Thursday, November 17, 2016

GUEST POST: Trepidation and Chronophobia …

Editor Note:  I got a request from a friend in law enforcement who asked to write a blog post focusing on changes at the HCSO.  

I have many friends who walk the halls of the CJC, conducting their daily business.  Some always seem to have a smile on their face, and some have that eternal scowl.  However, recently, I noticed that people’s nonverbal cues have become disheartening.  I work for another part of the justice system, and have been a part of the justice system for over 20 years.  I have been a part of quite a few regime changes, and have been an onlooker to several regime changes at the CJC.  

Murray has been quite eloquent, and has usually been on-point, in regards to the politics at the CJC.  However, even he realizes he is not an expert in the politics of the law enforcement side of the CJC.  So, I decided to step up to the computer and write some comments.

When Adrian Garcia took office years ago, those two words from the beginning of my post were very prevalent.  The Sheriff’s Office had gone through many years of the likes of Johnny Klevenhagen and Tommy Thomas.  The agency had gone through some tough times, with the fiscal problems with Commissioner’s Court, to a string of deputies losing their lives on duty.  But, the agency had some good times as well, through most of Sheriff’s Thomas’ tenure.  But, when Garcia took office, nobody had a clue that there were going to be as many problems that actually materialized.  From low morale to jail problems, budget cuts, to the department becoming more top-heavy than it had ever been, I watched as the HCSO went downhill, and fast.  But, then Garcia went to run for mayor and Ron Hickman was appointed.

Now, the general consensus was that we couldn’t do any worse than Garcia, even though the rank and file knew that Hickman came over from Precinct 4 Constable’s Office with some baggage.  But, in the short amount of time that Constable Hickman became Sheriff Hickman, I saw firsthand that many of the problems from the previous administration started to change.  People were generally happy to be a part of the Sheriff’s Office.  With the pending election, many employees of the HCSO started saying, not if, but when Hickman gets elected, the department will finally get back on the path to becoming one of the top law enforcement agencies in the State of Texas.  But, as Lee Corso says on Saturdays, “not so fast my friend.”  Hickman lost to Ed Gonzalez.  

Now, with the election over, I was immediately drawn to the following quote, “Those who don’t learn from history are destined to repeat it.”  For the rank and file of the Sheriff’s Office, we believe that we are back in 2008, with the promises being the same and the results starting to look more disastrous.


So, now when those of you who read Murray’s wonderful column, and thank you Murray for letting me hijack it for a time, walk through the CJC and see a deputy with a long face and a disconcerting scowl, you now have some insight into our plight.  So, for all my friends in the CJC, on both sides of the table, as well as my friends, brothers and sisters who wear the badge, please don’t forget that we are all in this together, whether you want to believe that or not.  Hopefully, we have learned from the past.

Wednesday, November 9, 2016

What Happens Now?

Walking through the halls of the CJC this morning brought a very unwelcome feeling of deja vu.  Eight years have passed since November 5, 2008, but there were many unpleasant similarities between that election's "morning after" and today.

To be fair, there were some minor differences, too.  In 2008,  we prosecutors had known since May that someone from outside the D.A.'s Office would be taking over -- we just had to wait until November to find out exactly who that person would be.  We had a politically neutral caretaker in the form of Ken Magidson, who was there to facilitate the incoming Pat Lykos Adminstration, and he had been a calming force in the transition.  We had been through so much turmoil earlier in the year that Lykos' victory seemed somewhat anti-climactic.

And then the morning after arrived.

The rumors started swirling immediately.  Rumors of who was getting fired.  Rumors of who was getting hired.  Rumors of demotions, promotions, and policy changes.  Rampant speculation was asserted as fact.

We learned who our friends were.  There were plenty of defense attorneys who could not have been more kind, sympathetic and supportive to all the assistant D.A.s who were facing an uncertain future.

And then there were the jackasses.

The ones who floated rumors of a "list" going around of all the people sure to be fired by Lykos.  The ones who gleefully spoke loudly in the courtroom of which prosecutors they couldn't wait to see fired.  And then there were the mega-jackasses, who insinuated that they had a significant amount of influence over what prosecutors would be placed on "the list."  I even had one defense attorney come tell me how pissed off he was that Lykos wasn't firing a prosecutor that she had promised to fire when he (the defense attorney) had donated to her campaign.

And then came the Gatekeepers to the Defense Bar.  These loud-mouthed attorneys warned that prosecutors who had previously crossed them would be neither welcome nor successful if they found themselves attempting to become a defense attorney.  Apparently they felt that they were privy to some sort of Star Chamber that had the exclusive right to grant passage to the defense bar.  Some said that a seasoned prosecutor's tenure at the D.A.'s Office was a worthless attribute if one wanted to be a defense attorney.

I've now been a defense attorney for closing in on half of my legal career, and I still get the occasional jab about not having let go of my prosecutorial roots.  I have a large number of clients, past and present, who would beg to differ.

All of this was so very reminiscent of the popular kid in grade school who felt threatened when a new kid moved into the class.

It was silly, stupid and unbecoming of a grown-up -- let alone a lawyer.

I bring this up, because I saw all of this bullshit happening again in the courthouse today and it annoyed the crap out of me.

The reality is that some of the current prosecutors will lose their jobs during the transition from the Anderson to Ogg Administration.  If you find yourself having to start over on January 1st, it will suck and it will be scary. It will also pass.  You will find yourself stronger and wiser for the experience.

Trust me on this.  I have a little bit of knowledge on the topic.

There will be defense attorneys who will be glad to help you get your feet back under you and explain the ropes.  You will never forget their kindness and they will become people you consider your mentors.  I have a laundry list of people that I feel eternally indebted to.  Pat McCann, Dan Cogdell, Charles Thompson, Charley Davidson, and Mark Bennett (yes, I said Mark Bennett) are just a few that immediately come to mind.

You will also always remember the ones that weren't kind -- just like you remember that schoolyard bully from grade school.

Most important, if you do decide to become a defense attorney, do it with pride and dedication.  It won't take long before you realize how much you generally like your clients.  Sure, there will be the ones that piss you off royally, but the vast majority are decent people, scared shitless of the criminal justice system, that need and deserve your help.  You will have the power and ability to change (and sometimes save) lives.

If none of what I've said thus far makes you feel better, then let me share, once again, the obligatory story of my last day at the Office.  Misery does, in fact, love a bit of company, I have learned.

In December 2008, I knew that my contract as a prosecutor wasn't going to be renewed by Pat Lykos.  I was going through a contentious divorce and wasn't getting to spend Christmas with my then-3-year-old son.  My parents were spending Christmas in Florida and my sister and I weren't speaking to each other at the time (bygones).  I looked forward only to a lonely Christmas with my dog and I planned on my final departure from the Office to be at noon on Christmas Eve.

And then Ken Magidson fired me (for the second time) at 9 a.m. that morning because of things written on this blog.

I went home to my sad and pathetic bachelor apartment, wrote a blog post about getting fired, and then got in the car with my dog to just get the hell out of town.  As I slowly navigated through stop and go traffic on Highway 290, I checked my e-mail on my Blackberry.  Much to my surprise, I had an email from Chuck Rosenthal, who had apparently read my blog post about getting fired.  It read simply:
You were never my favorite prosecutor, but at least I respected your First Amendment right to write what you wanted.
At some point, the absurdity of the situation became so much that I just started laughing.

To be honest, the first day walking into the CJC as a defense attorney felt unnatural and awkward.  It took me at least a month to stop offering State's Exhibit 1 during pleas.  But each day got better than the one before.  I came to realize that although it would have never been my choice to leave the D.A.'s Office, it ultimately became one of the best things that could have ever happened to me.

But I won't ever forget those days in between.  My heart goes out to those of you at the Office dealing with uncertainty.  I promise you it gets better and no matter how it feels right now, it will be okay.

As always, if any of you need anything -- from help, advice, or just a sympathetic ear, call me.

Tuesday, November 8, 2016

2016 Election Post-Mortem

I think it is safe to say that almost everyone who practices within the Harris County Criminal Justice System is disappointed in at least some element of how the 2016 election turned out this year.

For some time now, we've known that a Democratic sweep was a very real possibility, but I don't know that any of us realized what a tremendous margin was coming.  When you lose judges like Kristin Guiney, Ryan Patrick, Stacey Bond, and Brock Thomas, it becomes pretty clear that our little world is ultimately controlled by voters who know nothing of the judges' reputations or what they've done to make this System better.

Devon Anderson's loss was a foregone conclusion.  Even if she had been in the good graces of the Republican Party, it wouldn't have saved her from the ultimate outcome of what happened tonight.

The straight ticket voters who pulled the Democratic lever (as of this writing) outnumbered the Republican straight ticket voters by over 65,000 votes.

Once again, we are sadly reminded that partisan politics have absolutely no place in the Criminal Justice System.  

My personal belief is that a backlash against Donald Trump is what sunk Republicans in Harris County.  The irony (as of this writing) is that it appears he's going to succeed in his race, while he left a trail of destruction in Harris County.

I would say that I'm stunned, but this is a repeat of 2008 -- just with more dramatic margins.  The more interesting analysis will be whether or not Harris County voting blue is a permanent thing.

Sunday, October 23, 2016

It matters. It matters not. Or does it?

With less than 24 hours before the start of Early Voting for the 2016 Election, Harris County District Attorney Devon Anderson found herself, yet again, receiving some negative publicity that her opponent Kim Ogg could capitalize on.  All of the local news outlets were reporting about an interview Anderson did on a local podcast, The American Chronicles, with Vlad Davidiuk.

About nine or ten minutes into the interview, Davidiuk brings up the fact that many of Right Wing voters are unhappy with Anderson over the indictments of two pro-life filmmakers who were attempting to film representatives of Planned Parenthood breaking the law.  Acknowledging that the Right Wing voters are unhappy, Anderson responds by saying:
They have a problem with me on one, maybe two cases.  When they get a liberal, pro-choice Lesbian District Attorney, I wonder how many cases they'll have problem with with her.
Kim Ogg, of course, pounced on the statement and accused Anderson of stating that Ogg was unqualified due to the fact that she was a lesbian.   Courthouse people blew up Facebook battling back and forth over whether or not the statement was homophobic or not.  The comments even drew some national attention.

First off, let's just be very clear here that Anderson never utters the word "unqualified" in this statement, at all.  From an intellectual standpoint, she is merely pointing out that the hard core Right Wing people who are unabashedly conservative, pro-life, and homophobic anti-gay marriage are going to be even less happy with Kim Ogg at the helm because she is all of those things.  She's touting how she is the true Right Wing conservative that they should vote for, and a couple of bad court-thingies shouldn't stop that in the face of such a liberal demon.

If she had stopped her sentence after the words "pro-choice," then nobody would have batted an eye.  I'm reminded of one of my comedy favorites, Mike Birbiglia, who does a routine on "What I should have said was . . . nothing" when detailing a heated situation that his own words got him into.  But, instead, she uttered the word "lesbian" and all hell broke loose.  It wasn't relevant and it opened her up to all the criticism she is getting.

But did she use the word to insinuate that Ogg was unqualified?

No.

And Anderson's Administration certainly does not reflect that she thinks a person's sexual orientation has anything to do with their qualifications as a prosecutor.  Without identifying anyone in particular, it is fair to say that the Office employs numerous gay and lesbian prosecutors.  They aren't discriminated against for their sexual orientation and they seem pretty damn happy to be working for Devon Anderson.

So, it shouldn't matter that Devon Anderson said the word "lesbian" on the radio when describing Kim Ogg, right?

Well, not so fast.

She may not be calling Kim Ogg unqualified for being a lesbian, but she sure is dropping that fact to curry favor with those far Right Wing voters that are so mad at her.  It's absolutely not relevant, but she attempted to make it so.  That's kind of like not actually being racist, but pretending to be so that you can land the Supremacist vote.

That's a pretty sad testament to the State of the Harris County Republican Party, isn't it?

Unfortunately, for Anderson, dropping the L-bomb is turning out to be a lose-lose situation.  Not only did it garner the negative media attention, but Republican web sites like Big Jolly's are showing their mock outrage, too.

Too little bigotry, too late, apparently.

Thursday, October 20, 2016

The 2016 Harris County District Attorney Race

It's hard to believe that it has only been four years since the 2012 election, where Mike Anderson easily defeated Lloyd Oliver by 596,502 votes to 543,239.  So many things have happened since that night in November that it seems to have filled at least twice that amount of time.  During that election, 406,991 voters pulled straight ticket Democrat as opposed to 404,165 for Republican.  About 386,415 people actually gave more thought to who they were voting for and didn't go the straight ticket route.

The 2016 race for Harris County District Attorney could not be more different than 2012.  Mike Anderson was an even-tempered retired judge with virtually no controversy attached to him.  Lloyd Oliver was an unqualified buffoon who had inexplicably won the Democratic primary over a much more qualified candidate.  This year, Republican Incumbent Devon Anderson has several professional scandals attached to her Office and is not known for her calm demeanor under pressure.  Her Democratic opponent, Kim Ogg, is a qualified politician with an impressive resume and some pretty powerful backing.

The two have faced off before in 2014 in a special election to fill the unexpired term of the late Mike Anderson.  In that contest, Devon Anderson defeated Ogg by about 43,000 votes (354,539 to 311,648).  Although that was a decent margin, it was worth noting that most of the Republican judges in the criminal bench races all won their races by margins of over 60,000.  To some of us amateur political scientists, that closer margin seemed to indicate that Ogg had a decent number of crossover voters, which isn't surprising considering her resume with CrimeStoppers and her father's political and civil law ties.

As most of us know, there's a big difference in Harris County elections that occur in Presidential election years as opposed to non-Presidential years.  The races are much tighter in Presidential years, which is concerning to all of the Republican candidates, but to Anderson in particular.  Her closer margin in 2014, coupled with some bad press in the media, have most people in the Office concerned about what's going to happen on November 8th.

The vast majority of the Assistant District Attorneys working under Anderson want her to be re-elected, which is completely understandable.  A change at the top gives uncertainty to all below.  I should know.  I'm not just a political upheaval spokesman, I'm also a victim!  As one of my friends pointed out, the D.A.'s Office has been a picture of instability since Chuck Rosenthal's resignation in 2008.  Over the past 8 years, there have been seven different people at the helm (Rosenthal, Bert Graham, Ken Magidson, Pat Lykos, Mike Anderson, Belinda Hill & Devon Anderson) which is a stark contrast to the 21 years that Johnny Holmes held the Office.

While Anderson's prosecutors are enthusiastic about her candidacy, she's lost some of her fan base in other arenas.  The indictment of two anti-abortion activists for using false identification in a ploy to entrap Planned Parenthood alienated her hardcore right-wing conservatives -- and not in a small way.  Those same hardcore right-wing conservatives who are likely to turn out to vote for Donald Trump might be skipping a vote in the District Attorney's race.  Although I don't see them crossing over to vote for Ogg, a large amount of non-votes could be devastating.

For some of us, the indictment of the activists showed some courage.  The sudden dismissals of those indictments without explanation a few months later -- well, not so much.

The recent Harris County Constable Precinct Four evidence destruction scandal also seems to have landed some negative publicity at Anderson's doorstep, although that wasn't something that Devon should be blamed for.  Someone in her office did make the decision, however, not to inform the Trial Bureau (and subsequently the Defense Bar) about the evidence problems.  There's no excusing that.

Most problematic for the Anderson Administration, however, is the suspiciously timed lawsuit from a sexual assault victim who was jailed on a writ of attachment during the trial of her accuser.  As I've written here before, I think that portraying the Anderson Administration as unsympathetic to victims is a gross mischaracterization, regardless of what happened in that case.  However, the end results are something that the Ogg Campaign has sunk its teeth into and won't let go.  If any single issue sinks Anderson's re-election bid, it will be this one.

Kim Ogg has some baggage in her closet as well, although it doesn't garner the same amount of media attention that Anderson's missteps have.  During the 2014 election, the Houston Police Officers Association accused Ogg of failing to protect the privacy of victims during her tenure as head of CrimeStoppers.  She's also gained a lot of negative attention in the past week for taking a $500,000 donation from controversial billionaire George Soros.

The issue with Soros doesn't bother me all that much.  Are we concerned that he's going to get some traffic tickets fixed here if Ogg wins?  What concerns me more about Ogg is the fact that she's willing to promise prosecution for circumstances that she's knows aren't against the law.  I agree with her that the D.A.'s Office should have disclosed the Precinct Four scandal much earlier than they did, but Ogg wants a criminal investigation into it for criminal charges for Official Oppression.  That's a pretty big stretch.  Great vote-getter, I suppose, but what's next?  Attempted official oppression on all trials that end in a Not Guilty?

It frustrates me when Ogg goes down this road, because, as I've said before, she's better than that.  She's a qualified candidate and she's smart, but this is just blatant pandering and she knows it.  The danger in that is that it calls into question what she'll do in situations where two moron ex-cops come shopping around B.S. warrants.  Will she go sign off on the warrant to curry favor with the defense bar?  Will she abdicate her duty to get more votes?  Things like this truly bother me.

At the end of the day, this has become a tough race for me to decide who to vote for.  Ogg is definitely more progressive in her views on criminal justice, while Anderson clearly embraces a much tougher stance.  Anderson recently blasted me on Facebook for endorsing Democratic judicial candidate Herb Ritchie by pointing out that he gave deferred adjudication on Aggravated Robberies and he had a backlog in his capital murder caseloads.  I had endorsed Ritchie because I thought he was more neutral and gave a fair trial.  She may not like the idea of the a judge who gives deferred on an aggravated case, but the law allows it and I don't know of a judge on the bench who has never done it.  Clearly, she and I have a different view on what factors make for a good judge.

At the debate between the two candidates, Anderson pointedly said that defense attorneys will "say anything to get a case overturned."  That's a broad statement, and one that illustrates why the defense bar isn't flocking to support her.  Some of us pride ourselves on being ethical and honest even when defending people accused of doing terrible things.  I've never subscribed to the theory that all prosecutors cheat.  It is disappointing to hear that we have a D.A. that seems to think all defense attorneys lie.

Back in the 2008 election, I lamented how politics were infiltrating the Criminal Justice System and noted that they had no place there.  Unfortunately that's exactly what happened under the Lykos Administration and have now carried on into the Anderson Administration.  There is more of a focus on how things look than there was before, and that can present problems.  An Office that moves so quickly to tout all of its accomplishments is one that opens itself up to enemies looking for failures.  This has led to prosecutors being more reluctant to dismiss questionable cases or go to judges where the punishment might not be harsh enough.    There is a lack of discretion at the trial court level that is ridiculous, because there are many, many damn good prosecutors there exercise good judgment.  A now-former prosecutor once told me: "I don't know why doing the right thing makes me worry that I'm going to lose my job."

This campaign leaves me ambivalent about who to vote for.  An election that should have been about two well-qualified candidates having meaningful discussions about the future of the Criminal Justice System has led to sound bytes and shameless political pandering on both sides.  In an ideal world, that branch of the government would be immune to such things, but its not.  I want job stability for my friends and good prosecutors at the D.A.'s Office, but I also want them to have the discretion that many of us had when we worked at the Office.

Devon Anderson is far from being the monster that the Houston Chronicle and others have made her out to be, but there are a lot of things that need improvement in the Office -- mainly focusing on internal policies.  By the same token, Kim Ogg is a good candidate with some good ideas, but she needs to stop over-promising things on the campaign trail and get real about the actual job assigned to her.  For my friends at the Office who are understandably worried about their jobs, Kim Ogg is not the vindictive politician that Lykos was.

In the end, neither candidate is perfect, but nor are they disastrous.  They are just like any other two political candidates in a major race.

Friday, October 14, 2016

The 2016 Judicial Races

As I mentioned in my last post, my best guesstimate about the judicial races is that they will pretty much go as the straight ticket voting goes.  However, as the election of 2012 pointed out, that can be a really close margin.

I highly suggest that those of you with vested interests in the Criminal Court races type up your own lists of recommendations and make sure that you get them out to your voting friends and family before early voting starts in two weeks.  Most importantly, make sure that family and friends take time to vote DOWN BALLOT!

Below are my recommendations.  Some of my decisions were tough calls.  Others weren't.

County Court at Law # 16 - Linda Garcia (R) vs. Darrell Jordan (D)
This Court is a newly created entity and this is the first election for the Judge of this Court.  Republican Linda Garcia is the current sitting judge, after having been appointed to the position.  Judge Garcia has an impressive resume and background in criminal law.  Prior to becoming judge, she was an Assistant District Attorney in Harris County over two different periods of time.  She was highly respected in her position as an ADA and well liked.  In between her two tours of duty, she served as a member of the Texas Board of Pardons and Parole, where Grits for Breakfast referred to her as "one of the best and most enlightened members ever to serve on the parole board."
As I mentioned, when he ran for judge in 2010, I'm not a big fan of Darrell Jordan for personal reasons, over a business transaction.  That incident was quite a while back, so I'll just leave it at that.
Regardless of whatever I think about Jordan, Judge Garcia has many more years of experience in the Criminal Justice System that speak for herself.  Her compassion and integrity from all sides of the System make her easily the best choice in this race.
Recommendation:  Linda Garcia (R)


174th District Court -- Katherine McDaniel (R) vs. Hazel Jones (D)
The 174th District Court is up for grabs since Judge Ruben Guerrero is not running for office again.  The race pits Senior District Court Chief Katherine McDaniel against former 338th Judge Hazel Jones.
I've known both candidates since 1999 when I started at the D.A.'s Office.  Katherine and I were in the same division when I was District Court chief there, so I've worked alongside her as a prosecutor and we've had cases against each other since I've been on the defense side.  She is one of the hardest working, ethical and intelligent prosecutors in the building.   She embodies being tough but fair, and she works hard to make sure she is making all of the right decisions.
Although I don't know Hazel as well as Katherine, I like her very much as a person.  She was elected in the 2008 Democratic sweep, but only held onto her bench for one term.  During her brief tenure, there were some complaints from both sides of the bench about some of her court policies, although I never had a problem when I appeared in her court.
All in all, however, Katherine is the stronger candidate in this race.  She goes above and beyond to ensure that Justice is done on all cases she handles and she would have an excellent judicial temperament.
Recommendation:  Katherine McDaniel (R)


176th District Court -- Stacey Bond (R) vs. Niki Harmon (D)
Incumbent Judge Stacey Bond made a very strong (and positive) impression on the CJC during her first term in the 176th. Her years as both a prosecutor and a defense attorney have served her very well in making thoughtful and thorough consideration of all matters before her.  Her courtroom is a pleasant place to practice (even with a mildly surly coordinator) and Judge Bond is kind and compassionate towards everyone who appears before her.  Most importantly, Judge Bond has illustrated time and again that prosecutors and defense attorneys are on absolutely equal footing when they appear before her, and she's not afraid to make the prosecution mad if they've got a problem with that.  She has courage, compassion and intelligence.  What more could anyone ask from a judge?
Nikita "Niki" Harmon is an attorney and municipal court judge, who I don't believe I've ever met.  Although I don't have anything negative to say about her, I do have to point out that it would be a big leap from the Class C misdemeanor dockets that a Muni Judge handles to hearing Capital Murders. Experience matters on a District Court bench, and Judge Bond's experience is proven and effective.  This recommendation is no contest.
Recommendation:  Stacey Bond (R)


177th District Court -- Ryan Patrick (R) vs. Robert Johnson (D)
There was a lot of grumbling when Ryan Patrick was appointed (and subsequently elected) to the 177th Bench in 2012.  He was relatively young for the position, and some in the defense bar were ready to pounce upon him because of the fact that his father is Lieutenant Governor.  Over the past four years, Judge Patrick has won over the skeptics by just doing a really good job.
He is friendly, knowledgable, and fair.  He stays on top of all incoming legal decisions from the higher courts, and applies them to the cases in front of him easily.  He is willing to hear all arguments before him, reserving judgment until they are complete, and he has a keen awareness about the meaning of Justice.
Robert Johnson is a local attorney that I know in passing, but I don't see too much of him at the CJC.  He practices both criminal and civil law.  As I've written here time and again, criminal law is not a part-time job.  There's just too much on the line to have someone who only practices criminal law part of the time to be a judge.
Recommendation:  Ryan Patrick (R)


178th District Court -- Phil Gommels (R) vs. Kelli Johnson (D)
The 178th is also an open bench, with sitting Judge David Mendoza choosing not to run for a third term.  I'm a big fan of Judge Mendoza and I'm sad to see him go.  Fortunately, there are two very capable candidates running for the bench.
Republican candidate Phil Gommels is a former prosecutor and a current defense attorney.  He's a very nice guy who diligently represents his clients.  His prior military experience and his Board position with the Harris County Criminal Lawyers' Association give him a solid resume for a candidate.
Democratic candidate Kelli Johnson is a senior felony District Court Chief who is also a good friend of mine.  She and I started at the Office at the same time and she is a talented prosecutor who is liked and respected by the defense bar.
In my opinion, both of these candidates are qualified to hold the position, but Kelli has a significant advantage here when it comes to experience and seniority.  Kelli has been practicing over twice as long as Phil and has more experience with a wider berth of cases.
Recommendation:  Kelli Johnson (D)


179th District Court -- Kristin Guiney (R) vs. Randy Roll (D)
Like her fellow freshman judges, Stacey Bond and Ryan Patrick, Republican Incumbent Kristin Guiney has also become a favorite judge at the CJC.  She has brought her strengths of intelligence, common sense, and a bizarre desire to do legal research to the bench.  Guiney has worked hard to do more than just be a sitting judge.  She has worked hard to do research that helps make the Criminal Justice System better in Harris County.  Whether it be studying docket management techniques or outside rehabilitation programs, she adheres to the principle that there is always something that can be done to make things better.  She's been an exemplary judge in her first term.
Democratic candidate Randy Roll is the former judge of the 179th and is looking to reclaim his bench, which he lost in 2012 after serving only one term.  Although I don't have anything against Roll personally, he just wasn't a very good judge during his first year.  His behavior raised concerns from both the prosecution and the defense.  He was known to make strange statements from the bench that indicated that he was much more concerned with keeping his docket numbers low than he was about actual justice in the courtroom.  His campaign literature has been implicitly dishonest, he initially claimed to have never been reversed in trial, until it was pointed out that this was a lie.  He then modified his literature to say that he had never been reversed in trial "as to guilt/innocence."  A judge getting reversed is going to happen from time to time, but Roll's willingness to mislead voters is concerning.
In the interest of full disclosure, Kristin Guiney is someone I consider one of my closest friends, but this is not a close contest.
Recommendation:  Kristin Guiney (R)

337th District Court -- Renee Magee (R) vs. Herb Ritchie (D)
As in the 179th race, Incumbent Republican Judge Renee Magee is also running against the candidate she unseated in the 2012 election.  Democratic candidate Herb Ritchie held the bench for one term after the 2008 election.  I've actually tried cases as a defense attorney in front of both of them, which makes this race a very tough one to call.
I feel a personal loyalty to Judge Magee going back to 1998.  I interned for her an now-Justice Elsa Alcala when they were the prosecutors in the 209th District Court.  She recommended me for my job at the D.A.'s Office.  When these candidates faced off in 2012, I didn't make a call on who I would pick because I had pending cases in the court.  When Judge Magee took the bench, I was one of the first attorneys to try a case in front of her.   I've tried murder cases in front of both her and Ritchie.
In the end, Ritchie was ultimately more neutral on the bench.  Although Judge Magee has improved over the years, there are still some remnants of prosecutorial leanings when it comes to trial.  This is improving and the overall atmosphere of the court is great.
On the bench, Ritchie definitely played no favorites when it came to his rulings and he gave careful consideration to all issues before him.  He suppressed a significant portion of a murder confession in a case I tried with him, but did so on grounds other than which I had drawn his attention to.  His punishments on cases varied to the degree that it was impossible to predict what he might do on any given case where he was deciding punishment.  That's not necessarily a bad thing.
At the end of the day, I'd rather try a case to Ritchie.
Recommendation:  Herb Ritchie (D)


338th District Court -- Brock Thomas (R) vs.  Ramona Franklin (D)
Republican Incumbent Judge Brock Thomas was the only judge who lost his bench in the Democrat Sweep of 2008 only to reclaim it in 2012, and I'm glad he did. Judge Thomas is an outstanding judge.  He is no nonsense and quiet on the bench, but he holds everyone in his court to a high standard -- both prosecutors and defense attorneys.  He once pointed out to me that I had inadvertently put the wrong date on a Motion for Funds to Hire an Investigator on a case.  That attention to detail is funny, but it also illustrates the close attention to detail that he pays to each case.  The level of scrutiny that he gives to all matters before him are exemplary and he makes no decisions off the cuff.  He is wiling to give second chances and he's heavily involved in the mental health courts, but he can also cut through anyone before him who is just making excuses.
Ramona Franklin is a defense attorney who worked briefly for the District Attorney's Office.  I know her in passing, but not well at all.  I honestly don't know her well enough to say whether or not she's qualified to be a judge.
I do, however, know that Judge Thomas is doing a fantastic job and deserves to be re-elected.
Recommendation:  Brock Thomas (R)

339th District Court -- Mary McFaden (R) vs. Maria Jackson (D)
Incumbent Judge Maria T. Jackson is the only Democrat running for re-election for her bench.  She was elected in the 2008 and managed to hold onto her position in 2012.  Eight years after first taking the bench, she is running against senior Felony District Court Chief Mary McFaden.
I've worked several cases in Judge Jackson's over the past several years and she's a very nice lady.  It's a good court to work in and she gives the defense as much consideration as the prosecution.
Mary and I have been friends since she started at the Office.  She is a hardworking and honest prosecutor.
The two candidates could not be more different.  Many at the D.A.'s Office feel that Judge Jackson is too lenient, while many in the Defense Bar feel that Mary would be too tough.  Mary is a tough prosecutor and her recommendations during plea bargains are high, but I've never found her to be anything other than honest and above-board when dealing with her on cases.  She's a good friend of mine and I will vote for her, but it isn't because I have anything negative to say about Judge Jackson.
Recommendation:  Either

351st District Court -- Mark Ellis (R) vs. George Powell (D)
Incumbent Republican Judge Mark Ellis was the lone survivor of the 2008 election that swept out every other Republican judge on a criminal bench, and he easily held onto his bench in 2012.  He's actually been on the bench since 1997, and in my opinion, he's a good judge.  He's worked consistently with Mental Health Court and he knows the law.
George Powell is a longtime defense attorney and a friend, as well.  He's certainly a qualified candidate, but he doesn't have Judge Ellis' experience.
Recommendation:  Mark Ellis

Monday, October 10, 2016

The 2016 Election: Guesses, Hopes, and Predictions

As we get closer and closer to the Election Day on November 8th, I'm getting more frequent questions about what I think is going to happen.  In all honesty, your guess is as good as mine, and I'll always defer over to Charles Kuffner if you want a truly educated opinion.  I have some observations and thoughts, but I'll be the first to tell you that they are more or less just guesses.

Whenever anybody asks what I think will happen in November, I always say that I think it is going to come down to straight-ticket voting.  Predicting how the straight ticket will go, however, is just mere speculation.  If it goes Republican, I think that most (if not all) of our judges will be just fine -- which is a good thing.  However, I also think that even if Harris County goes Republican that the race for District Attorney (between Devon Anderson and Kim Ogg, on the off chance that you just now wandered into this discussion) will be much closer than any other race.  Either outcome would not surprise me.

I know about the University of Houston poll that showed Devon had a one point lead over Kim, but I don't think I would make any big predictions based on that.  The margin is too close to call.  I do think that it is significant that the margin is smaller than any of the other races, but given several things that have gone on at the D.A.'s Office over the past year or so, that isn't surprising.

So, my bottom line is that if the Republicans get more straight ticket votes than the Dems do, the Republican judges will prevail, but the D.A.'s Office will still be up for grabs.  I'll post more about my thoughts on the D.A. race later.

So, here is my amateur analysis of what I think is going to happen in 2016.

To start with, we have to jump back to the 2008 election.  Back then, there was a large amount of Democratic turnout that was motivated by Barack Obama being on the ticket.  As you know, that turnout swept the majority of local Republicans out of office -- including all but one Criminal District Court Judge.  The oddity of the 2008 election was that one of the few surviving Republicans was District Attorney Pat Lykos.  Her defeat of Democrat Clarence Bradford was probably mainly attributable to all of the baggage and scandals brought with him from his days as Chief of the Houston Police Department.

For those who thought that the 2008 election was evidence that Harris County had "turned blue" for the Democrats, that clearly proved not to be the case in 2010, as there was a powerful Republican sweep in the non-Presidential year.

The 2012 results were even more interesting.  The enthusiasm for voting clearly waned for the Democrats, although it was still a factor.  Many of the benches that had been lost in 2008 were recaptured by Republican candidates -- some benches reclaimed by the judges that once held them, while others claimed by rookie judges.  While 2008 swept out all Republican judges, with the exception of one, 2012 swept all Republican judges back in -- with three exceptions:  Democratic Judges Ruben Guerrero, David Mendoza, and Maria Jackson all survived challenges from Republican opponents.  Additionally, Democrat County Attorney Vince Ryan also staved off a challenge from a Republican candidate, as did then-Sheriff Adrian Garcia.

Why these judges survived when others didn't isn't exactly clear.  I've heard theories and I've had theories, but they are all just speculation.  Whatever the case may be, the powerful enthusiasm behind Obama in 2008 wasn't nearly as strong in 2012.  Unsurprisingly, the Republicans swept again in 2014, which send a clear message that if you want job security as an elected official in Harris County, you really need to be running in the non-Presidential years.

So, in trying to guess what is going to happen in 2016, one just has to figure out how National politics are going to affect Harris County.

Personally, I don't see Hillary Clinton, standing alone as a candidate, motivating people to vote.  She's too polarizing and doesn't have the charisma that Obama has to duplicate the Harris County turnout that he had in either 2008 or 2012.  If Hillary was running against anyone other than Donald Trump, I would tell all the Republican judges to start their celebrating now.

Unfortunately, the Trump factor leaves too much to the unknown.

I predict that there are going to be a lot of people that vote for the first time because they identify with Trump.   Whether or not they vote straight ticket or just vote for him and leave, however, is anybody's guess.  Conversely, there are going to be plenty of people who aren't all that fired up about Hillary Clinton, but they are more than happy to go to the polls to vote against Trump.  Whether they pull straight ticket or not is also anybody's guess.

If I were forced to make a prediction, I would say that I think the Republican judges are going to be okay.  I'm skeptical of most polling, but I'm really skeptical of local polling.  In the March primaries, 329,768 people showed up to vote in the Republican Primary, as opposed to 227,280 in the Democratic.  Now, a large part of that can probably be attributed to Ted Cruz (who got 148,010 of those votes) being on the ballot, but that's still a margin of over 100,000.  Maybe that means something, maybe it doesn't.

Somewhere, Kuffner is probably rolling his eyes at my amateur analysis.

The bottom line is that I predict Harris County will stay Republican, but by a much more narrow margin than in 2012, and I think that the D.A.'s Office is very much up for grabs.

With a margin that close, getting your friends and family out to vote could not be more important.

Go vote!

Wednesday, September 28, 2016

Big Brother is Watching You in the Harris County Jail

Early on in my career as a defense attorney, I made it a routine practice to advise all of my clients who were in custody to be aware of the fact that they had no privacy in the Harris County Jail.

The Sheriff's Office makes copies of your incoming and outgoing mail.  They record your phone calls and will turn them over to the prosecution.  Your "friends" in the pod with you will gladly snitch on any admissions that you give to them, if doing so will help their negotiations on their own cases.  More often than that, my client will nod as if this is self-evident.  Sometimes, a client will seem genuinely surprised and grateful for the information.

Despite the warnings, however, many clients can't contain themselves.

As was evidenced today, when the prosecutor regurgitated to me pretty much everything I had ever said to or advised my client of.

The prosecutor didn't learn this from listening in on any of my phone calls with the client -- not only would that have been illegal, but all of my conversations with him have been in person.

No, the prosecutor had simply listened to the conversations where my client relayed everything I had told him to his girlfriend.  The prosecutor even knew our strategy for offering a counteroffer.  Not to mention my entire trial strategy.

These are the moments that I want to bang my head against the wall.


Monday, September 26, 2016

The 2016 D.A. Debate

So, I just finished watching the Harris County District Attorney candidates debate, and I had a few thoughts.

First off, with the possible exception of the Sheriff's race, this is the most important local race on the ballot in November for Harris County.   For some reason, it aired between 6:30 and 7:30 p.m. and no news network carried it -- not even Channel 2, whose own Khambrel Marshall was the moderator.  It kind of reminded me of the ending of Rocky 3, when Rocky and Apollo had a private fight that only they knew the outcome of.

I had to watch the debate via Kim Ogg's website.  Not that I'm supporting Kim, but she appeared to be the only game in town if you wanted to watch the debate online.  Dave Jennings over at Big Jolly Politics made his long-awaited return to blogging to point out that perhaps Devon didn't exactly want to maximize coverage of the debate.  I'm not sure that I entirely disagree with him.  Given the current news cycle, I actually think that it took a lot of guts to agree to a debate at the moment.

All in all, there were virtually no surprises in the debate, other than the fact that the audience was surprisingly unruly.  Both sides clearly had their supporters who seemed to be trying to outdo each other with their applause.  Disappointingly, some of Ogg's supporters began talking over Devon and yelling out things, which was extremely annoying.

Devon touted her new diversionary programs such as those for cases involving small amounts of marijuana, and prostitution.  Kim attacked systemic problems in the criminal justice system and the need to change.  I missed the closing statements due to a phone call and an overactive two-year-old, but I understand that Devon brought up some character issues with Kim.

As I've said before, Kim is a formidable candidate with some good ideas, but she diminishes them with her pandering and politicking.  Devon called her out on her politicking and she was right to do so.  If Kim would stick to her principles instead of manipulating statistics, it would make her a much more appealing candidate to me.

In the end, I doubt that the debate changed anybody's mind about the candidate they were supporting in the first place -- and I doubt that anybody who was undecided was actually watching it.