Wednesday, August 16, 2017

August 16, 1999

L-R:  John Jordan, Peter DeLeef, Adam Brown, Earl Musick, Brad Hart, 
Bill Exley, Robert Summerlin, & Me

It's hard to fathom that 18 years ago today I first entered the Harris County Criminal Justice arena.  I remember it like it was yesterday.

I was 26 years old.  Engaged to a girl named Lisa who, two months later, would become the first in a series of wives.

Although I had attended law school in Houston, I had moved back to Bryan/College Station after taking the February Bar Exam because I didn't have a job lined up.  I worked as a paid intern (for $6 an hour!) at the Brazos CountyAttorney's Office while I waited on the Bar results.  When I passed, I got invited to apply with Harris County, and I moved back to Houston the week before I started.

Chance Bolton, a childhood friend of mine, had recently gotten out of the Navy and was going to school in Houston.  He and Lisa and I moved into an old house I was renting in Timbergrove.  None of us had any money.  At the time, I was the only one who had a job lined up.

I was incredibly nervous getting ready for work that first morning.  I didn't really know anyone that worked there. I don't think I even knew where I was supposed to park.  The D.A.'s Office was still in the old building at 201 Fannin.  As I headed out the front door of the house towards my car, I heard the door open behind me.  It was Chance.

"Hey Newman," he said, strolling out into the front yard.  He extended his hand.  "I just wanted to wish you good luck on your first day as a prosecutor."

It was both an awkward and sweet moment between good friends.  Mainly it was awkward because he was only wearing his boxer shorts.  I thanked him and then implored him to go back inside before any neighbors got the wrong idea about our relationship.

I got to the D.A.'s Office and met with Renee Magee, who was the Deputy Dawg of Misdemeanor at the time.  I had done an academic internship with her after my second year of law school in Judge McSpadden's court and she had put me in touch with the Office once I passed the Bar.  Although I was starting out working in the Justice of the Peace Division, Renee took me over to see how the county courts worked.

I remember an attorney coming up to me in court and asking me, "Are you the attorney of the day?" Not familiar with the local terminology, I thought he was making some sort of crack about the longevity of young prosecutors.  I gave him a dirty look and he walked away, confused.

That afternoon, I had my first exciting JP docket in front of Judge David Patronella.  I got lost getting there, and when I first arrived, Adam Brown was already talking to people on the docket.  I introduced myself to him and then I sat down.  I looked at the huge bucket of speeding tickets and other traffic violations and I realized I had absolutely no idea what I was supposed to do.

"Um, hey," I said to Adam.  "What am I supposed to be doing?"

"You'll have to figure it out," he said.  "That's why they pay you the big bucks."

I thought Adam was maybe the biggest asshole I'd ever met in my life.  Luckily, the clerks helped me, because I had no clue.  I was miserable.

It was a terrible first day.  I remember going home, consoling myself with the plan that I was going to honor my 3-year commitment to the Office and then go back home to Brazos County and hopefully run for District Attorney there someday.

My, how plans change.

Over the next few days, I'd meet the other guys in JP.  I met Bill Exley, who sternly warned me to never jaywalk, because Mr. Holmes would fire you if he ever caught you doing that.  I met Robert Summerlin, who would become my practical joking arch-nemesis for years to come.  Peter Deleef was the congenial and very odd guy from South Africa.  John Jordan, who bore a striking resemblance to NASCAR racer Jeff Gordon, yet was the slowest driver I had ever seen in my life.  Earl Musick, the retired HPD cop, who entertained us with stories of the old days.  And my first chief, now-Judge Brad Hart.

Over the next months, the seven of us and our chief became an extremely tight-knit group (even Adam).  Earl came up with the nickname of The Magnificent Seven, which ultimately got shortened to The Seven.  We all thought we were awesome.  I'm pretty sure the rest of the Office thought we were arrogant jackasses.  I feel that way because a lot of other prosecutors told us we were a bunch of arrogant jackasses.

But man, we loved being prosecutors.

L-R:  Me, Adam, Bill, Peter, John & Brad at one of my 
many bachelor parties.

It's funny how quickly time goes by.  It doesn't seem like it was 18 years ago when I first started, but so much has changed. I never talk to my friend Chance anymore. I got divorced from that first wife.  Remarried.  Had a kid.  Divorced again.  Remarried again. (Hopefully, I'm holding steady on that front.) Had another kid. (Hopefully holding steady on that front, too.)

Eventually, the majority of "the Seven" left the D.A.'s Office.  The only one of us still working there is John.  Brad is Judge Hart now, and the rest of us all went on to private practice.  I saw Exley yesterday in court, and I told him he looks a year older every time I see him -- although I knew I wasn't really one to talk about aging poorly.

Every once in awhile I'll get asked if I would ever go back to prosecuting.  I say I don't really miss the job itself, but I miss the camaraderie.  I'm always glad when I see younger prosecutors hanging out with each other these days because it reminds me that no matter how many times the regime changes, that camaraderie is still there.  

There have been a lot of ups and downs over the last 18 years, but, man, I wouldn't have missed it for the world.  Those early years were some of the best.

Hell, I even enjoyed hanging out with that asshole Adam Brown.

Me and Adam in New Orleans - October 2002

Friday, August 11, 2017

Cop Versus Prosecutor

The headline coming out of The Coastal Bend Chronicle sounded pretty damning.
Assistant County Attorney Makes Implied Threat on Secret Video Recorded by Officer.
It's a story out of Aransas County, but the headline got my attention when I saw that a defense attorney out of Dallas had shared it on her Facebook page.  It further garnered my attention when I saw that my friend (and fellow defense attorney and native Bryan-ite) Eddie Cortes was commenting on the article in defense of the prosecutor.  Eddie is a die-hard defense attorney, and doesn't throw around support for The Government lightly.

I then read the article and realized that the prosecutor in question is former Harris County Assistant District Attorney Kelsey Downing.  I knew Kelsey when she was a prosecutor here.  We are friends on Facebook, but we never socialized together.  I dealt with her in court on a case or two and always found her to be above-board and professional.  The article made several accusations about her that I found to be shocking in light of my experiences with her.  I watched the entirety of the video to see if it comported with what the article accused her of.

From the news article:
Downing begins the conversation addressing the writing of criminal offense reports, but quickly changes the topic to a personal issue which she says exists between her and the officer.
Well, that's sort of accurate but it's misleading.  The video starts with City of Rockport Police Officer Chad Brooks' body cam rolling in the parking lot of the Aransas District Attorney, where Kelsey serves as First Assistant.  That's your first sign that there's a pre-existing problem between the officer and the D.A.'s Office.   Officers and prosecutors typically are copacetic with each other.  The prosecutor is the legal advocate for the case the officer filed.  Some relationships between cops and prosecutors are stronger than others, but when one side is taping the other, the relationship has clearly fractured badly.

So the fact that the Officer Brooks turns on his video before he even hits the door is pretty telling. Perhaps the biggest flaw that I find with the article is that it characterizes this conflict as a "personal issue" but it doesn't make any attempt to flesh out what that issue is.  I'll write more on that a little further down, but suffice it to say that the "issue" is clearly a professional issue, not a personal one.
Downing spends the rest of the 16-minute recording criticizing the officer's criminal offense reports, telling him they have too much detail and are too long.
That's just a complete misstatement.  The video is sixteen minutes long, but Kelsey's issues with the officer's report writing are largely confined to the beginning of that.  She tells Brooks that he spends too much time self-aggrandizing his personal qualifications and takes issue with him putting factory specifications on a pellet gun in the report.  She tells him that a defense attorney will embarrass him on the stand for this type of over-explaining.

Okay, maybe this is a little over-critical on Kelsey's part, but she moves off of the topic and begins talking about the facts of the case.  As Eddie pointed out in his comments on the article, this is called "woodshedding the witness," and it is absolutely standard practice for trial preparation.  Every prosecutor should absolutely meet with their witnesses and that's what Kelsey and Brooks are doing.

But this woodshedding session is so painful to watch.  Kelsey's questions for Brooks are answered with short replies that are reminiscent of when I ask my kid why he got in trouble.  He isn't evasive, but he's also not helpful.  At one point, Kelsey tells Brooks that she needs Brooks' wife's phone number because she's a witness on the case.  (Side note:  It is never explained why on earth an officer's wife is a witness in a drug bust case, but whatever.)  Rather than give Kelsey the number, Brooks points out that she knows his wife is a court reporter and she can get in touch with her that way.

There is clearly not a lot of love between prosecutor and cop at this point, but in my opinion, Kelsey is trying to be conciliatory.
Citing her lengthy experience as a trial attorney, and her participation in over 70 trials throughout her career, Downing told the officer she had the experience to make these type of determinations.
Um, okay, she's a former Harris County prosecutor and she's the First Assistant.  She has every right to cite her experience in justifying why her trial recommendations are sound.
As the conversation between the two comes to an end, the conversation turns hostile after the assistant prosecutor implies she can give Brooks a bad work reference to other law enforcement agencies if she so chooses. 
That's super misleading.  What she actually says is that she had given a good recommendation to another agency about a different officer and then tells Brooks that she would like to be able to do the same for him.  That's a conciliatory statement that the article unjustly characterizes as implying "she can give Brooks a bad work reference."

As I mentioned earlier, the article's biggest flaw is its failure to make any attempts to uncover why there is so much tension between Officer Brooks and Kelsey.  Fortunately, Brooks' video explains that.

Towards the end of the video, Kelsey points out that Brooks is not allowed to blurt out a Defendant's criminal history when he's testifying.  The wording of the conversation indicates that the origin of this issue is because Brooks had done exactly that in a previous trial.

For those of you who don't practice criminal law, during the guilt/innocence phase of a trial, the Defendant's criminal history is not to be mentioned unless there has been an exception established under the law.  Understandably, police officers aren't fond of this rule.  They would love nothing more than for the jury to be aware that the guy sitting there claiming innocence actually has a rap sheet a mile long.  Experienced cops know that they can't blurt out anything about priors.

Inadmissible testimony about a Defendant's priors will almost certainly lead to an automatic mistrial.  If the judge feels that the infraction is severe enough, under certain circumstances, they could make a finding that the inadmissible testimony was the result of prosecutorial misconduct and bar the case from being retried.

The end of the Brooks video is Kelsey trying to impress upon Officer Brooks that he needs to follow direction and he needs to follow the law.  From what I viewed on the video, it seems that Brooks is pretty non-committal about promising any such thing.

If that is truly the case, then Officer Brooks is a fool.

When I was a prosecutor, I tried to remain cognizant of the fact that the streets were the police officers' arena.  I tried not to second guess how they did their jobs in the line of duty unless it became absolutely necessary.  But on the flip side of that, I always felt that the courtroom arena was mine.  I respected their side of the street and I expected them to respect mine.

What I viewed in Officer Brooks' video was Kelsey Downing doing her best to politely inform an officer that he needed to listen to her advice while testifying.  The Coastal Bend Chronicle grossly mischaracterized what happens on the video.

Disappointingly, some in the Defense Bar have pounced upon the article without really analyzing what the video shows.  I've seen it characterized as a prosecutor criticizing and trying to influence a poor police officer.  In fact, she's a prosecutor who is trying to make sure a witness that she intends to sponsor in trial will follow the law and the rules of the court.  As noted in this article, the Aransas County District Attorney's Office ultimately lost faith in Officer Brooks' ability to follow those rules.  The Office no longer sponsors him as a witness, nor prosecutes cases in which he is involved.

At the end of the day, what more could the Defense Bar ask of a prosecutor with a cop that doesn't seem to want to follow the law?

The Name is Coyne. Brian Coyne.

My friend and fellow defense attorney Brian Coyne is a smooth operator.

In addition to being one of the best trial lawyers I've seen try a case in the CJC, he's also a very sharp dresser.

His suits are custom tailored from Jos. A. Banks.  His sunglasses are the most expensive that the Sunglass Hut kiosk at Willowbrook Mall has to offer.  His shoes are ordered exclusively from Foot Locker's business attire section.  His briefcase was the most expensive item for sale in Washington D.C.'s Spy Museum gift shop.

Other than losing his umbrella from time to time, Brian pretty much has his stuff together.

Except today.

Today was a bad fashion day for Brian.

Saturday, August 5, 2017

The Inevitable Tragedy

One of the issues that I have not written about on the blog over the past several months is the epic battle being waged in the Federal Courts over the Harris County Bail Bond System.  It isn't because I don't find the issue important.  It is tremendously important and will have far-reaching consequences for the way all cases are handled in Harris County.

I didn't write about it because I didn't have a firm grasp on all of the details involved.  The information that I had on the issue, I largely learned from reading Meagan Flynn's articles in the Houston Press about the lawsuit.  I also heard concerns from some judges and prosecutors about what would happen after U.S. Chief District Judge Lee Rosenthal declared Harris County's bail bond system to be unconstitutional.

The primary criticism against Judge Rosenthal's ruling was that it basically handed unsecured bonds to people who were not likely to come back to court.  Since the ruling dealt with misdemeanor cases, and my caseload primarily consists of felonies, I wasn't really all that affected.  I did presume that a bureaucratic nightmare was about to ensue as the number of bond forfeitures were probably going to skyrocket in the County Courts.

And, I've heard, anecdotally, that this prediction was accurate.  I had one prosecutor tell me that in the course of one day, over 100 defendants had bond forfeited while on their unsecured bonds.  I don't know if that's true, but I wouldn't find it all that surprising.

The other concern to those who opposed Judge Rosenthal's ruling was the danger to society created by giving undeserving people unsecured bonds.  Somebody who hadn't previously been entitled to an unsecured bond was going to hurt somebody while out on bond.  I agreed that this scenario was bound to happen eventually.  It was just a matter of time.

As it turns out, it didn't take much time at all.

On July 5th, 2017, Jonathan Mendez was arrested for the offense of Driving While Intoxicated.  His criminal history was lengthy, consisting of many felonies and assaultive offenses.  On a previous felony case, he had a bond forfeiture thrown in for good measure.  Based on this, his bond was initially set at $5,000.

But, Mr. Mendez couldn't make that bond, and the Sheriff's office was forced to release him on an Unsecured Bail Bond on July 6th.    Mr. Mendez signed the paperwork and agreed to appear in County Court at Law # 12 on August 16th.

Unfortunately, on July 28th, Mr. Mendez was driving with a female passenger, Victoria Reyna, when he was involved in a minor accident.  According to court documents, he fled the scene of the accident at a high rate of speed, but lost control of his SUV.  He crashed into a tree and a utility pole, killing the female riding in the front passenger seat of Mr. Mendez's vehicle.

Following a blood test result, he was charged with Intoxication Manslaughter.

Like I said, it was just a matter of time before something like this happened.  That being said, it doesn't mean that Judge Rosenthal's ruling was wrong.  The entirety of the bonding system in Harris County has needed reevaluation for quite some time. The bonding system should never be used to hold someone in custody to induce a plea, nor should it be used in a way that penalizes the poor.   Both of those things were happening with regularity before the ruling.

But there are downsides to every tough decision, and tragedies will occur, like they did in this instance.  The bond system needs to be reevaluated and quickly, but its new incarnation needs to focus on those issues that bonds are actually designed for -- assuring that an accused appears for court and protecting public safety.  That plan is currently in the works for Harris County.

Unfortunately for Victoria Reyna, its arrival will be too late.

The New Trace Case Policy

The Harris County District Attorney's Office under Kim Ogg has finally rolled out the "No Trace Case" policy that many of us have been expecting since she took office on January 1st of this year.

The policy dictates that the Office will no longer file State Jail Felony Possession of a Controlled Substance charges on cases where only residue or "trace" amounts of the drug are recovered when a person is arrested.  These types of cases are most commonly filed when a person is arrested still carrying a crack pipe, but the crack has long since been smoked.  Under the law, felony charges may be brought if there is a detectable (as opposed to usable) amount of drugs such as heroin, cocaine, or meth recovered.  As a matter of contrast, for a person to be charged with the misdemeanor charge of Possession of Marijuana, there must be a usable amount recovered.  There is no such requirement for the "harder" drugs that fall in the felony level, and it is not unusual to see charges found on drug cases where the amount in question is .001 grams.

The decision of whether or not to file Trace Cases is a controversial one.

The arguments in favor of filing them typically come from police officers who rightfully point out that residue cases are evidence of larger amounts of the drugs that have already been consumed.  The police further believe that the cases help keep those troublesome junkies off the streets, which will trickle down into a reduction in burglaries, rapes, and other violent crimes.  They also point out that drug addicts use the drugs almost immediately upon acquiring them, making it virtually impossible to catch them with their usable amounts.

I've gone on record before as being against the filing of Trace Cases.  (From the Intellectual Honesty Department, I supported my arch-nemesis Pat Lykos' policy when she stopped filing them in December of 2009.)  It isn't that I'm in favor of smoking crack.  I've never tried it myself.  For me, it is an issue of manpower and resources.  I remember that shortly before the Lykos policy, I was driving on Beltway 8 with my oldest son when a car sideswiped the rear panel of my 4-Runner and kept on trucking.  I got a license plate number and called the police.  It was the middle of the afternoon on a weekday, but no officer was called out or responded.  About six hours later, the police called back to ask if I was still at the scene.

But, the crack pipe cases were still being filed wild fire.  I just believe it is a better use of resources to focus on other crimes than these.  I know a lot of people in law enforcement read this blog and are going to disagree with me on this.  I'm bracing myself for the backlash.

On a lighter note, I do think that it is rather amusing that the notice of the new policy did not come in the form of a press release or email to All Prosecutors.  Apparently the Ogg Administration was doing a "soft roll out" by just leaving notes for the prosecutors working intake.

"Due to budget cuts, we are using new methods 
of sharing officewide memos."

Expect there to be a lot of complaining from the police unions and Ogg opponents who will make the argument that Ogg is "legalizing drugs."  Don't buy into that argument.  Police officers have the absolute right to arrest someone for possessing a crack pipe (or other residue holding item) and file a Class C Misdemeanor of Possession of Drug Paraphernalia case.  

It's still a crime, just not a felony.