best prosecutors and I gained a law partner a year earlier than I thought I would.  

I suppose I owe Kim Ogg a thank you note.

I could not possibly be happier to have Cheryl Chapell as my new law partner.  I'm especially glad that this pretty much guarantees that she won't be beating me up in trial anymore.  As Newman & Chapell, we both look forward to the future of representing our clients in Harris County and across the State of Texas.

Thursday, July 2, 2020

Early Voting Has Begun for the 2020 Runoff

With everything going in the world, it is easy to overlook the fact that early voting began on Monday for all Texas runoff elections, including a few that affect the Harris County Criminal Justice System.  Election Day is officially on July 14th.

Voting locations have taken all the necessary precautions to ensure that voters have a safe experience while voting.  We've all changed our routine habits and safety precautions over the past several months because of COVID, but if you have felt safe enough to venture out to go to the grocery store, for fast food, or get gas for your car, you should feel safe enough to go vote.

As always, there are multiple voting locations open around Harris County, and you can find them by going to for more information.

IMPORTANT NOTICE:  You can vote in the runoff election EVEN IF you didn't vote in the primary back in March

There are no Republican runoff races on the ballot this year that directly affect the Harris County Criminal Justice World with the major exception of Sheriff.   Candidates Joe Danna and Paul Day are facing off against each other to see who will challenge incumbent Sheriff Ed Gonzalez on the ballot in November.  I'm not personally familiar with either Mr. Danna or Mr. Day so I don't have a recommendation here.  

Whoever wins the runoff will have a very uphill battle against Sheriff Gonzalez.

On the Democratic Ballot, there are a handful of contested races that deserve your attention. 

339th District Court

In the March primary, Harris County Assistant Public Defender Te'iva Bell garnered 44% of the vote in a three-person contest.  Her opponent, Candace White, received 36%.  As I noted in my earlier write up on the primaries, I don't know Candace White.  I see that she is a municipal court judge, which handles only low-level misdemeanor cases.

By contrast, I've known Te'iva Bell since she was a brand new prosecutor at the District Attorney's Office.  She was my friend then and I'm proud to say that she is still my friend.  After leaving the D.A.'s Office, she went on to become one of the original defenders at the Public Defenders Office.  She has become a leader and respected voice in that Office, handling some of the most serious cases.  She is by far the most qualified candidate.

My Vote:  Te'iva Bell

Justice, 14th Court of Appeals - Place Seven

My friend (and wife of my friend and fellow defense attorney, Lewis Thomas) Cheri Thomas is in a runoff for Justice of the 14th Court of Appeals against Tamika "Tami" Craft.

Cheri has an amazing legal resume after having graduated from the University of Texas Law School with honors.  She worked in a Federal clerkship for the Honorable Jorge Solis in the Northern District of Texas before going to work for Baker Botts.  From Baker Botts, she went on to become a partner with Stuart, PC.  In 2017, she became a staff attorney for the 14th Court of Appeals, where she has spent the past three years working on both civil and criminal cases.  She is uniquely qualified for the job.

Ms. Craft's campaign website does not list have a detailed list of her professional resume, but I found this interesting article on that interviewed both candidates, and left me with a lot of questions about her background.  I encourage you to read it and come to your own conclusions, but I think it is pretty clear that Cheri has more experience for this position.

My Vote:  Cheri Thomas

And also . . .

State Senator, District 138

If you happen to live in District 138 (and if you don't know, go check,  You really should know these things), HCDA alumni, defense attorney and my friend Akilah Bacy almost avoided a runoff with an impressive 46.77% of the vote in a three-person race in the March primary.  If you are voting in the Democratic Primary in District 138, please go vote for Akilah!

Not my District, but my vote would totally go to:  Akilah Bacy

Whether you agree with my recommendations or not on these elections, please remember that ALL candidates on both sides of the ballot work their butts off on campaigns for the opportunity to serve the public.  They ALL deserve your consideration and they ALL deserve your participation in the voting process.  

Don't let COVID keep you away from voting.  

Thursday, June 25, 2020

Boss Ogg Rides Again

As I've written many, many times before, Kim Ogg is no prosecutor.  

She's just another ambitious politician who currently holds a political office that happens to be that of the county's top prosecutor.  Long before her successful election in 2016, she had been a Republican and then a Democrat.  She shifts with the wind for whatever benefits her.  In her three and a half years as District Attorney, it is a wonder that she doesn't have whiplash as she has bounced back and forth between portraying herself as Ogg the Progressive and Ogg the Law & Order Prosecutor.

Kim Ogg has demonstrated time and again that she resembles Huey P. Long far more than Johnny Holmes when it comes to being a District Attorney.  

Ogg has unabashedly used asset forfeiture money acquired by the Office (that's the money the Office seizes from people charged with crimes under the theory that they were illegally gotten gains) to hire her political allies under the guise of them working in "community outreach" (see former Houston Police Department Chief and former HCDA Candidate Clarence Bradford, and former City Councilman Dwight Boykins, whose temporary tenure apparently only lasted through Ogg's contested Democratic primary this spring).  Then there was the hiring of former city councilman Mark Goldberg as a "baby" prosecutor who hung out in the misdemeanor trial bureau just long enough to do this before being promoted to the upper administration.

Speaking of Mark Goldberg, a quick check of the Harris County District Attorney's roster has him listed as belonging to the somewhat vague "Administrative Division."  However, Mark is signing off on his e-mails as "Community Outreach Committee Member" these days and that's where our latest story begins.

On Tuesday, an "All Prosecutor" e-mail went out to the Assistant District Attorneys employed by the citizens of Harris County, but under the supervision of D.A. Ogg.  The e-mail was from Boss Ogg herself.

The subject title had the all caps command to "VOLUNTEER" for an event arranged by The Ministers Coalition of Harris County.  As noted in the e-mail, the event was a "voter registration drive" coupled with a "food giveaway" where "DA Kim Ogg will be speaking."  According to Kim's e-mail, she was "looking for volunteers."

But here's the funny thing about the word "volunteer."  It's kinda-sorta a derivative from the word "voluntary," which means a free-will decision to do something.  Or at least, that's how I learned it, but then again, I am an Aggie.

But the next paragraph threw my entire understanding of the word into question by saying:  "Part of every employee's performance evaluation includes a grade for personal development.  This includes community activities and volunteering for projects like this."  She then encouraged people to "apply" (as if there was some sort of honor in being selected for this volunteer opportunity) with Mark Goldberg at his county-issued e-mail address.

Significantly, the e-mail was signed by Kim.

So what this e-mail was really saying was: "Hey, it's me.  Your boss, Kim.  I'm going to give some free stuff to people while registering them to vote so that they will have some real positive vibes toward me in November when it's time to vote.  I'm going to need some of my people to help me pull off this campaign stunt.  You are going to be graded on your performance evaluation by whether or not you help me.  Hugs and kisses, Kimbra."

Depending on how you look at it, that type of thing could be what we call "illegal."  Under some interpretations, it looks a little like Official Oppression.

At a minimum, it is insanely unethical.

It took a few seconds for someone to grab a screenshot and ultimately send to me.  I exercised my discretion for about three seconds before sharing that screenshot on Twitter.  It started popping up on Facebook pretty soon after that.  The condemnation of the e-mail was so strong that Kim did something she never does.

She walked it back.  

Well, I mean, she "walked it back" for her, by which I mean, she made somebody totally fall on the sword for the e-mail that she TOTALLY SIGNED WITH HER OWN NAME AND SENT FROM HER OWN E-MAIL ACCOUNT.  

That person was Misdemeanor Two, no wait, I mean Upper Administrator, no wait, I mean Community Outreach Committee Member Mark Goldberg, who wrote the most stunningly "Good God, how stupid do you think we are?" retraction e-mail in the history of retraction e-mails.

I mean, this e-mail has been out for a day and a half and I still can't read it without laughing.

"Late yesterday afternoon an email went out from DA Ogg that should have gone out under my name."  -- man, I wish I had a dollar for all of those e-mails that I've sent to people that inadvertently went out under somebody else's name.  It happens all the time.

"What you actually got was a draft form with some misinformation that was inadvertently distributed in that form."  -- You know what is worse than accidentally sending out an e-mail in the wrong person's name?  When you send out completely wrong stuff under that wrong person's name!

"Additionally, I would like to add that no one is ever required to volunteer."  -- please totally disregard that whole thingy we said early about volunteer or be punished.  You may now resume your original understanding of the word "volunteer."

To make matters even more interesting, the Houston Chronicle's Samantha Ketterer tweeted this about Goldberg's retraction:

I have to give Goldberg credit.  When he falls on the sword for his boss, he does it with gusto.  

His retraction basically reads like this:  "Hey Guys, Mark Goldberg here.  Yesterday, I went and got on Kim's e-mail and sent out a bunch of stuff that was completely made up,  I mean, all of it was totally fake.  I said there was this event.  I said Kim was going to be speaking.  I said you had to go volunteer for it or you'd get bad evaluations.  It was all bullshit.  Just kidding.  My bad.  Sorry for the misunderstanding.  Sincerely, Mark.  P.S.  Please believe me on this e-mail.  I really really need you to believe me."

I mean, damn, if what Mark said he did is really what he did, Kim Ogg should totally fire him, right?  I used to send practical joke e-mails from other people's computers back in the day, but I never had the guts to do that to the elected D.A!  Damn, dude.

Back in the old days, I used to call Pat Lykos' upper administration the Gang Who Couldn't Shoot Straight.  Kim Ogg's group makes them look like Seal Team Six.

The irony is that if what Mark said in his "retraction" is true, he's actually doing something worse than misinforming the assistant district attorneys.  He's acknowledging that he has the authorization to send campaign-style e-mails from Kim's e-mail account to all prosecutors.  Kind of calls into question what exactly the taxpayers are paying him for, doesn't it?  

It's just another day in the life at the Harris County District Attorney's Office under Boss Ogg.

Monday, May 18, 2020

Shopping with D.A. Kim

After wrapping up her insanely huge waste of time weeks-long inquisition into finding what prosecutors might be mocking her behind her back (which landed her in an excellent article in Texas Monthly written by Michael Hardy, in case you haven't seen it), Harris County District Attorney Kim Ogg has apparently found herself getting bored by the pandemic.

I mean, sure, the Judges, the Defense Bar, the Prosecutors, and Law Enforcement are all working long hours to figure out the complicated balancing act between public safety and Constitutional rights, but Kim is a multi-tasker.  She's got time to oppose PR bonds, give three press conferences, and hunt down disloyal prosecutors like the dogs that they are, all before noon!  Press Conference Kim has got so much time on her hands that she feels like doing a little shopping.

Today, I was greatly amused to receive an e-mail from "DA Kim Ogg" entitled "Continued Support for Local Businesses."

To be fair, the e-mail came from Ogg's campaign e-mail account and not her official government e-mail address (the one she used when she was sending out an office-wide e-mail telling her subordinates who they needed to vote for in the State Bar election).  However, the e-mail did arrive at 10:23 a.m., which was when the rest of the prosecutors at the Office were busily dealing with a healthy Monday morning docket.  That's interesting timing, because clearly the e-mail was nothing more than a rather lame campaign stunt and it was definitely being sent during work hours.

In the e-mail, the artist-formerly-known-as-Press-Conference-Kim has apparently switched titles to Chamber-of-Commerce-Kim, as she encourages the reader to please consider shopping locally, noting her "campaign's initiative to support small local businesses."

Some may wonder,"What exactly does a District Attorney have to do with starting an initiative to support small local businesses?"  Well, I've done the research, and it turns out the answer to that question is "nothing."  However, far be it from Chamber-of-Commerce-Kim to pass up an opportunity to use her "DA" title to encourage people to specifically shop at three of her preferred stores.

"DA Kim" gives a shoutout to The Harmonious Kitchen (which,  I believe would be a creative way to describe the exact opposite of the D.A.'s Office's current workplace atmosphere), Vincent Ford's Custom Men's Apparel (um, okay), and Pizzitola's BBQ (which DA Kim notes "has the best ribs in Houston!  Don't believe me?  Go give them a try!").   I'm not saying anything negative about these places, but Kim's awkward endorsements have kind of given me a case of the giggles.  Like, now I have this visual image of Kim staring awkwardly into the camera and yelling that "Harris County D.A. saves you money!!!" as she jumps in the air with a handful of currency.

I don't think there is necessarily anything illegal or particularly wrong with Kim hawking products like Snoop Dog selling Hot Pockets . . . 

(And yes, this is apparently a real thing.)

. . . but it just feels a little unseemly, doesn't it?  Especially when she refers to herself as "DA Kim Ogg" in her advertisement's signature?

All of this, of course, has inspired me to think of other Kim Ogg-worthy commercials:

"Got a loud co-worker in the next room that's always yelling at people about them not knowing when she takes her lunch hour?  Try Kim Ogg Earplugs.  They are fit for a King.  A Vivian King."
"First Assistant being a little too argumentative with you over the right thing to do?  Try Berg-Be-Gone in an aerosol can.  One spray and he'll be out of your office faster than Andrew Smith refusing to commit perjury for you.  Now in unscented!"
"Ungrateful police officers using your data bases while complaining about you to the media?  Never again!  With the Joe Gamaldi Data Blocker, you can shut down these ungrateful data moochers until they get their attitudes adjusted.  No Justice?  No problem, with the Joe Gamaldi Data Blocker."
"Disruptive prosecutors talking about you behind your back?  Try the Bark Internet Monitor for Parents.  It will tell you what's really going on with your employees' personal cell phones and computers."
"Got former employees suing you for a couple of thousand dollars for wrongful termination and/or unemployment?  Give the Mize Law Firm a call.  Tell her Kim sent you!"

I could literally do this all day, but I've got to go.  I've been eating too much Pizzitola BBQ and don't fit in any of my old suits anymore.  I'm going to give Vincent Ford a call for some custom men's apparel and then start working on my diet with the Harmonious Kitchen.

Tuesday, April 21, 2020

Aggravating Zoom People

As most of you know, the Harris County Criminal Justice Center, like many courthouses around the country, is using Zoom video conferences to conduct court appearances and hearings.  With several weeks of this under our belts, certain personalities for Zoomers have emerged and Cabin Fever-induced irritability has manifested.  In the spirit of Stupid Elevator People (and its lesser-known Addendum to the Elevator People), I now present to you the Top 10 Aggravating Zoom People.

10.  Zany Background Guy -- I'm not exactly sure why Zoom provides whimsical backdrops for users, but I have to assume that it was designed for kindergarten teachers who need to talk to their students.  It's not really necessary for licensed attorneys and judges.  From those of you who look like you are broadcasting live from the Golden Gate Bridge to those of you with motivational messages as a background, it really isn't necessary.  Most conspicuous offender:  Joe Vinas with his "Shall We Play a Game?" backdrop which harkens back to 1983's obscure nerd movie Wargames.  Objection, Joe,  Relevance.

9.  The Radio Prosecutor -- This goes out to the prosecutor who wants to make sure that absolutely nothing about the Zoom video conference gives away anything about his or her personal appearance, including, but not limited to, what they look like without the makeup that they definitely will not be putting on this morning.  This prosecutor's video screen is filled only with big block letters announcing his or (usually) her name.  When you indignantly read probable cause, your name flashes across the screen like Closed Captioning from the Gods.  Most conspicuous offender:  Casey Little, whose zealous advocacy on behalf of the State, coupled with her name on the screen, makes it feel like Justice is screaming at you through a bullhorn.

8.  The "I'm Not That Great with Technology" Close Talker -- This is the lawyer who has been, um, let's just say "practicing for awhile" that is still trying to figure out what is going on with all of this technology crap.  Rather than turning up the speaker on his or her computer, he or she edges in real close to the computer screen and yells into the microphone.  It comes across as a really angry extreme close up.  Most conspicuous offender:  Skip Cornelius, who in a conference yesterday was yelling both when he was angry and when he wasn't.  The best part of this video was seeing his brother, Terry, standing over Skip's shoulder through the whole thing.  I couldn't tell if Terry was Skip's tech help or just waiting on him to go play golf.

7.  The "Hey! I just got here!" Guy --This tone-deaf Zoomer is the guy who just logged into a Zoom docket that has been going for some time, but seems unaware of the fact that his arrival is really not that remarkable of an event.  Upon logging on, he or she immediately begins talking to the judge as if the judge had been sitting there all morning just waiting for the lawyer to arrive.  I'm not sure if this is a lack of technology awareness or just simple rudeness.  Would you walk into a courtroom under normal circumstances and immediately demand attention?  No?  Then mute yourself and shut up until called upon.  Most conspicuous offender:  Every criminal defense attorney who has been licensed for less than a year.

6.  The Grey Poupon Background Guy --  This is the lawyer who has found the most sophisticated looking place to set up his or her computer so that you can admire the interior decorating.  Whether you are sitting in front of your diplomas at your office (yes, Brian Roberts, we all are licensed by the State Bar of Texas) or just want to show how nice your house is, we get it.  You are fancier than the guys in the Grey Poupon commercials.  Most conspicuous offender:  Todd Dupont, who strategically placed his computer camera facing a doorway with perfectly balanced, tasteful artwork on either side of it.  It was elegant and understated.  Less elegant and understated:  the short sleeve buttondown shirt you were wearing.  Hey, Detective Sipowicz, NYPD Blue went off the air in 2005.

5.  The Muting Refuser -- Here's a fun fact about Zoom that some people seem to have not picked up on yet.  When you are the person talking (or making noise), the software gives you the spotlight and you take up the main screen.  Kind of like in an interview via satellite on the news.  Some Zoom participants either don't know how to mute their microphones or just refuse to.  Every time they (or someone or something at their location) makes a noise, we all hear it and the camera cuts to you.  If your dogs are barking or your kids are yelling, we can all hear it and we know it is coming from you because the camera zooms in on your face.  Most conspicuous offender:  Eileen Bogar, who recently seemed to be battling allergies during a Zoom conference.  Her sniffling and sneezing led to multiple staccato cutaways to her like a Claritin commercial meshing with a 1990s Pop Art video while other lawyers were talking to the judge.

4.  The "I'm here to Socialize" Guy -- This goes out to the attorney whose business with court was brief and concluded, but still keeps on talking to the judge, prosecutor and/or other attorneys, much to the aggravation of the other attorneys waiting to speak to the Court.  Shut up, man.  Some of us need to get done with this Zoom conference so we can catch The Price Is RightMost conspicuous offender:  Murray Newman.  Sorry, everybody.  I miss y'all!

3.  The "I'm Not In Court, You Can't Tell Me What to Wear" Guy -- Sure, it's a pandemic and we are all broadcasting from home.  None of us are dressed in our Sunday Best, exactly.  I've modeled some of my finest concert t-shirts from the past decade myself.  But then there's that guy who has to take it a step too far by clearly getting dressed (or not) to show his irreverence for the situation.  Apparently, this became so out of control in Florida (go figure) that a judge had to drop the hammer on some attorneys who were appearing a little too laid back in their video appearances.  Most conspicuous offender:  Mark Lipkin, who is rumored to have appeared shirtless in a recent Zoom appearance in court.

2.  The Boring Background Prosecutor --  This one describes the prosecutor with the least imaginative background while talking.  While some prosecutors are sitting at their breakfast table or perhaps home office, the Boring Background Prosecutor has selected the blandest setting possible to set up shop.  Also qualifying under this category is the prosecutor who has selected something really boring as their artificial backdrop.  Seriously, if you are going to use a backdrop, be somewhat imaginative.  A courtroom setting and/or a view of the CJC, for instance, is lame, Ryan McLearen.  Most conspicuous offender:  Cristina Platter, who conferenced in from a white-walled room devoid of photos, artwork, windows, or color. I was concerned that perhaps she had broken into a vacant apartment for the conference call. Seriously, I've seen hostage videos filmed in locations that showed more pizzazz.

1.  The "Let Me Take You on A Journey" Attorney -- This is the lawyer on a laptop who just can't sit still while waiting for his or her turn to talk.  He or she picks up the laptop and goes for a stroll around the house.  This, as it turns out, also makes the camera cut to you and gives everyone watching the screen a severe case of sea sickness-induced nausea.  For the love of God, please stop.  I will chip in to get you a desktop, just please stop moving.  You have the option of turning the camera off for whatever reason you need.  Movement is one of those reasons!  Most conspicuous offender:  Beth Exley, who took us all on an IMAX-worthy-tour-of-her-house-as-seen-over-her-shoulder yesterday in the 185th Zoom conference.

So, there you have it.  If you have additional categories that you would like to add, please do so in the comments.  If I named you in this post, don't be mad.  I wouldn't have named you if I didn't think you could take a joke!