Tuesday, September 15, 2020

Raps, Rides, and Kim Ogg's Campaign by Indictment Policy

Under the title of Scott Henson's noted criminal justice blog, Grits for Breakfast, is a subheading that reads "Welcome to Texas Justice:  You Might Beat the Rap, But You Won't Beat the Ride."  For those of you who are either 1) outside the criminal justice world; or 2) too young to recognize the old phrase, you are probably missing out on how witty Grit's use of the phrase is.

The original use of the phrase can be attributed to a police officer dealing with a suspect who is confident (rightfully or wrongfully) that the charges he is facing won't hold up in court.  The officer's response is that although said suspect may ultimately win in court ("beat the rap"), he's still arresting him and he's getting a "ride" to jail.  Scott's blog serves as a respected watchdog for the Texas Criminal Justice System and his well-researched posts delve into the inequities in the System as they apply to prisons, prosecution, and police (amongst other topics).  Scott's blurb points out that even if nothing is ultimately done about the issues he highlights, at least they will experience the "ride" of being brought to public attention.

As someone who has occasionally clashed with Grits on some issues and found himself on the ride side of the blog, I can attest that the "ride" is not much fun.  

I digress.

Although the phrase "you may beat the rap, but you won't beat the ride" might be considered innocuous enough, it actually highlights an ethical issue that prosecutors must deal with quite frequently in their careers -- what do you do with the case where you don't think you can prove it to a jury beyond a reasonable doubt?

From an ethical standpoint, the answer is clear.  If a prosecutor knows that he or she can't prove a case, then he or she has a duty to dismiss it.  The burden of proof for a criminal charge is proof beyond a reasonable doubt and that standard applies from Capital Murder all the way down to a speeding ticket.  If the burden can be met, so be it.  But anything South of Reasonable Doubt is Not Guilty in the eyes of the law.  

As I learned from the late great Professor Irene Rosenberg during my Criminal Procedure class at the University of Houston in the last Millenium, the Criminal Justice System is a series of moments involving the exercising of discretion -- from the cop who decides whether or not to pull over a vehicle all the way to the juror who decides to convict or acquit.  

No one in the entirety of the System, Professor Rosenberg noted, has more Power of Discretion than the Prosecutor.

The Prosecutor can decide whether or not to file charges.  The Prosecutor can decide whether or not to dismiss charges. The Prosecutor can decide what plea bargain offer to make and no one can force them to change that offer.   The Prosecutor can choose what evidence can ethically be put forward.  The Prosecutor can decide what the definition of "ethically put forward" means.  The power is not absolute.  There are checks and balances to it, obviously.  

But pound for pound, a prosecutor's discretion is so powerful that incoming baby prosecutors in Harris County used to receive a book entitled "A Prosecutor's Discretion" that we had to read as a job requirement.

The erroneous counter-argument to the principle that a prosecutor should dismiss any case he or she knows they can't prove is a cynical view of the phrase "everyone deserves their day in court."  Under this argument, a prosecutor knows she can't prove her case, but thinks that the Defendant should learn the valuable lesson of having the shit scared out of him by sitting through a trial anyway.  That's what courts are for, right?

Wrong.

If the proponent of a criminal case (the prosecutor for the State) doesn't even believe there is enough evidence to proceed forward, then they shouldn't be advocating otherwise to a jury -- even (and this is key) even if they 100% believe that the Accused is factually guilty.  A case without sufficient evidence shouldn't be filed regardless of a police officer's or prosecutor's intuitive belief of a suspect's guilt.  

A case should also not be filed to play to public sentiment, and it damn sure shouldn't be filed for political benefit.  

This is a fact that seems to be lost on Harris County District Attorney Kim Ogg.


In the wake of Hurricane Harvey, you may remember the Arkema explosion that happened in Crosby, Texas.  A brief summary of the event would be that conditions caused by Harvey led to an explosion at the plant that subsequently caused a great deal of pollution and some injuries to some of the emergency personnel who responded.  

A briefer summary (for Kim Ogg's purposes) is "political opportunity."

As a newly minted "progressive prosecutor" who had been in office less than a year, Ogg made a big showing in one of her now-infamous press conferences, announcing criminal charges were coming against Arkema and the people in charge of it.  Nobody likes polluters, right?  We have to protect our first responders, right?  What better way to show Houston how much an elected D.A. loves the community and first responders than going after one of those nasty polluting companies that seem to plague the community, right?  

Nevermind the fact that big Environmental Protection Agency violation cases are typically handled by the Feds, Ogg and her newly appointed Environmental Crimes Division Chief, Alex Forrest, were ready to be the proverbial David taking on a polluting Goliath.  

As she portrayed herself and her Office as crusaders, those of us in the legal community had a very strong feeling that Ogg had bitten off waaaaay more than she could chew.  Wide-scale environmental cases like what she was announcing against Arkema involve a tremendous amount of legal work and investigation.  Prosecutions like that normally come with a fleet of Federal Prosecutors working on the different aspects of the case.  A solitary prosecutor who had been working for the State less than a year was facing an impossible task.

As Arkema personnel began hiring prominent attorneys like Rusty Hardin, Dan Cogdell, Paul Nugent, Letitia Quinones, Chris Downey, Tim Johnson, Heather Peterson, Derek Hollingsworth, Cordt Akers and Nick Dickerson,  Ogg seemed to recognize that her new division chief may be in over his head as well.  

The Office quickly enlisted the office of prominent civil attorney Michael Doyle as a special prosecutor.  Doyle "coincidentally" just so happened to be a civil attorney suing the Houston Police Department over the infamous Harding Street Raid on behalf of the victims' families -- a cause that is also near and dear to Kim Ogg's heart.  It has been stated that Doyle's work on the case is pro bono.

So, to put this in context, Michael Doyle has a huge wrongful death suit against the City of Houston for the Harding Street Raid, which gives him a significant financial interest in the outcome of that case.  Kim Ogg's D.A.'s Office is involved in the investigation of Gerald Goines and the HPD Narcotics Division for their roles in that raid and the deaths of Doyle's clients.  When the Arkema investigation starts getting too complicated, Doyle is kind enough to offer his services to Kim Ogg for free.  See how that works?

So while Ogg worked on the Harding Street Raid, Doyle and his office worked on Arkema for free.  Seem a little conflict-of-interest-ish?  Check this out.

On April 10, 2019, President Donald Trump rolled into Crosby, Texas to showcase the region's recovery after Hurricane Harvey.  Now, I'm not a fan of Trump, but I think we can agree that the President of the United States visiting Crosby, Texas is a large and newsworthy event in Harris County.  

That's probably why Kim Ogg decided that April 10, 2019 would be the day that she had Alex Forrest and his merry band of prosecutors present the Arkema case to a Grand Jury.  While Trump was touting the region's recovery after Arkema on one side of the county, Ogg was indicting the company Downtown.   I'm sure that was a coincidence and not done for show, right.  That same day, Ogg announced in yet-another-press-conference, that Doyle would be offering his assistance in prosecuting the case.  

And later, that evening, she spent the evening at a fundraiser for her hosted by Amir Mireskandari and Muhammad Aziz, who was one of the lead attorneys in a lawsuit against . . . (give you one guess) . . . 

Arkema.

As it turns out, Kim Ogg is the Michaelangelo of painting a picture of impropriety.

But what does this have to do with "Raps and Rides?"  Well, the fact of the matter is that the Arkema charges kinda sorta weren't sustainable.  After a weeks-long trial, interrupted for months by COVID-19, the District Attorney's Office filed a mid-trial dismissal on several of the accused Arkema employees.


If you're curious as to why an Arkema director would be charged with "Assault of a Public Servant," that's because Ogg apparently thought it would be a more headline-grabbing charge if she insinuated that Arkema personnel had victimized the first responders who worked on containing the aftermath of the explosion.  

It is worth noting that Alexander Forrest, in filling out the mid-trial dismissal, checked the box that listed "Probable cause exists, but case cannot be proven beyond a reasonable doubt at this time."  That's the State's way of announcing to the Court "oh yeah, well I still think they are guilty."  It also slows up the process for the accused being able to get the charge expunged off of his record.  To Hell with that whole presumption of innocence business.

A mid-trial dismissal is an embarrassing moment for a prosecutor in most instances.  It happens, but it sends a message that you didn't know your case.  If you are in charge of directing a prosecution that could damage, destroy, or end someone's life, it is probably a good practice tip that you know your case.   It becomes even more embarrassing for someone like, say, an elected-District Attorney who held multiple press conferences about how good a case was (as she is wont to do), only to watch it fizzle and explode on the launchpad.  

Of course, some might argue that Harris County District Attorney Kim Ogg never really cared too much about what the outcome of the Arkema trial would be.  She got all the positive press, publicity, and fundraising done by just getting it indicted.  Who cares how it ultimately turned out?  

In the Arkema case, the "ride" was well worth the embarrassment of the Accused "beating the rap."

It's worth noting that at least three prosecutors who have departed the Harris County District Attorney's Office in the past several months (including my awesome law partner, Cheryl Chapell, have left resignation letters citing disgust concerns that the Office was pursuing cases based on public sentiment rather than "evidence-based prosecutions" as Ogg enjoys applauding herself for.  That's basically giving into the idea of mob rule, which a prosecutor with integrity should always shun.  

But in Kim Ogg's case, she responded to the dismissal of one high profile by indicting another one.

As if on cue, the District Attorney's Office followed the news of the Arkema dismissals with the announcement that they had secured an indictment against former-Baytown Police Officer Juan Delacruz for the offense of 1st Degree Aggravated Assault by a Public Servant for the May 13, 2019 shooting death of Pamela Turner.

Without speaking to the merits of the case against Delacruz, the timing of the indictment and the subsequent announcement is interesting.  Almost a year and a half after the shooting, the D.A.'s Office just so happens to announce an indictment on a high publicity case at a time that coincides with a high profile mid-trial dismissal.  It's almost as if the Office was sitting on taking the case to Grand Jury so that they would have it available for just such an occasion.

Whether or not Juan Delacruz ultimately beats the "rap" for which he was indicted won't be determined for months, if not years.  He will be experiencing the "ride" in the media for quite some time, though, and Kim Ogg will love every minute of it.  Her "tough on bad cops" schtick plays well with the liberal voters that she's otherwise alienated by not being quite as progressive as they had once hoped.  This is also why she keeps filing additional charges on Gerald Goines and anyone else she can possibly link to the Harding Street Raid.  

It's just good politics, even if it flies in the face of what a prosecutor with integrity should be.

A prosecutor with integrity knows that if she doesn't have confidence in the rap, there should never be any ride.

Sunday, September 13, 2020

Ricardo Rodriguez

 

My good friend and fellow defense attorney, Ricardo Rodriguez, passed away on Friday.  

I've heard that he had some health issues that were complicated by the COVID virus, but I haven't confirmed that.  The last time I saw him -- which doesn't seem like was all that long ago -- he seemed healthy and happy.  His sudden passing is a tremendous shock and a huge loss to all of us who knew him.

I posted about his passing on my personal Facebook page and the reactions to his death were all the same.  Everyone was heartbroken and shocked.  Everyone talked about what a gentleman and honorable man he was, and how he was kind to everyone he met.  

He deserved every last one of those accolades and then some.  He was a fixture and a giant of the Harris County Criminal Justice System.  He was a man who embodied Character.  And he was definitely a man who was a Character.

I first saw Ricardo Rodriguez when I was an academic intern working in the 209th District Court during the summer of 1998.  I didn't meet him then, but he was hard to miss if he was in the room.  He was tall and skinny, dressed in sharp suits and even sharper boots, coupled with jet black hair and his trademark mustache.  He moved through the courthouse with the confidence and ease of a lawyer who was willing to throw himself headfirst into any case with full gusto.  

I remember thinking that if they ever made a movie about this place, that dude with the mustache was definitely going to be a big part of it.

Although I wouldn't really get to know him for another few years, I gathered quickly that he was one of the attorneys who took on death penalty cases.  That was, and is, a pretty elite group of lawyers in Harris County, in my mind.  As a Spanish speaker, Ricardo would handle a great many death penalty cases during his long career in Harris County.  He knew his business and he was good at it.  I knew his reputation as being a good and hard-working lawyer before I met him.

In 2002, I was promoted to the rank of Felony Two and my first assignment was in the 228th District Court, which at that time was presided over by Judge Ted Poe.  Ricardo and Rachel Capote were the two main contract attorneys in the 228th, and that's where I first met them both.

For those of you who came after Judge Poe retired from the bench and headed to Washington as a U.S. Representative, you will have to take my word for it when I tell you that he was an extremely intimidating judge.  He was well-known in the media for being tough on crime.  He was well-known in the D.A.'s Office for having extremely high expectations for the prosecutors in court.  He was deadly serious on the bench and he exhibited no patience for foolishness or incompetence in his courtroom.

As a brand new Felony Two, I was very excited about being in his court.  But I was also very very nervous.  If Judge Poe was on the bench, I spent the morning concentrating deeply on just not screwing up.  I was very quiet back then, and Ricardo initially took my silence as either a lack of personality or maybe even a little bit of snobbery.

I remember standing by the jury box one day when he came up to me and said: "Murray, brother.  We need to loosen you up.  You're so tense.  You don't ever say anything."

I remember thinking "Me?  No one has ever accused me of not saying anything."  I didn't want him to think I was a snob.  I started telling him how nervous I was being in front of Judge Poe.  He nodded sympathetically and said that Judge Poe wasn't that strict and I needed to relax.  

And I did.  Slowly but surely.  I looked at the 228th like the song says about New York City.  If I could make it there, I could make it anywhere.  The more familiar I got with the court and with the extremely intimidating Judge Poe, the more loose and funny it became in the courtroom.  Although we didn't get to the level where we were cutting up when Judge Poe was on the bench, the dynamics between the prosecution, the court staff, and the defense bar were a very fun environment.

The leader of that pack was Ricardo.  He was the old hand with all the confidence in the world, but he was so nice -- so fostering to those of us who didn't quite know the ropes.  When Paul Doyle came in as a new Felony Three, the courtroom had the atmosphere of a sitcom.  Ricardo would exclaim "Que gacho!" periodically, and I had no clue what it meant.  But he would be so animated when he said, I would do it too.  He had to tell me I was using the phrase wrong.

On a side note, I finally looked up what "que gacho!" means before writing this post and saw that it directly translates to "how awful," which is a perfect phrase to describe how the courthouse community all feels about losing him.

I tried my first murder case against Ricardo and in front of Judge Poe.  That's a thing I'm very proud of.  That was some very intimidating stuff.  The case was out of LaPorte and it dealt with a body found in the trunk of a burning car.  It was largely circumstantial and Ricardo was more than happy to rattle my cage by pointing out that I had a big problem proving it.   The case got a whole lot better when the Defendant's girlfriend decided to testify against him.

In the many years that followed, Ricardo would always shake his head and note "I had you 'til his girlfriend flipped on him."  He was right about that.  The guy had a previous manslaughter conviction so once the jury convicted him, the punishment phase was going to be ugly.

Ricardo did what good defense attorneys do when they don't have anything to work with -- he preserved the hell out of the record by objecting to every single thing I did.  He objected to me doing the predicate wrong on introducing Judgment and Sentences until I had to get out my D.A.-issued predicate manual and read the predicate word for word.  

And if I didn't get it right, Judge Poe sustained every objection Ricardo made pointing out my screw-ups.  He even objected to the ink not being dark enough on the clerk's certification stamp on the paper.  

It was painful, but I learned so much from the experience and I learned so much from Ricardo.

We bonded through it.  We became good friends.  I knew all about his family and his elderly father whom he loved very dearly.  He talked of Laredo and his service in the Army in Vietnam.  He brought pictures from his days in the military.  In many of them, he was wearing a large bandage on the side of his neck from a grazing wound from enemy fire.  He knew my dad had served in Vietnam and he always asked how my dad was doing, every time I saw him.

He was one of the funniest, most cheerful people I ever met.  His self-deprecating stories about his dating life always was a hot topic of conversations after a weekend in court.  

Every time I saw him, he'd put his hand on my shoulder and call me "brother."  He always asked about me, my family, everyone, everything.  We'd always talk about going to get crawfish together.  We would go do that on occasion when I was in the 228th.  I wish we had kept up with it as years went by.  

I can think of a million Ricardo stories that were all so funny and showed what a good man and good friend he was.  Based on the reactions on Facebook, I think we all have those stories about him.  

He retired from practice about two years ago and he was extremely excited about leaving the CJC for his family ranch in Laredo.  His going-away party was huge, attended by retired and active judges, prosecutors, and defense attorneys who came to give them their best wishes.  We were all sad to see him retire and leave Houston, but he was so happy about it that we couldn't help but be happy for him.

It is heartbreaking that he didn't get to enjoy that well-deserved retirement longer than he did.  Nobody deserved it more than he did.

He was a true gentleman, a courtroom warrior, and a beloved friend.  

Rest in peace, Ricardo.  You were the best of us.

Monday, August 3, 2020

A Proposed Alternative to NRG Jury Selection

Over the weekend, I received a couple of comments on my last blog post wanting to know what my plan would be for getting jury trials back up and running.  Those are fair comments.  I try to suggest alternatives to plans I criticize, but I recognize that I don't always do so.

When I was walking around NRG Arena and looking at how woefully insufficient it was for the purpose of picking a jury, I mentioned to one of the prosecutors there, Paul Fortenberry, that sometimes there just isn't a solution.   Not having a solution doesn't reduce the urgency of the situation.  As humans, it is our nature to be averse to the idea that there may not be a viable solution in a crisis.  

The negative reaction from criminal trial lawyers (and by that I mean both criminal defense attorneys and prosecutors) to the NRG Arena Plan is two-fold. The first being that nobody bothered to make any attempts to gather input from any of us before diving headfirst into the plan.  I recognize that this is going to make the Powers That Be respond with "Oh, so you're just mad because you weren't included!"  But that's not where I'm going with this.

If the actual trial lawyers had been consulted from the beginning, maybe we wouldn't have ended up in a contract deal with NRG that was too big to fail -- or get out of.  I can't imagine a trial lawyer on earth who would have ever endorsed the idea of picking a jury with such bad audio and visual conditions.  Maybe if trial lawyer input had been invited (and given any weight) on the front side, the County wouldn't have been so quick to pull the trigger on NRG.  If they hadn't pulled the trigger on NRG, they wouldn't be so firmly entrenched against any other ideas.

The second factor in the negative reaction from criminal trial lawyers is based on the fact that we have a different set of factors at stake than civil trial lawyers.  Please understand that I'm not trying to diminish the importance of a civil trial.  I'm really not.  But the differences between a civil trial and a criminal trial are glaring when you put them to the test under the NRG Arena Plan.

To start off with, civil firms, especially the larger ones, might actually have the capacity to bring enough personnel to NRG Arena and deal with the extraordinarily wide layout where venire members will be seated.  They have associates and a stable of clerks that can spread out and pay attention to juror reactions and responses.  (NOTE:  Before my friend Jason Truitt starts indignantly telling me how he tries all of his civil cases alone, while fending off a pack of wolves with his bare hands, I realize that this isn't always the case.).  

Additionally, civil jury selection is a different animal than criminal.  I was on a civil panel one time and I was stunned at the differences.  The lawyers pretty much presented their cases during voir dire and got relative commitments from all of the potential jurors.  It was crazy!  They also seemed to be provided with as much time as they needed for voir dire.  Must be nice.

The biggest difference, however, is that a jury verdict in the civil world often seems (at least to an outsider) to be one of many steps to reaching the final resolution of a case.  It usually appears to be far from the last one.  For reasons that escape me, judges cut awards from juries or negotiations continue about what will actually get paid out after the jury has spoken.  For the criminal case, it ends when the jury renders its verdict in 99% of the cases.  If the Accused is found Not Guilty, the State doesn't get a second shot at it.  If he or she is found guilty, odds are slim that the case will come back on appeal.

The criminal jury trial is tried with (in most circumstances) irreversible consequences.

The reason that I'm revisiting all the reasons to hate the NRG Arena Plan is that what my suggestion would be as an alternative would be a radical departure from the NRG Arena Plan.  It would be expensive, controversial, flawed, and pretty widely disliked by the judges.  Please remember that when I began this post, I noted that sometimes there just wasn't a good solution.

My suggestion is comprehensive questionnaires and individual Zoom voir dire on all cases -- just like on a death penalty capital case.

For those of you who are outside of the Criminal Justice World, on almost all cases that do not involve the death penalty, juries are selected in a process where the attorneys ask a group of about 65 potential jurors questions over the course of a few hours.  The attorneys can ask individual jurors specific questions if they need to, but generally, the entire panel of 65 will be there when those questions are asked.  At the end of the process, strikes are made and the first 12 people left standing become the jury.

In a death penalty capital (under normal circumstances), more time is spent selecting the jury for obvious reasons.  In these cases, a large panel is generally brought over for an initial voir dire from the court, but then the individual venire members are scheduled to come back at designated times for some solo questioning from the lawyers.   Additionally, jurors on death penalty capital cases are provided with a fairly lengthy questionnaire containing questions relevant to serving on a death penalty case.  In many instances, the prosecution and the defense will read a juror's questionnaire and agree to strike him or her prior to the individual questioning.

My suggestion for selecting a jury in a COVID world is largely based on that model with a couple of relatively minor modifications.  Here are the steps:

1.  Jury summons goes out --  Just like during normal times, the notices will go out in the mail for "virtual jury duty."  Rather than being called into a jury assembly room as they would during normal times, the venire panel will be requested to check-in online prior to their service date and time.  Alternatives for those who do not have internet access will be provided at alternate sites around the county (like a Justice of the Peace courthouse or a library).

2.  Jury Duty Day --  On the day and time, the jurors who have checked in will then be parsed out to their individual courts.  They will then log onto a Zoom (or other conferencing platform) that is specific to the court they have been assigned to for jury service.   There, they will hear a general voir dire from the judge that covers certain issues relevant to the case to be heard.  This could be something pre-recorded or done live.  They will also be provided with an online questionnaire agreed upon by the State, the Defense and the Court.  If they have any type of scheduling, health, or other concerns, they can make note of them in these questionnaires.  

The individual venire members will then be given a date and time to log back in for individual voir dire.

3.  Behind the Scenes --  The State and the Defense will both have access to the venire members' questionnaires and have overnight to read through them and evaluate them.  Like in capital voir dire, agreements can be made by the parties on strikes.  Questionnaires can also cover scaled questions that lead to strikes for cause.  If the State and Defense agree that a juror is gone, they notify the Court for approval and that juror is notified that he or she doesn't need to report for his or her scheduled individual voir dire.

4.  Individual Voir Dire -- When I started to write this post, I envisioned individual voir dire being conducted on Zoom, but the more that I think about it, that doesn't really seem necessary.  If individuals were showing up at slotted times rather than en masse as a group of 65, it would be far easier to social distance.  Most members of the Defense Bar are opposed to Zoom, and this may be an area of compromise.  Personally, I wouldn't mind it either way.  An individual voir dire trumps the basketball arena-style proposed at NRG Arena, even if it is done by Zoom.

5.  Selecting the Jury --  Like with the death capital voir dire, there are two ways of doing this.  One option is that a decision is made after a venire member's individual voir dire over whether or not the State or the Defense wants to exercise one of their peremptory strikes.  If neither does, that person officially makes it on the jury.  The other way is to get a qualified pool of thirty-two potential jurors (that accommodates the 10 strikes each for the Defense and the State, plus 12 jurors, for those of you not accustomed to picking juries) and then making the peremptory strikes.

Personally, I like the latter version because the attorney can make more educated strikes knowing what the entirety of the eligible panel looks like.  However, the first version could potentially be faster.  Either way, it is safe to assume this method of voir dire would take several days, if not a week or so.

The Powers that Be would probably argue that the length of voir dire is too long and that's why using NRG Arena is the better method.  I disagree.  If this method was followed, theoretically, all the courts in the courthouse could pick a jury whenever they wanted to.  Since mass panels wouldn't have to show up in person, it wouldn't violate the rules of social distancing.  The current plan at NRG is to only call four panels at a time, at most.

Even if the argument over expediency is ultimately won by those who support the NRG plan, expediency isn't the most important goal.  Not by a longshot.  Safety is more important.  And more important than both expediency and safety is fairness.  

This method allows both the State and the Defense to accomplish a meaningful voir dire session with the venire panel in a way that the NRG plan doesn't come close to.  Even though I'm sure there are multiple logistical flaws that I'm glossing over, this system is fairer to both sides.

It also makes things a hell of a lot easier for security for inmates in custody to be brought to proceedings by the Sheriff's Office.   

It also might save a little more money than that $16 million (and counting) already approved by Commissioners Court for the NRG plan.  I'm just saying.

Then again, nobody asked me.  

Nobody asked any of us trial lawyers.

Friday, July 17, 2020

NRG Arena and the Streisand Effect

I enjoy being a defense attorney.

At least on most days.  

It's not always easy -- especially when you find yourself in a jury trial.  

You often find yourself behind the 8 Ball.  Your client is charged with doing something unpopular -- sometimes really really unpopular.  Usually, the evidence is pretty strong against your client, so you're fighting an uphill battle.  In many instances, you find yourself trying to mitigate an outcome rather than avoid it.  When you're a defense attorney, home runs are far and few between.  Quite often, a base hit feels pretty damn good.

If the State asks for Life and you help convince a jury that 20 years is more appropriate, that's a win in most cases.  On those occasions where you get the big NG verdict . . . man, those are something.  If you have never been a defense attorney and you find it unseemly when you see a defense attorney crowing about a Not Guilty in trial, have a little patience.  Those are harder to come by than you might think.

More often than not, the job of a defense attorney is just doing everything in his or her power to ensure a fair trial.

And doing that begins with picking a fair jury.

Now, the idea of "picking" a "fair jury" is a misnomer if ever there was one.  First of all, as any trial lawyer can tell you, juries aren't selected.  Juries are the remnants of a jury panel where numerous potential jurors have been de-selected -- removed from consideration from serving on a jury because they either couldn't follow the law (and are stricken for Cause) or because either the prosecutor or defense attorney utilized one of their peremptory strikes to remove them from the panel.  Once those strikes are done, the first twelve remnants become the jury.  In many cases, the next one or two become alternates.

The art of that de-selection takes some work and brings a lot of dynamics into play.  The attorney (whether he or she is a prosecutor or a defense attorney) needs to be charismatic and convincing as an advocate.  As a defense attorney, you have to be cognizant of the fact that if the jury isn't going to like your client, you better be doing everything you possibly can to make them like you!  But more importantly, an attorney has to identify those potential jurors that are bad and sometimes fatal your case.

One of the few funny things I remember former-District Attorney Chuck Rosenthal ever saying was that if he was only allowed to ask a jury panel one question, it would be:  "How many of y'all came down here today just to f*ck me over?"  I get his point, but in more delicate terms, I've always considered jury selection to be the art of rooting out the time bombs -- finding those jurors who never ever ever were going to even remotely consider the possibility of giving you or your client a fair trial.

As a prosecutor, I ran into the occasional juror who was anti-establishment or had a bad experience with the police and couldn't be fair.  But it is far more prevalent to find jurors who can't be fair to the defense -- those who presume your client must have done something or else there wouldn't be a trial; those who presume that if your client doesn't testify that he must have done something; or those who would never consider probation (even when the law allows it) on a serious case.

As a defense attorney, you've got to find those jurors who are time bombs, identify them on the record, and get them removed from your damn jury.  The trial is going to be tough enough as it is, so it seems only right that you at least start off with a seemingly neutral jury, right?

It is not possible to overemphasize just how important jury selection is and how much goes into it.  An attorney has to ask the right questions, act the right way, read the jurors body language, their facial expressions, and make note of them for when it comes time to make those strikes.  And keep in mind, on felony cases, the lawyers are talking to (usually) 65 potential jurors and they have about thirty minutes to an hour to ask all their questions and get their analysis done.

The reason I bring this up is that I got invited to check out the facilities at NRG Arena today and get a feel for how Harris County plans to select juries in a post-COVID world.  I guess you get fancy invites like this when you do a lot of complaining on your blog like I was doing last Saturday with this post.  I wasn't the only one invited to attend.  Texas Criminal Defense Lawyers' Association President Grant Scheiner and Harris County Criminal Lawyers' Association President Mark Thiessen were there, along with criminal defense attorneys Joe Vinas and Chris Tritico.  The Harris County District Attorney's Office was represented by Colleen Barnett, Paul Fortenberry and Tanisha Manning.

The de facto hosts of the tour were Harris County District Clerk Marilyn Burgess and 152nd District Court Judge Robert Schaffer, who is the Local Administrative District Judge (as I pointed out in my last post).  There were several other representatives of the District Clerk's Office who also hosted and answer questions.  It was quite informative and all of us guests had our cell phones out and taking pictures.  No one seemed to be bothered about us taking the pictures and/or videos.  Why should they be?  As I mentioned in my earlier post, Burgess has already made a YouTube video of what the process would be like, and the Houston Chronicle ran an article with photographs of everything inside on July 6th.

I'll come back to that in a minute.

So, my thoughts on the theoretical process were . . . not positive.

I'm no doctor or epidemiologist, but there were several things that seemed problematic to me.  

For starters, there are two lines leading to two metal detectors for the potential jurors to go through on the way inside.  Each one has those little stickers on the floor to mark appropriate social distancing.


There are about twelve of those little social distancing stickers between the metal detectors and the door in each line, so mathematically, there will be twenty-four people in line in that area.  Everybody else will be lined up outside, waiting to get into the building.  I didn't get a close-up shot of it, but I'm talking about the area under the overhang in front of the building.


There are some signs there that tell people to stay six feet apart, but as of this writing, there isn't anything other than that to ensure social distancing outside the doors.

Once the potential jurors clear the metal detectors, they check in at a kiosk (using those single-finger condoms to register their presence) before going into the main pool room where they will wait to be called into smaller breakout panels.



The potential jurors will then be called out of this area into their panels for trial.  As of right now, there is only one room for actual jury selection that has been built out.  However, we were all told that they are building out this area into three individual rooms for jury selection.  The plan is to have 8 feet high partitions, with drop-down, soundproof "blankets" separating those three rooms.


As it currently stands, only one room is ready, and that's the room profiled in the Houston Chronicle where the Grand Juries were selected a few weeks ago.  The potential jurors who are guided to these rooms will be issued face shields to go over the mandatory masks that they will already be wearing.


Now, this picture doesn't really do the space justice.  It's looking dead on at the center section, although there are two additional sections to the left, and at least one section to the right (maybe two, I don't remember).  If you look closely, you may see little orange markers on every fifth seat, denoting where potential jurors will be seated in accordance with social distance.

If you'll remember, this area needs to accommodate roughly 65 potential jurors on a felony panel, and given the spacing, that takes us up around fifteen rows.  If you look closely, you may see TCDLA President Grant Scheiner raising his hand on that last row.  If you think he's hard to see in this picture, you have no idea how hard he was to hear.

Have no fear, though.  We were told in a meeting the day before that there will be helpers running up and down the aisle with "boom mics" to help us hear what those folks in the cheap seats are saying.


Speaking of what people are saying, Judge Schaffer told us during our tour that jurors would be required to lower their face masks when answering questions, but it would be up to the individual judges as to whether or not they kept their masks up or down during those times when they were not specifically answering questions.  And by the way, everyone (including the attorneys) will be wearing the face shields at all times. 

So, let's take a gander at what this will effectively look like during jury selection.

A lawyer will ask a question of a juror and will need to run up those stairs to engage with them if he or she wants to see the facial expression of the juror when they answer that question,  In the meantime, rows and rows and columns and columns of jurors will be behind that lawyer while he gets the answer from the one he or she has posed the question to.  Making the (wildly presumptive) assumption that the other jurors can even hear the response from the queried juror, it will be utterly impossible to see how the other potential jurors react to that question.

Most lawyers have at least one additional lawyer sit with them during a trial to help them take notes on the panel, but under this system, a lawyer is going to need five to six lawyers sitting with him or her to take notes.  This doesn't even begin to factor in those questions or responses that might draw objections from the opposing side and rulings from the judge.  

Other things not factored in:  the role of interpreters for non-English speaking clients, accommodations for handicap jurors and/or attorneys, time limits, potential visual aids, jury charts, and common sense.

For anyone who has ever picked a jury, it is patently obvious that this set up is absolutely not conducive to effectively picking a jury.  There is no way to see those time bombs.  Not even when they are sitting right behind you. 

Any attorney who willingly agrees to this set up is committing malpractice, in my opinion.

So, here's where things get interesting.

Apparently, the Powers that Be who invited us out to this tour of NRG Arena assumed our reviews would be positive.  As I mentioned above, nobody blinked when we were all taking photographs and videos.  I posted that picture of Grant Scheiner in the back row on Facebook with a semi-sarcastic comment about not being able to hear.

So, I was kind of surprised when I got back home from the tour to receive a message from my answering service reflecting a phone call from Clay Bowman, the District Courts Administrator.


I'd gotten an e-mail from Clay, too.


So, I called Clay back.  He seemed a little nervous and just kept insisting that he was just relaying a message from Judge Schaffer. 

Apparently, that message was that if I didn't have anything nice to say, then I didn't have permission to use a picture of NRG Arena at all.    I responded that I found that pretty confusing in light of the pictures being utilized in the Houston Chronicle article and Marilyn Burgess's YouTube video.  But, those were different.  Those portrayed the use of NRG Energy in a positive light.  Mine did not.

So, I took my picture down and replaced it with a post explaining what had happened.  I think it ended up being a crystal clear example of the Streisand Effect. The reaction to that was far angrier than my original post of Grant in the back row.  I also talked about what happened on Reasonable Doubt.  I heard from several attorneys who expressed their opinion that while filming or photographing a criminal proceeding must be permitted by a judge, a still photo of a bunch of mostly empty seats didn't fall under that description. 

But to be on the safe side, I heard from a few judges on the misdemeanor and felony side of things who were more than happy to give me permission to use my photos, because they believed they promoted the transparency the system needed.  Shout out to Judges Andrew Wright and Brian Warren for the judicial blessings!

And to Judge Schaffer, I'm sorry for the misunderstanding.  I know you and a great many other people are doing the best you can to make this system work.  Respectfully, I just disagree that it will.  I think it puts jurors' health at risk, and I think it will deprive my clients of a fair jury to hear their cases.

I'm sorry to hear that you feel I need permission before I can use a picture of an empty bunch of chairs to express that.

It seems like there are much more important things at stake at the moment.

Sunday, July 12, 2020

The Nuts and Bolts of Reopening Jury Assembly

As I mentioned in my last post, I consider Judge Susan Brown to be a friend, despite the fact that I occasionally disagree with her (as I did in said last post).  So it was no surprise to me when I woke up this morning to find that she had already sent me a text message in response to my post from the night before.

So, I gave Judge Brown a call this morning and we talked for about an hour and a half about the often complicated (and confusing) details that are going on behind the scenes to manage the Criminal Justice System -- in Harris County and across the State of Texas.  I learned quite a bit of information that I didn't know before and I thought it was important that any attorney practicing in Harris County understand it.  

It's complicated so I will try to organize this in a way that makes sense.

1.   Judge Brown taking exception to this being labeled as "her plan" is understandable.  It is far more complicated than that.

When COVID first started taking hold around March, the Texas Supreme Court tasked the Office of Court Administration (OCA) with sending a letter to all of the individual judges (from Justices of the Peace on up), instructing those judges to formulate a plan that would ensure court operations were running safely before allowing in-person settings.  Personally, I don't consider that to be a controversial goal to pursue.  Obviously, the administration of Criminal Justice wasn't something that could be put on the backburner.  

According to Judge Brown, the OCA provided a template to the different jurists that they had to comply with.  That template required approval from both the local county governments across the State, as well as the Health Department before it could be considered for approval by the OCA.  Without the OCA's approval, the court in question could not have operations.

A chain of command was established to help facilitate the proposal of these plans to the OCA and the subsequent approval of them.  As the Presiding Judge (or "PJ" as the cool kids call it, apparently) of the 11th Administrative Judicial District, Judge Brown's role was to work alongside local judicial entities in communicating the plans.  In Harris County, 152nd District Court Judge Robert Schaffer holds the title of Local Administrative District Judge (LADJ -- I learned a lot of new acronyms today).  In this chain of command scenario, Judge Schaffer is tasked with being the coordinator for all of the District Court Judges in Harris County (Civil, Criminal, Juvenile, Family, Probate, etc.) and facilitating a plan between those judges and Judge Brown.

So, when Judge Brown takes exception to the NRG Arena Plan being called "her plan," it's because there are a lot more people involved in this than just her.  She described herself as more of a facilitator than a planner in the process, noting that she has also been tasked with facilitating plans for the other counties in the 11th Administrative District.

2.  There are Phases

The letter that I mentioned above (the one that went out to all the different judges in March) only addressed the first step of requirements holding in-person appearances.  It was compliance with those requirements set out by the OCA that allowed the individual District Courts to open courtrooms within the CJC and Civil Building for in-person appearances.  ("Yay!" said no one.)

Judge Brown pointed out that there had been a template that had to be filled out for the basic step of in-person settings, and that (as of this writing) no such template for jury trials is even in place yet.  In other words, there is still a lot to be accomplished before jury trials start happening. 

Additionally, there are two phases within the planning of jury trials, which Judge Brown described as the "Facilities Plan" and the "How to Do Jury Trials" plan.  The information regarding NRG Arena being procured for jury assembly is obviously part of the facilities plan, and that is the phase that those making the plans are still actively in the middle of.  

The phase of "how to do jury trials" is still to come and Judge Brown acknowledged that there were going to be a lot of kinks to work out.  For instance, the jury rooms in the CJC and the Civil Courts Building are two small mathematically to permit 12 jurors and an alternate or two to socially distance inside of them.  She noted that the plans being informally discussed involved trials occurring in one courtroom and an adjacent courtroom being utilized as a de facto jury room.  (NOTE:  remember this tidbit because I'm going to come back to it.)

3.  How we got to NRG

Judge Brown noted that our beloved underwater jacuzzi Harris County Jury Assembly Building is still undergoing repairs for damage sustained during Hurricane Harvey.  I was under the impression that Harris County had gone back to using the previous jury assembly room in the building that houses the Harris County Law Library.  Apparently, I was mistaken about that.  The jury assembly room is currently a hastily constructed room inside the Administration Building and it was deemed too small to be able to accommodate a panel larger than 40 people with social distancing in place.

She stated that there had been discussion of holding jury assembly at the George R. Brown Convention Center, but that idea had fallen through for some reason.  At some point, the people at the NRG facilities got in touch with Harris County officials and ultimately an agreement was made that NRG Arena would be the best place to conduct jury assembly when it came time to do it.

4.  The Texas Supreme Court reigns Supreme

Judge Brown repeatedly emphasized that all of this planning for jury service is an effort to be prepared when the Texas Supreme Court mandates that Texas Courts are allowed to resume jury trials.  As it currently stands, that target date set by the Supreme Court is September 1st.  I anticipate that as COVID numbers continue to increase, that date is going to be pushed back again.  And probably again and again for the foreseeable future.  

She noted that the plan of all those involved was to be ready when the Supreme Court announced it was time to go back to work.

5.  Yes, there are exceptions to that shifting date set by the Supreme Court

Judge Brown acknowledged that the Supreme Court's rules currently provide that jury trials can be held right now under certain circumstance, and noted that Bowie County had recently held jury selection in a school auditorium.  She noted that Bowie County didn't go rogue in doing this, but had formulated a plan that had been approved by the OCA prior to holding the trial.

We didn't talk specifically about NRG Arena being used for jury assembly purposes in the selection of Grand Jurors earlier this month, so I'm not sure if that was something that had to be approved by OCA or not.  She did indicate that normal jury assembly operations were not set to begin prior to September 1st and that if the Supreme Court pushed that date back, jury assembly would be pushed back at NRG Arena in compliance with the Supreme Court's order.

6.  Who all has input into how things are going to be done?

Judge Brown said that by virtue of the letters sent to individual jurists by the OCA in March, all judges across Texas and Harris County were per se invited to give their input.  She noted that not all judges were coming to regular meetings but assumed that their interests were being represented by Judge Schaffer in his capacity as LADJ.

She stated that there were two standing committees currently in Harris County -- a jury committee and a reopening committee -- and that both committees were open to all of the judges.  She acknowledged that these meetings were not open to anyone other than the judges.  Specifically, she noted that the elected District Attorney, Kim Ogg, was not a part of either the reopening committee or the jury committee.

Judge Brown said that immediately following the jury meeting and the reopening meeting, they have been holding a "Department Head Meeting."  She stated that at this meeting, non-judicial people are allowed to attend for the first time (in the scheduled chain of events).  She said that D.A. Ogg's first opportunity to be heard comes at this juncture and that Defense Bar representatives are welcome as well.

7.   Random thoughts and things of interest

Judge Brown noted that Impact Court as it currently operates will cease to exist (sort of) under the reopening plans, and logistically, that makes sense.  Since the idea of Impact Court (in theory) was to establish additional courts when all of the other courts were running at full capacity, it becomes unnecessary because "capacity" became drastically redefined by COVID.  

As I noted above (in that "tidbit" that I told you to remember), if courtrooms are being conscripted into duty as de facto jury rooms, it's going to be a really really long time before Harris County sees all four courtrooms on a floor of the CJC operating at the same time.  There isn't going to be a need for Impact Courts, because there isn't going to be any physical room for Impact Courts.  She did note that the entity known as "Impact Court" would continue to exist, but for different reasons.

Although she didn't completely confirm this, she indicated that those cases going to trial would be the oldest ones where the Defendant was still in custody, which makes perfect sense.  In a hypothetical situation, if the top three oldest cases were all filed in the same court, the judge of that court could go to trial on the oldest case, and an Impact Court judge might be called in to try the second oldest case.

She agreed with me that the District Court Judges would be hard-pressed to justify going to trial on a bond case while custody cases set for trial remained.

In the end, she stated that District Court Judges would still be in charge of their own trial dockets and nobody would be forcing them to go to trial if they didn't want to.  She laughed at the idea of her forcing judges to go to trial against their will and wondered why people would think she would do that if she could.  I told her that we all just remembered her excitement about going to trial from her days in the 185th.  She laughed and said she understood.

8.  Takeaways

Despite these clarifications, I still think it is important to encourage Harris County Judge Lina Hidalgo to remove Item 15 from Tuesday's agenda, as I covered in my last post.  My reasoning doesn't have anything to do with Judge Brown, however.

My reasoning is that, in my opinion, if Judge Hidalgo approves the almost $2 million for security at NRG (along with any other funding), she will be relinquishing any remnants of local control she has of how jury selection is done in Harris County.  In essence, she will have written a check to State control that can be cashed at any time.  

Throughout the COVID crisis, Judge Hidalgo has consistently erred on the side of caution when it came to governing in a pandemic.  She's faced relentless backlash from the State in the form of Governor Abbott saying she overstepped the bounds of her job.  She told people to put their masks on and he told them it was fine if they took them off.  Two months later, and now it is Abbott telling everyone to put their masks on and he's about to shut down the State.


She was right then.  If you disagree with me, feel free to come at me in the comments.  

I've got a lot more faith in her decision-making ability than I have in our State Government's, and I hope she doesn't give away that control