Tuesday, May 14, 2019

The Mad Queen

The CJC Community was shocked today by the announcement that Harris County District Attorney Kim Ogg had fired her First Assistant Tom Berg.  There were rumors that a few other employees in administrative positions had also been fired.

The move is surprising for a couple of reasons.

The first reason being that Tom Berg has a stellar reputation for being a man of integrity, dedication, and knowledge.  He is a combat veteran who has dedicated his life to the Criminal Justice Center and he is very highly respected amongst both the Defense Bar and the Prosecution.  Tom spent the vast majority of his legal career on the defense side of the aisle so I was somewhat surprised when he joined the D.A.'s Office.  I thought it was a great hire by Ogg and I said so at the time.

Tom had a learning curve at the D.A.'s Office -- largely due to the fact that his primary focus of criminal law had been on the Federal side of things, as opposed to State.  He made a few missteps at first and made a couple of statements that he would probably like to have taken back.  None of those missteps or misstatements, however, undercut that he was a fair-minded man who left private practice to help make the Criminal Justice System better.

His firing today by Ogg says a hell of a lot more about the Ogg Administration than it does about Tom Berg.

Ogg's Office has been under scrutiny lately because of the mass exodus of Harris County prosecutors who are leaving their jobs for . . .  any job but that one.  Morale is in the toilet and a job that was once the most coveted in the prosecutorial profession is now one that nobody wants anymore.  Tom Berg was not a contributing factor to that lack of morale.  He did his best to rally the troops that the Office still had left.

But Kim Ogg has always seemed to embrace the idea that it is better to be feared than loved.  There were multiple prosecutors and defense attorneys today who were comparing her method of ruling to Sunday night's episode of Game of Thrones (No spoilers here, but if you watched the show Sunday, you should understand what they are talking about).

While Ogg is running off good prosecutors in hordes and firing leaders like Tom Berg, she is busily making blatantly political hires like troubled former-HPD Chief Clarence Bradford.  More troubling is the rumor that Berg's firing has paved the way for wildly unpopular controversial Division Chief, JoAnne Musick to be promoted to the position of Trial Bureau Chief.

To my brethren and sistren in the Defense Bar, if you think your trial court prosecutors are currently hamstrung by micromanagement and stupid policies, get ready for Ogg giving JoAnne a blank check to run the whole bureau however she wants.

The firing of Tom Berg probably won't really change the day-to-day operations of prosecutors in a way that is noticeable to the general public, or even the rank and file prosecutors.  The message that is implied in his firing, however, is beyond troubling.  While Ogg has been able to waive off previous departures from the Office as people who weren't committed to her "progressive" ideas, she can't do the same with a man that she handpicked to be her second in command.  She can't do that with a man who has the integrity and reputation of Tom Berg.

Apparently, the First Assistant didn't learn the First Rule of dealing with Kim Ogg.

To disagree with the D.A. is to lose your job.


Tuesday, April 23, 2019

Sid Crowley



Former Harris County Assistant District Attorney and defense attorney Sid Crowley died last week at the age of 69.

He was a friend of mine and a semi-regular commenter on this blog since the blog started.

To me, Sid was the epitome of what a Harris County criminal lawyer was.  He was disheveled, disorganized, sarcastic, angry, fearless . . .

. . . and a phenomenal lawyer.

I met Sid when I was a baby prosecutor.  He was grizzled and wide-eyed.  My first encounter with him didn't lead me to believe that there was anything special about him.  It wasn't until much later that I mentioned something about Sid to another attorney (I think it was Pete Justin), and that lawyer's response was something to the effect of "Sid is one of the most brilliant legal minds that building has ever seen."

As I would come to find out, Sid may not have always looked like much on the outside, but on the inside, he was an intensely zealous (and wickedly brilliant) criminal defense attorney.  He had the respect of all of his peers that knew of his work.

He commented on the blog quite a bit.  Sometimes he signed his name, but other times he did so anonymously.  He wasn't hiding his opinions when he logged in under the "Anonymous" tag.  I think he just didn't feel like wasting the time it took to log in under his own name.  He would sometimes call me to follow up and explain why he commented the way he had.  He was a keen observer of the Big Picture when it came to the Harris County Criminal Justice System, and he was willing to fight every aspect of it which he believed to be unfair.

Recently, his health was failing him and he was struggling to make ends meet.  I called him to check on him, and he sounded like the Sid that we all knew and loved.  He was aggravated and pissed off, yet still in possession of his sense of humor and oddly upbeat demeanor.

A lot of us reached out to Sid to see if there was anything we could do to help him.  A special word of thanks should go out to Robert Pelton for his efforts in finding Sid the healthcare options that he needed.  As sad as I am to learn of Sid's passing, there is some comfort in knowing how many people reached out to him and let him know that they cared, loved and respected him.

A funeral mass for Sid will be held this Friday, April 26th at 10:00 a.m. in the Chapel of Divine Mercy at St. Laurence Catholic Church, 3100 Sweetwater Blvd., Sugar Land, TX 77479.  Sid's family is asking that donations in Sid's memory be made to the animal rescue group, HOPE.

Sid was a true warrior and a champion of those who didn't have anybody else to stand with them. He was an unassuming Giant in our little legal world.  I'm proud to have known him and I'm proud to have called him my friend.

I will miss him.

Tuesday, April 9, 2019

Remembering Anh Reiss

It is hard to believe that it has been over three years since Dr. Anh Reiss, wife of Harris County Assistant District Attorney Josh Reiss, passed away from myelodysplastic syndrome, a form of leukemia.

I first met Josh back in 2009 when there was a bone marrow registration drive at the CJC in the hopes of finding a suitable match for Anh.  Although the registration drive signed up many new donors, a match was not found for her.  Josh and I ended up becoming good friends and I kept up with Anh's condition as she and the Reiss family fought the disease for the next seven years.  Unfortunately, she ultimately passed away on February 26th of 2016 after a truly long and courageous battle.

Josh texted me yesterday to notify me of this editorial in the Houston Chronicle detailing Josh's efforts to have the anniversary of Anh's death officially memorialized Texas Bone Marrow, Blood, and Organ Donation Day in Texas.  The bill in the legislature to create this day is sponsored by Democratic Representative (and HCDA Alum) Gene Wu.  As noted in the editorial, it is also co-sponsored by a bipartisan list of area legislators.

Obviously, this is an uncontroversial and fantastic idea.  There are some very interesting statistics listed in the editorial regarding how many people favor the idea of donating organs and blood versus how many people are actually signed up to do so.  You can learn more about the bone marrow registry by checking out bethematch.org.

I'm proud to say that I signed up to be a blood marrow donor during a lunch break when I was a JP prosecutor way back in 1999.  You should do it, too, if you haven't already.

Good luck to Josh and the Reiss family on getting the Texas Bone Marrow, Blood and Organ Donation Day recognized, and thanks to Gene Wu for drafting the legislation to get it done.

Friday, February 15, 2019

Warrants, Snitches and Accountability

Local media is reporting some pretty shocking revelations this afternoon about the botched Houston Police Department raid that occurred on January 28th of this year.  As you probably already know, that raid left five HPD officers wounded and two citizens, Dennis Tuttle and Rhogena Nicholas, dead.  In the days following the raid, there were some early indications that there was more to the story than just a simple search warrant execution that had resulted in a gun battle.

For starters, the affidavit supporting the issuance of the search warrant had been reliant on the word of a Confidential Informant (CI) who had allegedly told the police that he had purchased an amount of heroin from a male at 7815 Harding Street.  The CI also allegedly told the police that the male at the residence had more heroin inside the house and that he had been in possession of a 9mm handgun.

Officers used that little tidbit about the 9mm to ask the magistrate who signed the warrant to authorize them to do a "No Knock" warrant, meaning that they had the right to just kick the door to make entry.  When executing search warrants, officers prefer using No Knock for two reasons: 1) officer safety, and 2) preventing the people inside the place to be searched from having time to destroy evidence.  The alternative to a "No Knock" is a "Knock and Announce" warrant, which officers don't like.  A police officer politely knocking on the door of a drug house and announcing he going to come inside is usually the cue for drug dealers to start flushing their product down the toilet.

Unless a warrant articulates a particularized need (normally officer safety) to make entry without knocking, the presumption is that they must do a "knock and announce" before making entry.  Usually, officers point out the danger to themselves by describing their belief that a person with a gun is inside the place to be searched.  Since the vast majority of people who deal drugs out of locations are armed, it should not be surprising to know that "No Knock" warrants are quite common in narcotics search warrants.

So, when the affidavit supporting a No Knock entry into 7815 Harding Street reported the individual inside the residence had a 9mm, that probably didn't seem to be too big of a stretch of the imagination to the magistrate signing the warrant.  As far as warrants go, there was nothing facially out of the ordinary about the one in this case.

But when the shootout was over and the smoke had cleared on January 28th, the reliability of the information in the search warrant came into question because there were two key things missing from the evidence recovered:  a 9mm handgun or any trace of heroin.

My initial reaction to this lack of evidence to support the CI's claims in the affidavit was that it must have been a lying CI.  CIs, as a general rule, aren't the most reputable of people.  In many cases, a CI has been charged with his or her own charges and are "working a contract" with narcotics officers.  "Working a contract" means that they have a signed agreement with the D.A.'s Office and narcotics officers that they will provide information resulting in the arrests of other drug dealers.  Those contracts are generally quantity based -- meaning that the CI will provide information that leads to the recovery of a set amount of drugs (like a kilo of cocaine, for instance).

Because of that, CIs have a tremendous amount of motivation to exaggerate what they say to their narcotics officer "handlers."  By necessity, CIs interact with suspects outside of direct supervision from their handlers.  They typically don't wear bodycams or "wires" that could be discovered when they make purchases.  They often go inside premises to make the purchases and their handlers lose a direct line of sight on them.  To bolster the CI's credibility, officers search them for drugs before sending them inside to make a purchase.  This assures that the CI isn't planting his or her own evidence.  The officers also provide them with marked money to make the purchase, in the hopes that once an arrest is made, the target suspect will have that marked money in his or her possession.

Other than those two minor safeguards, however, there is no real accountability in how an undercover drug purchase is described by a CI to an officer.  There is no verification of whether or not a suspect is really seen with a gun.  There is no verification of whether or not the CI really saw more drugs inside the premises.  All an officer can attest to in an affidavit for an application for a search warrant is to attest that the CI has provided good and reliable information in the past.

So, when there was no heroin and no 9mm recovered on Harding Street, I figured that HPD narcotics had been taken for a ride by a dishonest snitch.  In this post, I predicted that an investigation into the botched raid would lead to some embarrassment for HPD, but probably nothing criminal.

Today's revelations may have me eating my words about that.

Houston Police Chief Art Acevedo today announced that the "confidential informant" utilized by HPD Narcotics in this particular raid didn't actually exist.

According to the Houston Chronicle, Officer Gerald Goines (who was severely wounded in the raid) provided investigators with the name of the CI who had provided him with the information that he used to get a search warrant.  In the subsequent investigation, that CI denied having ever gone to the Harding Street location or buying drugs there.  Additional interviews with other CIs utilized by Goines found that they had no knowledge of drug activity on the property, either.

More disturbing, according to the Chronicle article is that another one of the narcotics officers, Steven Bryant, had admitted to investigative officers that the heroin allegedly provided to him and Goines by the (apparently fictional) CI was actually heroin that he had gotten from Goines' vehicle.

So, to summarize, a married couple (and their dog) were shot to death by Houston Police Officers who entered into their house with a search warrant that was obtained on the word of a non-existent snitch and planted heroin that came directly from the officer who wrote the warrant.

This is absolutely stunning to me.  In my twenty years of being involved in the Harris County Criminal Justice world, I've seen some dumb mistakes, but this level of corruption is like something out of a movie.

It looks like Joe Gamaldi was a little premature in using this incident to give his "putting dirtbags on notice" speech.

The outlook for Goines and Bryant is pretty grim.  If it is proven that they intentionally lied in an affidavit for a search warrant, that would be a felony.  If a felony leads to a death, there's an argument to be made that they committed a couple of felony murders.

The bigger concern for all agencies who participate in undercover drug buys is that this incident calls into question all undercover buys leading to search warrants.  If a Confidential Informant's reliability was cause for concern, the possibility of rogue officers fabricating CIs and planting evidence is devastating.  The bottom line is that all search warrants are signed off on based on an officer's credibility as he or she relates the facts to a magistrate.  There is nothing more required to verify the veracity of the information contained in the supporting affidavits.

It is a fairly common practice in drug cases for defense attorneys to file a Motion to Reveal the Confidential Informant.  Those confidential informants are usually protected from being identified unless otherwise ordered by a judge.  In my experience, those motions are rarely granted.  My suspicion is that in the aftermath of the Harding Street raid, more and more of these Motions are going to be filed, and Judges are going to feel additional pressure to Order those CIs to be revealed.  If that becomes the norm, you are going to find less and less people willing to work as CIs -- regardless of the legal benefit to them.

The aftermath of the raid on Harding Street is going to have a far-reaching effect that goes way beyond what ultimately happens to Goines and Bryant.  There will be calls for more verification
of information before the signing of warrants, but finding a way to have that verification and not compromise an investigation will be no easy task.

Today's announcement from Chief Acevedo is just the beginning of the fallout that will come from the events of January 28th.  Police officers, prosecutors, defense attorneys, and judges can expect a lot of changes to the way these things are done in the future.

Unfortunately, those changes will be coming too late for Dennis Tuttle, Rhogena Nicholas, and the officers injured in the raid on Harding Street.

Wednesday, February 13, 2019

Awkward Family Photos: Law School Edition

Since I'm a firm believer in the premise that you shouldn't make fun of others unless you are willing to make fun of yourself, I will share the following awkward memento.


This is an awkward screen grab from an even more awkward video from my 1998 Criminal Trial Advocacy class at UH.  In this exercise, I'm trying (and failing) to learn how to admit a photograph into evidence.

My sponsoring witness is David Cunningham.

The pained looking judge on the bench is George Murphy.

I think I would rather pass a kidney stone than watch how bad I was back then, but I have to give major kudos to Dave, George and (not pictured) Judge Belinda Hill.  This was really a wonderful class that gave some very real and very practical advice to aspiring trial lawyers. 

It's been 21 years since this picture was taken and I'm honored to be able to say I've gone on to practice alongside (and in Judge Hill's case, in front of) these great lawyers. I'm also glad that I apparently got over the nervous habit of slapping my hands to my sides while talking as if I were some sort of spastic penguin.

I just wish someone had told me and Dave to go ahead and shave our heads back then.