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.

Thursday, September 22, 2016

Dan Gerson

The Harris County Criminal Justice Community lost one of our legends overnight with the untimely passing of our friend, Dan Gerson.  He had been battling cancer for some time now, and although this loss was not unexpected, it doesn't make it any easier to deal with.  From judges to prosecutors to defense attorneys to police and court personnel, everyone seems to have known Danny and to know the guy was to love him.

In a building that is already brimming with personality, Dan was a standout.  Easily one of the most well-dressed attorneys, he alternated between the laughing friend that you always enjoyed talking to and the formidable attorney representing his client.  He did so seamlessly.  He was thoughtful, perceptive, funny, suave and kind.  A fellow attorney, commenting on Facebook, noted Dan's "quiet grace" and I can't think of a more succinct way to describe him.

He certainly wasn't an over-the-top type of lawyer.  He was quiet, yet gregarious.  Serious, yet bitingly funny.  He told war stories that were engrossing, and I never heard him tell the same story twice.  He was sincere and asked about your family, and he truly wanted to hear the answers.  He adored his family and he loved hearing about his friends' families too.

Dan was also a gateway to the history of Harris County Criminal Justice.  He literally had been practicing law since I was one year old.  He fully grasped how fascinating the cases and personalities that had passed through the hallways of the courthouses were and he would tell the stories.  He always downplayed his roll in them, but he recognized how important knowing those stories.

I've always said that the best thing about practicing in Harris County was that we younger lawyers got the opportunity to walk amongst Giants.  Dan recognized that principle in telling the stories of the old days, but he never acknowledged that he was a Giant himself.  

Dan had battled serious illness before and defeated it.  He made a point to check in with those who went through their own medical battles later on.  He was a kind and caring man.  

He also had a great sense of humor.

Those of us in the courthouse community have known that Dan was quite ill for some time.  Although we all hoped for the best, we have all known for awhile that our time left with him was running short.  Not quite as short, however, as some thought.  A month or so ago, an attorney erroneously notified the HCCLA Listserve that Dan had passed away.  Given Dan's prominent place in the community, word of his passing spread like wildfire.  Fortunately, the information was premature, and Dan took to Facebook to let his friends, family and fans know that the rumors of his demise were greatly exaggerated.

There are few people in the world who could have appreciated the humor of such a false rumor like Dan did.  It also gave all of us an opportunity to pour out our emotions and tell him how much we loved him and were relieved that he was still with us.  If there was ever something positive to come out of a false rumor, I suppose this may have been the one example.

Dan was a true Renaissance man, and he easily had one of the most entertaining Facebook pages on the internet.  The travels with his family and the cool cars and cool places were always fun to see.  Few people possess Dan's self-confidence.  Only he would have the confidence to be a skinny bald man rocking the striped Speedo in the 80s.

The last time I saw Dan, he told me he was having to go back for more treatment and would be out for a while.  As always, he was smiling, upbeat, and funny.  He knew what he was about to start, and he still exhibited that quiet grace.  About a week ago, his wife posted a picture of Dan as he was walking into chemotherapy.  Dapper as always, he was wearing a collared shirt.  He was suave even in the worst of times.

There was a definite sadness in the courthouse about the loss of our friend, today.  He made his mark there and he was truly loved.  The place will truly not be the same without him.

I'm not alone in saying that I will miss my friend very much.

Thursday, August 25, 2016

Fundraiser for Judge Stacey Bond

There will be a fundraiser for the re-election campaign for 176th District Court Judge Stacey Bond coming up next Thursday, September 1st at Ladybird's at 5519 Allen, Houston, TX from 4:00 p.m. - 7:00 p.m.

Judge Bond has been an outstanding judge in her first term in the 176th.  She knows the law, follows the law, and holds all sides to the same standards.  I sincerely hope you will join me in supporting her for re-election!

Thursday, August 11, 2016

Congratulations to Alex Bunin

Congratulations are in order for THE Public Defender, himself, Alex Bunin for being named the winner of the Champion of Public Defense Award by the National Association of Criminal Defense Lawyers today.  The award is given to the attorney who demonstrates "exceptional efforts in making positive changes to a local, county, state, or national public defense system."

Alex has a lengthy and distinguished career in indigent defense and the Harris County Public Defenders' Office has become yet another one of his many success stories.  As I've said before, when I was leaving the D.A.'s Office, I was petrified of the creation of a Public Defenders' Office and the possibility of available cases drying up.  Alex made sure that the PD's Office was an asset to all defense attorneys practicing in Harris County.  His office routinely puts on CLEs for attorneys and has become an important and respected voice in the CJC.

He's also fielded a team of excellent trial and appellate attorneys who are willing to share their time and expertise with any attorney needing help.

None of this could have developed without Alex's diplomacy and leadership.  He is absolutely deserving of this award, and I'm proud to call him my friend.

Saturday, August 6, 2016

Judge Marc Carter Wins William H. Rehnquist Award for Judicial Excellence

Tremendous congratulations to 228th District Court Judge Marc Carter, whose longstanding dedication and hard work with veterans charged with crime has earned him the prestigious William H. Rehnquist Award for Judicial Excellence.  The award is given to only one judge a year, and is presented by Chief Justice of the Supreme Court, John Roberts, during a dinner ceremony at the Supreme Court in November.

Judge Carter was selected by the National Center for State Courts who awards it to a judge "who demonstrates the outstanding qualities of judicial excellence, including integrity, fairness, open-mindedness, knowledge of the law, professional ethics, creativity, sound judgment, intellectual courage, and decisiveness."

They made a great choice, because Judge Carter is the embodiment of that description.

Judge Carter, who as most of you know, is an Army veteran himself, has been helping lead Harris County's Veterans' Court for years now.  His temperament and background has made him the perfect leader for the program.  He follows the law, but he is truly guided by compassion and a sincere desire to help.  Veterans struggling with mental health or addiction issues are given second (and sometimes more) chances to readapt to society.

Judge Carter's compassion doesn't extend solely to veterans, however.  He has shown time and time again a willingness to save those people who appear before him who have a chance to be saved.  He has the unenviable task of balancing between protecting society and not throwing away people who can still be productive members of that society.  He does so with kindness, compassion, and intelligence on a daily basis.  

With his standard humility, Judge Carter has passed all of the credit for this prestigious award to the staff of both the 228th District Court (and coordinator extraordinaire Vanessa Guerrero) as well as Mary Covington and the staff of Veterans' Court.

The attorneys who practice in the 228th could not be happier nor prouder of Judge Carter.  It is hard to imagine a more deserving recipient.

Friday, July 22, 2016

David Hilburn is still Alive and Well

From our Bad Rumor-Squashing Department . . .

I was asked today by a concerned attorney whether or not beloved former prosecutor (and Brazos County) David Hilburn had passed away.  Since Dave is a really good friend of mine, I was pretty sure I would have heard that news, but I texted him to be sure.

Dave was happy to report that he is still alive and well, but acknowledged that this was the second time this week that someone had texted him to ask if he was dead.

Apparently, another David Hilburn passed away recently and that David was a friend of a friend on Facebook, who had subsequently posted "RIP David Hilburn," and that's where the confusion began.

So, rest easy friends, Dancing Dave is still not dead.

Wednesday, July 20, 2016

Rocks, Hard Places and Writs of Attachment

Last night, Channel 2 KPRC's Jace Larson profiled the disturbing story of a sexual assault victim who had been placed in the Harris County Jail on a Writ of Attachment after having a nervous breakdown in the trial against her attacker.  The details of the story are mortifying:
After a rape victim named Jenny had an obvious mental breakdown while testifying against her attacker, Harris County prosecutors decided the best way to make sure she'd return to complete her testimony was to lock her up in the Harris County Jail.
From there, things went from bad to worse.  The report, paraphrasing the lawsuit filed on "Jenny's" behalf by attorney Sean Buckley noted:
Buckley says his client was put in jail without due process, given a black eye by another inmate while kept in jail for nearly a month over Christmas. Jenny also suffered injuries when she was punched by a jailer after she attacked the guard. Jenny was charged with assault but prosecutors later dropped the charge. 
The idea of arresting the victim of an Aggravated Sexual Assault on a Writ of Attachment is a PR nightmare, isn't it?  It certainly flies in the face of a District Attorney's Office mission statement to seek justice for the victims of crime, right?  Are prosecutors so desperate to win their cases that they will stop at absolutely nothing?  Even if it means locking up a mentally ill victim of rape?

Well, ultimately, although the actions taken by the District Attorney's Office may have been illegal, the motivation isn't quite as sinister as the news article would make it out to be.

The case surrounds the trial of Keith Hendricks, an accused serial rapist who was believed to have targeted homeless women in Downtown Houston.  His case had previously garnered media attention when the media was focusing on the backlog of DNA testing from HPD.  A glance at this article from March 2015 notes:

Another suspect, Keith Edward Hendricks, a homeless man convicted of a 1978 rape in Indiana, is now facing four sexual assault charges from 2006 to 2013.  Officials said Hendricks attacked homeless women, luring them to abandoned buildings and raping them, sometimes while brandishing weapons such as a box cutter.
A kit in the city's backlog first tied him to a 2006 sexual assault.  One year after that alleged rape, he was ordered to submit a DNA sample on another sexual assault charge.  Had officials tested the 2006 kit, it might have spared a victim in an alleged 2013 rape. 
But the women accusing Hendricks of rape may have been difficult to put on the stand, said Jane Waters, head of the district attorney's special victims bureau.  Many of the women were homeless, and some had drug or alcohol addictions. 
Although a brutal crime still is not ever justification for breaking the law, this does give some insight into the scenario that arose around "Jenny."  The D.A.'s Office had evidence indicating that Hendricks was targeting transient and mentally unstable women, and Jenny apparently fit that description.  The prosecutor tasked with handling that type of case has a tremendous challenge of getting his witnesses to just show up.  Obviously there is a public safety interest and justice needs to be served, but that can be easier said than done.

The prosecutor on the case was Nic Socias, who is named in both the KPRC story and Buckley's lawsuit.  I know Nic and I've worked on cases with him.  He is a good prosecutor and an ethical one.  In my experience, he's always been a standup guy.  Unfortunately Nic found himself in the middle of a trial where he was not only prosecuting a man accused of doing horrible things, but also one that was a continuing danger to people just like "Jenny."  Her breakdown on the stand may or may not have been expected, but her unreliability certainly had to have been anticipated.

To take a dangerous man off the streets, Nic had to have Jenny's testimony.  The problem he had was there was no legal mechanism for making sure that Jenny came to court.

As Buckley noted in his Complaint:
Texas state law authorizes a judge, upon request by a party, to issue an “attachment” order and/or a “witness bond” to hold a material witness in custody without bail, or release her subject to posting bail, respectively. An attachment order was unauthorized because [Jenny] was not subpoenaed as a material witness and was not a resident of Harris County. See Arts. 24.12 and 24.14, Tex. Cd. Crim. Proc. Nor could [Jenny] be held on a witness bond, since the applicable statute prohibits jailing witnesses who are, as [Jenny] was, financially unable to post bond. See Art. 24.24, Tex. Cd. Crim. Proc.
Article 24.12 states that a writ of attachment is possible for "a witness who resides in the county of prosecution," but in this instance, Jenny was apparently a resident of Gregg County.  I'm not sure about the allegation that she hadn't been subpoenaed as a material witness, but that jurisdictional issue could potentially be a big problem.  Additionally, Article 24.24 does clearly state that if "any witness is unable to give security upon such bail, he shall be released without security."

What followed after the Writ of Attachment was executed on Jenny was a series of unfortunate events that continuously went from bad to worse.  Although initially Jenny was being housed in a mental health facility, she ultimately ended up in the Harris County Jail.  Once in the jail, Jenny was treated like any other inmate accused of a crime.  She was listed as being there for a Sexual Assault case, and apparently jail personnel missed the designation of her being there as a Witness, rather than as a Defendant.

As Buckley notes in his Complaint, what happened to Jenny after that does truly resemble a Kafka novel.
“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” —Franz Kafka, The Trial.
Ultimately, what happened to Jenny is what we risk when we follow the adage of "well, we've always done it this way."  Uncooperative witnesses who prosecutors know (or believe) won't show up for trial get Writs of Attachment filed on them.  Unfortunately, it doesn't appear that the parties involved looked at the Code of Criminal Procedure before taking Jenny into custody.

In most instances of Writs of Attachment, the witness is held overnight or for a few days at most.  In Jenny's case, there was a break in the trial for the Christmas holidays that led to an extended stay for her.  That's how all Hell broke loose.

Whether or not the D.A.'s Office and all the named parties in Jenny's lawsuit are protected by governmental immunity is something that will be decided by the Federal courts.  I don't practice civil law, so I won't make any predictions.  I do think Jenny's rights were violated and what happened to her compounded an already tremendous tragedy.

That being said, I have a hard time throwing any stones at Nic Socias or the District Attorney's Office.  Prosecutors often have to proceed on cases in the interest of justice, even when the victims don't want to cooperate.  I can recall more than one case I prosecuted where a child was being sexually abused by an adult relative and nobody in the family wanted it prosecuted.  To accuse Nic or the District Attorney's office of not caring about Jenny or other victims of sexual assault is just simply not true.

Unfortunately, the road to Hell is often paved with good intentions, and this whole incident reminds me of the infamous quote from Vietnam that said, "It became necessary to destroy the town to save it."

Whatever the outcome is of this case, I feel sorry for all involved.

Monday, July 18, 2016

The Perils of Politicians Pandering

Ugh, politicians.  They truly can be nauseating critters.

In most cases, the Empty Suit style of shaking hands and kissing babies is innocuous enough.  I mean, if a vote is earned because someone agrees with your gutsy stand that babies are cute, more power to you.  Sadly, the voting public has proven time and again to not be all that hard of a sell when giving up its vote to style over substance.  I could expand on this, or you could just switch over to any major news channel and you'll get the point.

Try as I might, though, I just can't get past the frustration of watching elected officials allow political pandering to seep into the criminal justice system.  As I've written time and time again, partisan politics have no place here.  If a candidate wants to sit on a criminal court bench or run for District Attorney, his or her position on abortion, gay marriage, foreign policy and taxes are irrelevant to their job description.  In theory, those who hold elected positions in the criminal justice system should be governed by the law and only the law.  What they do should be insulated from politics of any kind.

Unfortunately, the horrific events in Minnesota, Louisiana and Texas over the past weeks have practically begged for hardcore Republican politicians to prove to the electorate how pro-police they are.  There's nothing wrong with being pro-police, mind you.  I've never been shy at expressing my admiration for police officers and the jobs they do.  I admired them as a kid.  I admired them as a prosecutor.  And even though I've heard them grumble about my move to the "Dark Side," I continue to admire them now as a defense attorney.

The killing of eight officers in Dallas and Baton Rouge hurt my heart and they make me worry for my friends who are police officers locally and around the country.

And before someone starts asking, "Why are you only talking about the deaths of police officers and not the killings of Alton Sterling and Philando Castile?", bear with me.  I'm not writing this particular post to compare the worth of competing tragedies, but I will talk about them in a moment.

Today, Texas Governor Greg Abbott announced that he would be proposing what he called the Police Protection Act, to the cheers and accolades of all police-loving Republicans everywhere.  If the Act passes (and what good politician would ever oppose a law that protects the police?), if a crime against a police officer is proven to be motivated by the hatred of police officers in general, then that crime can be found to be a "hate crime" and raised to a higher degree of crime.

Uh huh.  Now, let's talk about that for a minute.

As noted in the Governor's press release, police officers (in their capacity as public servants) are already treated as a protected class under the laws of the State of Texas.  If you punch me in the face, the worst you are looking at is a year in the county jail, and perhaps an enthusiastic hug from Pat Lykos.  If you punch a police officer in the face, you are looking at spending the next ten years in prison.

If you were to take a gun and shoot me in the leg, you would be looking at a maximum of twenty years in prison.  If you shoot a police officer in the leg, you would be looking at Life in prison.  If you shoot me and kill me, the worst thing that could happen to you is Life in prison.  If you shoot and kill a police officer, the Death Penalty is most likely going to be sought.

The point is, Texas Law already has very harsh upgrades in punishment when the victim is a police officer.  Abbott's proposals under the Police Protection Act will have very few practical upgrades in punishment, but damn, it sure does show how much he loves police officers, doesn't it?  Okay, if you punch a police officer in the face solely because you hate police officers, you could be looking at up to twenty years rather than ten.  Of course, the prosecutor is going to have to prove up that hatred of police officers was your sole motivation  -- not as easy as it might sound.

But it isn't as if an Aggravated Assault on a Public Servant can be upgraded from a first degree felony to a capital offense without a fatality.  The big thing that Abbott's proposal does is call for police officers to be treated as a "protected class."  However, police officers already are a protected class.  The Act is 99% pure pandering and Republicans are loving it.

Although I'm not a big fan of Governor Abbott in general, one can forgive him for his pandering.  Even though he is the former Attorney General of Texas and should be a little embarrassed over it, "Feel Good Legislation" is part of a Governor's job description, I suppose.

That can't be said for Criminal District Court Judges, however.  An honorable Criminal Court Judge is the one guided by the law and only the law -- public opinion be damned.  Law above politics no matter what the fallout, right?

Apparently not if you are Judge Kerry Neves of the 10th District Court of Galveston County, who made a post on his Facebook page today, which read as follows:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will play a big role in whether any such agreement is approved.
If approved, the defendant will be required to read the statement in open Court.
I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

I love the last paragraph.  "I may only be one person, one Judge . . ."  Martyrdom is a lonely business.  "If you are a registered voter an officer, spouse of an officer or know an officer, make sure they know of this change in my Court."  At some point, there seems to be a very fine line between showing solidarity in the wake of a tragedy and capitalizing off of it.

What better way for a judge to announce that he has prejudged the credibility of absolutely every officer that will ever testify in his court and graded that credibility as Immaculate?  What better way to announce that, as an elected judge, you cannot be open to the full range of punishment on any case where a law enforcement officer is the victim?

So, the kid that runs three feet from a police officer before getting tackled doesn't get probation, huh?  The guy that elbows the officer in his bulletproof vest is looking at a minimum of 2 years TDCJ in your court?  That Facebook post pretty much assures us that there are no shades of gray in Judge Neves' court.  As my friend Jeremy Gordon pointed out, if you are a defense attorney in Judge Neves' court, you better have a Motion to Recuse ready, unless you want to be ineffective.  Politics have forced out any minimal appearances of judicial neutrality.

Which brings me to the killings of Alton Sterling and Philando Castile.

I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them.  My personal opinion is that it looks pretty damn bad for the police officers involved.  I'm not a police officer and I wasn't there, but what I've seen merits a trial.  I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.  

I recognize that police officers have dangerous jobs and risk their lives on a daily basis.  They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter.  Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer.  This isn't a call for conviction.  It's a call for examination and accountability.

I can't imagine any rational mind looking at the videos of the deaths of Sterling and Castile and thinking that neither of them deserve any level of scrutiny.  To feel that way exposes a level of bias that is contrary to the principles of criminal justice.

It's apparently a level of bias that Judge Kerry Neves is quite comfortable with.

Friday, July 8, 2016

Simple Tragedy

Like most of you, I've been stunned by the events of the past several days.  The deaths of Philando Castile and Alton Sterling followed by the attack in Dallas have illustrated that there is now a clear war between those who support #BlackLivesMatter and those who support #BlueLivesMatter.

This is the moment we've been waiting for, right?  The official declaration of war?

For years, every time a black male died at the hands of the police, it indicated a war was coming.  Every time a police officer died at the hands of a black male, it was a war coming.  The events of this week have surely removed all doubt that we now have a full-fledged war, haven't they?  Clearly the videos graphically depicting the deaths of Castile and Sterling prove a systematic targeting of black males by homicidal cops.  Correspondingly, no one can argue that sniping 12 cops from an elevated position isn't "targeting."

We obviously have two very homicidal groups of people clashing with each other now, don't we?

To find sympathy and understanding towards one of those groups is to most decidedly turn your back on the other.  If you think that Castile and Sterling should still be walking the Earth today, you are quite obviously a Cop Hater.  If you think that Micah Xavier Johnson was nothing more than a coward and a murderer, then clearly you have no sympathy or understanding for the plight of African-Americans who face police brutality on a daily basis.

You simply must chose a side, for better or for worse.  Failure to do so only earns you the disdain of both sides of this war.

Many moons ago, when I was in college, I took a sociology class where the professor made the off-hand comment that the only taboo that was acknowledged in all cultures was treason.  Initially, the statement seemed overly broad.  However, if you think about it, it makes sense.  Across the globe, there are some cultures in some places that will condone killing, stealing and raping.  None of those cultures, however, will tolerate betrayal.

As a former-prosecutor-turned-defense-attorney who still holds a great general admiration for the people of law enforcement, I think about that statement often.  When I blog in defense of a police officer (or prosecutor), I'm occasionally treated as being quite treasonous by the Defense Bar.  I used to be a member (and board member) of the Harris County Criminal Lawyers Association, but my ties to old friends from the D.A.'s Office and my work on Cold Justice ultimately led to the end of that relationship.  Conversely, when I criticize decisions of the District Attorney's Office or the police department, I suffer the same level of ire and criticism.

Man, it's rough out there trying to think independently.

But, I digress.

At the end of the day, in the immortal words of Obi-Wan Kenobi, "Only a Sith deals in absolutes."

Although it may be more satisfying to pick one side or the other, there are no such things as absolutes when it comes to humans.

Some of the most honorable, intelligent, brave, and selfless people I have ever had the honor to know wore a badge.  I may not have always agreed with them, or wanted to hear what they had to say, but in the vast majority of cases, I didn't doubt their honesty.  On the other side of the coin, I've spent the past seven and a half years of my life representing people accused of crimes -- from the innocuous to the heinous.  Some were guilty.  Some were innocent.  All were humans that had a story to tell and a reason for being in the position where I first found them.

None were the monsters that prosecutors often believed them to be.

The events that led to the deaths of Philando Castile, Alton Sterling, Lorne Ahrens, Michael Smith, Michael Krol, Patrick Zamarippa, and Brent Thompson were events that are a sad reflection of what the world is like today.

But they aren't a reflection of a "war."

There are horrible police officers out there who will use their badges as a license to lie, cheat, steal, brutalize, and sometimes, murder.  It cannot be denied that this happens, much more than we are comfortable admitting.

And of course, there are citizens who will lie, cheat, steal, brutalize, and sometimes, murder, albeit without the protection of a badge.  These are things that cannot be effectively prevented, unfortunately.  As much as we try, wish, train against, pray for, or teach about, there is no way to wipe out those who seem to truly enjoy harming their fellow man.

We flock to causes in the delusional belief that we can, though.

Yesterday, prior to the attack in Dallas, I watched a Facebook skewering of an individual who had dared to say "All Lives Matter" in response to a friend who had posted about #BlackLivesMatter.   Man, it was brutal.   This person was clearly going to perpetuate more deaths with an "All Lives Matter" posting, and thank God, Facebook was there to shout her down.

Four hours later, I was reflecting on the fact that five police officers went to work their shifts that day and never came home.  They said goodbye to their families with the assumption that they would see them again in a few hours, but those simple reunions would never happen again.

The families of Philando Castile and Alton Sterling would sympathize.

I'm rambling.  I know.  But in my opinion, none of this should be described as a "war."

It may make us feel better to pick a side and run with it, but that solves nothing.

This is simple tragedy.

Wednesday, July 6, 2016

Just an Observation

I was talking to a friend and fellow defense attorney today.  He told me about a recent experience with a younger prosecutor who had claimed being ready for trial and announcing that a case was "first up."  As it turned out, the prosecutor was not only not ready for trial, but also knew that the court wasn't going to trial that week -- the bold announcement of being "ready" and "first up" were merely ploys to get trial counsel to take a plea bargain.  The ploy failed, although the defense attorney spent his three-day weekend prepping for a trial that the prosecutor knew damn good and well wasn't going to be happening.

This particular maneuver by a prosecutor isn't a new one, but it is definitely chickenshit.

Our conversation then turned to the departures of three felony Chiefs and one very senior Felony Two from the D.A.'s Office in the past two weeks.

"You think they (the four departing prosecutors) ever would have pulled that shit?" I asked, referencing the younger prosecutor's maneuver.

Of course the answer was no.

The prosecutors leaving the Office right now are the exact types of people that shouldn't be leaving, and something needs to be done to stem the bleeding.

That "something" may not win any additional votes, but it goes a long way towards fulfilling that oath about seeking Justice.

Tuesday, June 21, 2016

Aggravated Robbery and the PSI Blockade

NOTE:  The first half of this lengthy post explains the law to people who don't regularly deal with criminal law.  If you already know criminal law, jump down about ten paragraphs and start reading.

Aggravated Robbery.

The name of the charge just sounds menacing.   The first degree felony is punishable by between 5 years and 99 years or Life in the Texas Department of Criminal Justice -- just like a Murder case.  Also like a murder case, there are countless ways that an Aggravated Robbery can be committed -- from the dramatic bank robbery with guns blazing and people injured to the proverbial starving mother who pulls a kitchen knife while shoplifting bread to feed her family.

Because there are so many different ways that an Aggravated Robbery can be committed, it is understandable that such a wide range of punishment is available for the offense.  Some cases clearly merit a higher sentence, while others do not.  However, because Aggravated Robbery is considered such a serious offense, a person who is convicted of it can only be given probation by a jury under Section 42.12 (3)(g) of the Texas Code of Criminal Procedure.  In other words, a Defendant on trial for Aggravated Robbery cannot ask a judge to give him or her probation if they are found guilty.  Only the unanimous verdict of the jury can save them from prison at that point.

The exception to this, of course, is Deferred Adjudication.  For those outside of the legal profession, Deferred Adjudication is where a judge finds sufficient evidence to find a Defendant guilty, but withholds a finding of guilt and places them on community supervision instead.  Since there isn't a final conviction, the Defendant can avoid prison as long as he or she successfully completes the terms of community supervision.  The downside to receiving Deferred is that if the Defendant screws up probation, he or she is only entitled to a hearing to the judge and the judge has the power to sentence him or her up to 99 years or Life in prison.

As a general policy, the Harris County District Attorney's Office will not offer a Deferred Adjudication to any Defendant accused of Aggravated Robbery.  I'm not a big fan of sweeping policies that forbid ever offering certain types of punishment for certain types of crimes.  Any lawyer that has handled felony cases for over a month realizes that there are exceptions to every rule and no matter how serious the words "Aggravated Robbery" sound, there are many some cases where a prison sentence just isn't the appropriate punishment.

Unfortunately, no District Attorney ever got elected on a platform of being "more understanding on violent crime."  I understand why such a policy exists, even if I don't agree with it.

Historically, if a Defendant wanted to get deferred adjudication on an Aggravated Robbery, he or she had to plead to the judge without an agreed recommendation from the State (WOAR).  In essence, that is the equivalent of throwing oneself to the Mercy of the Court.   In some instances, the judge would tell both the prosecutor and the defense attorney that if the Defendant pled to them without an agreed recommendation he or she (the Judge) would give them deferred adjudication.

For this to proceed, however, the State would have to agree to waive its right to a Jury Trial.

Like a Defendant, the State has the same right to a trial by jury.  If the State refuses to waive that right, then the Defendant's guilt or innocence must be determined by a jury.  If that jury finds the Defendant guilty, then the judge can no longer give them probation or deferred adjudication on an Aggravated Robbery (because a finding of guilty has been entered).  As noted above, only the jury can save the Defendant from prison with a probated sentence at that point.

Another way of resolving cases where the prosecution and the defense can't agree on an appropriate punishment for an accused is a Pre-Sentence Investigation (PSI) Hearing.  In a PSI Hearing, the Defendant pleads guilty to the offense and the Community Supervision (Probation) Department does a background check that ultimately results in a report to the judge.  That report can include information about the offense, the background of the Defendant, the criminal history of the Defendant, the feelings of the Victim, the substance abuse issues of the Defendant, and many other factors.  That report is given to the judge and then a sentencing hearing is conducted.

During the sentencing hearing, both the prosecution and the defense (usually) have the option of calling witnesses.  Usually, the prosecution calls victim impact witnesses and the defense calls character references for the Defendant.  At the close of the hearing, the judge has the full range of punishment available to him or her.  In the case of an Aggravated Robbery PSI hearing, the judge can place the Defendant on Deferred Adjudication, or sentence the Defendant to Life in Prison.

A PSI Hearing is generally an educated gamble for a Defendant and his attorney.  However, for a PSI to proceed, once again, the State has to waive its right to a jury trial.  If the State wants to remove the mere possibility of a deferred adjudication being granted to an Aggravated Robbery defendant, all they have to do is refuse to waive a jury trial.

And in recent months, that's exactly what the Harris County District Attorney's Office has been doing with increased frequency.  Refusing to waive a jury causes a jury panel of 65 people to be called to court, so that 12 of them can be selected, so that the Defendant can simply plead guilty to them and then ask them for probation.

Now, keep in mind, there is absolutely nothing dirty, suspect or fishy about an Aggravated Robbery case going to a PSI hearing.  Part of any judge's duty is to determine sentencing for accused in such a hearing if called upon.  Certainly, some judges have reputations for being tougher on punishment than others, but a PSI hearing offers absolutely no guarantees.

Determining an appropriate punishment is what a judge is elected to do.

If at the close of a PSI hearing, a judge determines Life in prison is appropriate, so be it.  If a judge determines that deferred adjudication is appropriate, then that is okay, too.

Over the past several months (and twice in the past two weeks), I've been told in certain courts, the District Attorney's Office would be refusing to waive a jury trial on an Aggravated Robbery case I was handling,  thus prevent me from going to the judge for punishment.  In essence, the message that refusal sends is quite clear:

The District Attorney's Office doesn't trust the elected Judge to do the "right thing" on the case, and therefore, it won't risk going to a PSI Hearing with him or her.

That's a pretty arrogant stance to take with an elected official.  It also belies the underlying feeling that a judge should merely be an extension of the prosecution.  Unless that judge is guaranteed to not even consider something so dastardly as a a deferred adjudication (if appropriate) on an Aggravated Robbery case, then that judge shall not be entrusted to determine punishment.  In other words, unless the judge is definitely going to do what the prosecution wants, that judge should not be trusted.

Apparently, judicial neutrality is not something that is valued by the D.A.'s Office.

In one of my instances, I was told that the State would not agree to a PSI on an Aggravated Robbery in the trial court, unless I agreed to let the case be removed to Impact Court where a different judge would be presiding.  I pointed out to the prosecutor that this was the equivalent of the D.A.'s Office giving the middle finger to the trial judge.

The irony of this is that the District Attorney's Office has the power to block a judge that they feel is too lenient, while a defense attorney who feels that a judge is too harsh is just shit out of luck.  Additionally, it completely disrespects the fact that the judge, like the District Attorney, is also an elected official who was chosen by Harris County voters.  If the voters trust a judge's judgment, why doesn't the District Attorney?  A judge is an independent entity and not an extension of the prosecution.  Sadly, this is an idea apparently lost on the Office at the moment.

On occasion, some judges find themselves at odds with the District Attorney's Office.  For instance, when former Judge Kevin Fine declared the Death Penalty to be unconstitutional, the District Attorney's Office more or less went to war against him.  Without commenting on what side I was rooting for in that battle, it was at least understandable as to why the battle was occurring.  Recently, it appears the D.A.'s Office is ready to fight with a judge over every instance where it disagrees with that judge.  Judges who disagree with the Office (or take them to task) risk being labeled as the next Kevin Fine by the prosecution.

Perhaps the District Attorney's Office should take a moment to remember that almost every single criminal judge in Harris County is a graduate of the District Attorney's Office (including two of the judges that the D.A.'s Office indicated they would block PSIs to).  If a former-prosecutor-turned-judge has a different outlook on criminal justice than the current prosecution, maybe it shouldn't be entirely disregarded.

Not to sound cliche here, but if a prosecutor's duty is to see that justice is done, perhaps that same prosecutor should come to terms with the idea that he or she is not the ultimate arbiter of justice.

Theoretically, that person should be the neutral judge.

Tuesday, May 17, 2016

Early Vote for Judge Mary Lou Keel

Early voting began yesterday (Monday, May 16) for the May 24th runoff election.

The most important one, by far, is the Republican race for the Court of Criminal Appeals, Place Two, which pits Harris County District Judge of the 232nd District Court, Mary Lou Keel, against Ray Wheless from Dallas.

I've known Judge Keel since I first started at the D.A.'s Office.  I have tried cases in front of her as both a prosecutor and as a defense attorney.  She defines the very idea of the tough but fair judge.  She calls balls and strikes on issues of the law and draws from her decades of legal experience.  She knows the rules of law and procedure off the top of her head and she is Board Certified in Criminal Law.

She would make a tremendous addition to the Court of Criminal Appeals.

Her opponent has run a disappointingly misleading campaign.  He has tried everything in his power to distract from the very obvious fact that Judge Keel is the more qualified candidate for the position.  He has tried to tap into Party Politics rather than examining ability for the job.  He and his surrogates have run an extremely misleading campaign that has tried to tie the actions of a neutral Grand Jury to Judge Keel.

The irony is that anyone with even the slightest understanding of the law would remember that Grand Juries are now selected from a neutral jury pool (as Judge Keel had been doing long before it was mandated) and have no personal ties to the Judge of the court.  Wheless and his cronies have tried to argue otherwise.  While politicians might fall for that type of argument, it is a shame to see that a man seeking the job of Justice of the Court of Criminal Appeals would be so intellectually dishonest.

Please tell your family and friends around the State to remember to vote for Judge Keel in this statewide race.  She had the largest amount of votes back in March, but we all know that the biggest enemy to a qualified candidate is low voter turnout in the runoff.

Make sure you vote too and spread the word.

Monday, May 16, 2016

Services for Robin Mitchell

There will be a celebration of life for Robin Mitchell on Saturday, May 21st at 3 p.m. at St. Mark's United Methodist Church, 600 Pecore, Houston, TX 77008.

As you know, we lost Robin last week to pancreatic cancer.

A fund has been set up to help support medical costs, as well as education costs for his children.  If you can, please donate at this website.

Wednesday, May 11, 2016

Farewell to a Friend

Last October, I went for my semi-annual check up with my oncologist.  I was expecting good things.

First of all, the type of leukemia that I dealt with two years earlier has an extremely low recurrence rate, so other than natural mild paranoia, I wasn't too concerned about getting some bad news.  Additionally, at the last appointment, my doctor told me that he would be moving to annual visits if I got the "all clear."

Not that I minded the blood draws twice a year.  After going through chemo in 2013, I'm pretty used to needles.  Moving to a once-a-year visit is more of a symbolic thing, really.  It kind of signals that the doctor thinks you are sufficiently out of the woods that he doesn't need to keep such a close eye on you.

As expected, my reports were good.  As promised, my doctor told me that I wouldn't have to come back for another year.

Before I left, he asked me if I'd had my flu shot yet.  I hadn't.  He recommended I get that taken care of while I was there.  No problem.  Like I said, I had no problem with needles.

At my oncologist's office, there are three sections for patients:  the waiting room, the lab and the treatment center.  The treatment center is where I'd gone for chemo.  I hadn't been back there since I'd rung the bell on October 28, 2013.  That's where they sent me for my flu shot.

I was kind of glad to go back there.  I wanted to say hello to some of the nurses that had worked with me.  I particularly wanted to say hello to Kathy, who had been my "main nurse" during the chemo days.

She was busy when I went back there.  I could see her tending to another patient who was getting chemo.  It wasn't lost on me that while I was just getting a flu shot, every other patient in the treatment center was receiving chemotherapy.  As much as I wanted to say hello, it was better to get my shot and go on without bothering anybody.

I had to wait a while for the shot.  I didn't mind.  Any time you walk out of an oncologist's office without bad news is a good day.  After a wait, I got my flu shot and I got ready to leave.  I could see Kathy was talking to a patient and I tried to catch her eye just to wave to her.

When I did move around to wave, I saw the patient she was treating and my heart sank.

The patient in the chair was a friend.

A friend and fellow defense attorney who I had known since my prosecutor days.  A guy with a perpetual smile who was always ready to laugh with you at even the slightest joke.  Not someone that I was particularly close with, but someone that I would always stop and talk to when I saw him.  I had last seen him a month earlier, when I was driving with my 10-year-old and he was out jogging around 610 and Shepherd.  We had pulled over and talked to him, and I told him that my son had asked if he was homeless -- which had cracked him up.

We looked at each other and almost simultaneously said, "What are YOU doing here?"

We talked for a second and he smiled the whole time.  Then, his smile faded a little and he said he had pancreatic cancer and it had metastasized. When someone tells you that, there isn't much else to say other than "oh shit."

So, I said, "Oh shit," and he chuckled.

"Well, you're in good hands," I said.  "Kathy is the best."

He nodded and said he was staying upbeat.  He told me about the different things the doctor said were treatment possibilities.  I gave him my card and cell phone number and told him if he needed ANYTHING to call me.  He said he appreciated it, and he asked me not to say anything about it at the courthouse.

And I didn't.

I saw him at the courthouse a few weeks later.  He was still upbeat.  He said that he and his wife had driven to Austin to tell his daughter the news.  He said that in a way, he was glad for the excuse to go see his daughter and spend some time with her.  He asked me for Johnny Bonds' phone number, because he knew Johnny and knew about Johnny's own battles with cancer.

He laughed as he told me that the doctors wanted to continue with his course of treatment for a year to see if it was working.  If not, they would change it.

"So I told them, 'So you're saying I've at least got a year!'" he laughed.

I saw him a month or two ago at the courthouse.  He had lost some weight but still seemed relatively upbeat.  He said the cancer treatment wasn't going that great but he was still plugging along.

Today,  I was sitting down to lunch with some friends, one of them asked me, "Did you know Robin Mitchell?"

Again, my heart sank.  I knew what was coming next.

Yes, I knew Robin Mitchell, and I was lucky to.  If you're reading this, I hope you knew him too.

He was a tall, gangly guy with prematurely white hair, who always had a smile on his face.  Despite the depressing place that the CJC can so often be, he always seemed happy.  Even when he was going through such a tremendous struggle.

I thought about Robin a lot ever since I saw him at the oncologist's office.  I think the part that made it so sad to me was the fact that Robin always was so happy when I saw him.  There is just something that makes you feel better when you hang around somebody that is always on the cusp of that next laugh.  He brightened up a normally dark place.

My heart goes out to his family.  I will truly miss seeing his smile around the courthouse.

Wednesday, May 4, 2016

Portrait Unveiling for Judge Mary Bacon

Tomorrow, May 5th, 2015 at 12:00 p.m., there will be a portrait unveiling for retired 338th District Court Judge Mary Bacon on the 20th Floor of the Criminal Justice System.

Judge Bacon has been retired for some time now, but I had the pleasure of trying a case in front of her when she was a visiting judge.  Not only is a great judge, she is one of my favorite people.  I'm very glad to hear about the portrait unveiling.

Please come by if you are in the neighborhood and have the time.

Thursday, April 21, 2016

HBA Presents Miranda v. Arizona

The Houston Bar Association is presenting a re-enactment of the United States Supreme Court arguments in Mirnada v. Arizona.  The re-enactment will take place on Friday, April 29th at 2:00 p.m. at the Harris County 1910 Courthouse.

There will be some very familiar faces in the cast, and the event is free.  It also counts as an hour of free CLE, so it is definitely a win-win situation.

For more information, click here.