Thursday, March 5, 2015

Jamie Brooks

I was very saddened to learn this morning about the passing of my friend, Jamie Brooks.

Jamie was a fixture of the Harris County Defense Bar and a friend that I had known since I first started work at the D.A.'s Office in 1999.  He was one of the nicest people and truest friends that one could have at the Criminal Justice Center.

Jamie was generally a very soft-spoken attorney during docket, but he was also a strong advocate who was not afraid to go to trial and fight for his clients.  More importantly, Jamie was one of the first people to volunteer to lend a hand when a colleague needed help.  Any time a lawyer fell ill or passed away, you could always count on Jamie to be there to do whatever he could to assist.

Jamie was a good lawyer, a good friend, and a good person.  I am terribly sad to lose him.

My thoughts and prayers go out to his family.

Saturday, February 21, 2015

Letting Go

"I believe your client, but you are still going to need to present something to the Grand Jury on it."
"I'll give you a probation on a lesser charge, but your guy is going to need to plead on all three cases.  I've been told that my court has too many dismissals."
"I don't know why the Grand Jury indicted your client, but I can't dismiss it unless the co-defendant pleads to something."
"I would never dismiss that case.  It's a First Degree!"
What do the above four phrases have in common?

They have all been said to me by a prosecutor as justification for not dismissing a case in the past year.

Now, before I go too much further down the road of angering every prosecutor who reads this blog, let me be clear:  Prosecutors and Defense Attorney disagree every freaking day over whether or not a case should be dismissed.  As Defense Attorneys, we are obligated to seek out the best resolution for our clients and we wouldn't be doing our jobs if we did not (at least) see if we can talk the prosecutor into a dismissal.

As you can imagine, the strength of a Defense Attorney's argument for dismissal can vary drastically from case to case.  Many of these "dismissal discussions" are very brief and the vast majority of them obviously don't end in dismissal.

The issue that I have here is absolutely NOT with the prosecutor who doesn't agree with my interpretation of the evidence.  My argument is NOT with the prosecutor who finds their witness' statements to be more credible than I do or the evidence more compelling than I see it.  I get that.  I don't always agree with it, but I get that.

My issue is with the prosecutor who will actually state to me that the reason they won't let go of a case is because of something that has absolutely nothing to do with the facts of that case.

Statistics should never be a consideration in whether or not a prosecutor dismisses a case.   I firmly believe that nothing adversely affects the Criminal Justice System more than statistics -- i.e. the police get recognized for how many felony arrests they make, so why not go hunt down jaywalkers who might be carrying crack pipes with residue?  The same applies to prosecutors when they start being judged on how many dismissals they may or may not have signed off on.

Statistics are for politicians.  Not prosecutors.

The standard of whether or not a prosecutor should dismiss a case is simple:  if you don't believe it can be proven beyond a reasonable doubt, or (God forbid) you believe the person is (gasp!) factually innocent, you shouldn't be freaking prosecuting it.  Period.  Take all the time you need to thoroughly investigate the facts of the case, but if you can't prove it beyond a Reasonable Doubt, you need to be signing a dismissal.

When I was chief of the 339th District Court, I was observing Brent Mayr try an Aggravated Robbery case (which is a First Degree charge).  For those of you who don't know Brent, he's a fantastic trial lawyer and he's also very competitive.  In the middle of his trial, a witness testified to something that caused Brent to have hesitation over whether or not the Defendant was guilty.  I was his supervisor, so he came to me because he wanted to dismiss it in the middle of trial.

"I think he probably did it," Brent told me, "but I don't believe that beyond a Reasonable Doubt anymore."

So, we dismissed it immediately.  Nobody ever questioned either my judgment or Brent's.  A dismissal in the middle of a trial isn't exactly a positive statistic for a prosecutor's record, but that didn't dissuade him from doing the right thing.  I was proud of Brent.

Dismissals on First Degree cases do still happen, obviously.  I am still very appreciative of when Lance Long and Greg Houlton dismissed this murder case after carefully reviewing the evidence.

My point here is that a dismissal should ALWAYS happen based on the evidence and not ulterior concerns.  When I was a prosecutor, nothing offended me more than hearing a defense attorney say something like "all prosecutors care about is getting their conviction."  I didn't believe that then and I don't believe that now.

But statements like the four that begin this post should give you some insight into why defense attorneys sometimes feel that way.

If you believe my client's version of events when she explains that she isn't guilty, then dismiss the case.  Don't make her and her family have to experience the overwhelming stress of being charged with a felony if you don't think she did it.  We shouldn't have to wait for the Grand Jury to No Bill the case because you don't want to be the one who signs your name to a dismissal.

If you think that my client is worthy of being on probation on a lesser charge, then why make him technically be on three probations for statistics' sake?  It literally changes nothing about what his punishment will be like.

If you think that a Grand Jury shouldn't have indicted a case and that your links to my client aren't strong enough for trial, don't make her wait until the co-defendant pleads on something before you are willing to dismiss it.  The facts are either there or they are not.

And, finally, the inspiration for this entire post --

Just because the case is a serious, First Degree case, that doesn't mean that it can't be dismissed if the facts aren't there.  A First Degree felony case can sometimes be as weak as a questionable speeding ticket.  The same standard of proof applies regardless of degree.

If a prosecutor wants to tell me that, in their opinion, the case is strong enough to convince a jury Beyond a Reasonable Doubt, then that's fine.  I respect that.  But when even your own lead investigator states on the record that they aren't even sure a crime was committed at all, that might be a sign that you are wrong in your opinion.  That's when words like "I wouldn't dismiss that case.  It's a First Degree!" start becoming really really offensive.

When a juror flags me down in the lobby of the CJC (after an acquittal) and asks me to extend her apology to my client and his family for having to go through the trial, you might want to start evaluating your judgment on that policy.

Many moons ago, when I was working in another county, I heard a prosecutor on a DWI case say "I know we aren't going to win, but this kid needs a good trial."  I found the statement to be strange then.  Now I find it to be mortifying.

Unlike the private sector where one has to worry about economic trends and supply and demand, the Criminal Justice System will never run out of cases to try and people to prosecute.  It is a continuous growth industry.  There are plenty of cases where a prosecutor has more than ample evidence to prosecute and convict without hesitation.

But when the evidence isn't there, the case needs to be let go.

Wednesday, February 11, 2015

Forced Empathy

As I've noted here and there on blog posts since becoming a Defense Attorney six years ago, one of the things that I think I've gained on this side of the bench is a better grasp of empathy towards those accused of crimes.  When I was a prosecutor, I never got Mark Bennett's frequent assertion on his blog that every prosecutor should have to spend some time in jail to gain a full appreciation for what criminal defendants go through.  I still think Mark's position is a little extreme, but I understand his point.

Too often those who enforce the law and the punishment associated with breaking the law don't quite get the human effect that comes along with punishment.

And then something like this happens that kind of makes those who enforce the law have to feel the consequences of breaking the law . . .


(H/T & Photo Credit to Mark Thering)

Saturday, January 31, 2015

An Unworkable Drug Policy

Yesterday, the Harris County District Attorney's Office made a radical change to their Operations Manual addressing how prosecutors will deal with Controlled Substances cases.

The change, which takes effect immediately, prohibits prosecutors from making a recommendation (or agreeing to go to a judge without a recommendation) on any controlled substance case, unless there is a lab report confirming that controlled substance.  The only possible exception to this rule would be if a prosecutor were to recommend that "a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision."

The idea behind this change in policy was doubtlessly a noble one.  Too many defendants were entering into plea bargain agreements on drug cases only to later find out that the drugs in question were not controlled substances after all.  In situations where a lab report revealed a substance not to be a controlled substance, a Writ would have to be filed to correct the error of an innocent person who was currently serving prison time for a non-crime.

So, one might wonder why exactly a person would ever plead guilty to a drug case, if the drugs were not a controlled substance.  The answer is simple -- the people who plead to drug cases usually believe that they actually were possessing a controlled substance.  It should not be too shocking to discover, however, that there are some less-than-honest drug dealers out there who sometimes rip off their clientele with fake dope AKA "turkey dope." A client who is brought back from prison early to have his conviction and sentence set aside usually finds himself feeling mixed emotions.  On the one hand, he's very excited to be going home earlier than expected.  On the other hand, he's pretty ticked that he got ripped off on the streets.

The District Attorney's Office wants to stop wrongful convictions based on negative lab findings from happening in the future, which is a laudable goal.  Unfortunately, the Office's solution is filled with problems.

By declaring that the Office "shall not make a recommendation nor agree to entry of a plea of guilty or no contest" in a controlled substance case, they put all drug cases in limbo until the lab results are available.  Depending on the lab, that can be anywhere from three weeks to three months as an accused person sits in jail with literally nothing happening on his case.   A Defendant who wants to work out his case won't be allowed to.

Here's where it gets a little more interesting.  By stating that that their prosecutors may not "agree to entry of a plea of guilty or no contest," the Office is stating that they will block Defendants from entering a plea to the Judge of the Court without an agreed recommendation from the State.  Going to the Court without an agreed recommendation from the State is a very common practice in Harris County which allows Defendants to sidestep the prevailing policies of the D.A.'s Office.  Pleading without an agreed recommendation to the Judge/Court on low level drug offenses can often end up with a 12.44(a) sentence.

Now, for those of you who don't practice criminal law, 12.44(a) is a provision in the Penal Code that allows a person who is convicted of a State Jail Felony to be punished with a Misdemeanor sentence.  The person is still convicted of the felony offense, but rather than being sentenced to 6 months to 2 years in a State Jail Facility, the Defendant is sentenced to serve his or her sentence in the county jail.  What makes this an attractive option to Defendants is that "county time" a) gives them three days of credit for every day that they serve; and b) maxes out at a year (which is actually 4 months because of two-for-one credit).  Generally, the District Attorney's Office frowns upon agreeing to a 12.44(a) sentence.

NOTE:  Not all Courts do these types of "without an agreed recommendation" pleas, but many do.

Controlled Substance cases that are classified as State Jail Felonies are (generally) those where the weight of the controlled substance is less than 1 gram.  This covers the multitude of "crack pipe cases" that are often prosecuted despite only a residue of crack cocaine being detected on the pipe.  It is a routine practice on these "crack pipe cases" for the Defendant to plead guilty to the Judge/Court without an agreed recommendation so that the Judge can sentence under 12.44(a).

This practice of going to the Court without an agreed recommendation from the State is what will be coming to a screeching halt under the new change in the operations manual.  The State has to agree to waive its right to a jury trial before such a plea can proceed, and the new policy forbids prosecutors from doing so.  In essence, a Defendant who is charged with a crack pipe case that lands in a Court that is willing to sentence under 12.44(a) is going to be out of luck.

Now, let's look at some of the implications of that for a moment.  Given the fact that most low level drug offenders don't exactly have a lot of cash on hand, they are probably not going to be able to bond out.  A compassionate judge may be willing to give a Defendant 30 days in the county jail under 12.44(a), but the D.A.'s Office is now going to block that from happening.

Why are they going to block that from happening?  Because they aren't sure that the controlled substance alleged is actually a controlled substance until they get an official lab report in.  So, basically, the D.A.'s Office seems to be confident enough to deprive the Accused of his freedom for as long as a lab needs, but not confident enough to sign its name to a plea bargain.  In this scheme of things, sitting on your butt in jail is worth the price of them avoiding having to do a Writ, should a substance turn out to be turkey dope.


It is also kind of a slap in the face of the Judiciary.  If the State of Texas is saying they won't waive a jury (and thus allow a plea without an agreed recommendation), they are, in essence, saying that they don't trust the Judge of the Court to do the right thing.  That's an interesting and awkward statement to make.  Seeing as how both District Attorney Devon Anderson and 1st Assistant Belinda Hill are both former judges, I'm somewhat surprised with this message being sent.  I can't imagine either of them being happy with this policy change if they were still on the Bench.

The new policy does allow for prosecutors to agree to a Deferred Adjudication, as long as there is no jail time assessed as a condition.  Well, that's nice and all, but the prosecutors don't have control over what conditions a Judge assesses on community supervision.  They can say it all they want in their policy manual, but if a Judge has a plea entered for a Deferred, that Defendant is now at the Court's mercy.  The State can't regulate that away.

So, what is the end result for this?  My prediction is docket numbers shooting through the roof.  If the State suddenly can't work out low-level drug cases, then the dockets are going to get clogged.  I highly doubt that the D.A.'s Office will be agreeing to personal recognizance bonds while labs get sorted out.  I also highly doubt that they will tell cops to get a warrant for these defendants only after getting their lab results in.  They don't want to inconvenience the cops, after all.

In a discussion with some friends yesterday, someone a lot smarter than me came up with a pretty simple solution:  waive your right to indictment and immediately ask for a jury trial on the first setting.  Not all judges will give you a two week trial setting, but they should.  After all, if the State of Texas by and through her District Attorney is saying that it won't waive a jury trial on these types of cases, shouldn't the Court accommodate them by providing a jury trial as soon as humanly possible?

Just a thought.

I know that the D.A.'s Office's heart was probably in the right place when they came up with this policy, but I just don't see it working out for very long.

Tuesday, January 20, 2015

When the Ax Falls

Harris County Criminal Justice Center regulars were shocked over the past several days as the District Attorney's Office conducted a mass firing of prosecutors and other personnel.  The Office firing so many employees at one time hasn't been seen since . . . well, since the incoming Lykos Administration decided to fire me and several other prosecutors, investigators and secretaries at the end of 2008.

As I can attest, getting fired isn't much fun.  In addition to being embarrassing, it also fills your life with a level of uncertainty that you weren't expecting to address at this stage of the game.  (I'm not going to post the name of anyone who got fired here, nor will I publish the names in the comments.)

Some of those who lost their jobs were already at the Office when I started back in 1999.  Others started while I was still there and some started after I was gone.  I think I knew almost all of them.

And for the life of me, I'm not real sure why they were fired.  Especially not all at once.  I agree with Mark Bennett that there doesn't seem to be any rhyme or reason to it.

I realize that there may be some things I'm not privy to.  I've been gone for over six years now, after all.  The prosecutors I knew that lost their jobs didn't seem to deserve it from what I saw during my time as a prosecutor or as a defense attorney.  I believe one of them was arguably the best trial lawyer they had -- and an even better Chief.

It makes me sad.

So, here are a few words of advice from someone who has been there:

1.  The idea of life after HCDA is scary, but it isn't as hard as you think.

2.  Remember that everything happens for a reason.

3.  If you want to be a defense attorney, ask for help from those of us in the Defense Bar.  The Defense Bar in Harris County is not only amazing inside the courtroom -- they are even more amazing outside.  You will be overwhelmed at the kindness and generosity of time they will provide -- even that Mark Bennett guy that everybody gets so pissed off at.

4.  Get an accountant if you are going to hang out a shingle.

5.  Call me if you need anything.

6.  This, too, shall pass.

Hang in there, guys.  It isn't nearly as bad as you think.

Saturday, January 10, 2015

If Your Doctor was Your Lawyer

Back in 2013, when I was going through a round of chemotherapy for leukemia, my wife remarked, "You know, one thing I will give you credit for is that you do listen to your doctors."

She meant that when the doctors prescribed a regimen for me, I followed their instructions to the most minute detail.  

"Why wouldn't I?"  I asked.  "They are professionals.  I went to them with a problem and they told me the best way to handle it.  Why would I disregard that advice?"

I went on to tell her that sometimes, by analogy, lawyers have a similar job to doctors.  They go to school and train so that they can help others.  (NOTE: Yes, I know that is a very sterilized and idyllic way of viewing the job of the lawyer, but go with it for the sake of the blog post.)  I told her that despite my legal advice, some clients often think they know better.  If they heard some news or advice from me that they didn't want to hear, they immediately cited something they had seen on the news.  My years of law school coupled with practicing exclusively criminal law for over 15 years was nothing compared to something they saw on the news, heard from a cellmate, read in the law "liberry" or, my personal favorite, watched on Law & Order.  

Seriously, you have no idea how many times lawyers get confronted by clients who saw something different on Law & Order.  The bottom line is that it is a very frustrating experience when you give solid legal advice to a client and that client either argues with you or simply ignores your advice.  I don't enjoy it when my clients do it to me and I don't do it to professionals I ask to help me -- especially not my doctors. 

When I first got sick last year, my doctor, Sam Siegler, suggested that I stay away from doing my own Internet research.  He was sending me to a great oncologist and knew the oncologist would give me the real information that I needed to know.  I think Sam's warning was more directed towards my wife -- who firmly believes that no matter the problem, there is information on the World Wide Web that can solve it.

Earlier this week, I had to go to a dermatologist to take care of a small basal cell carcinoma spot near my left temple.  His advice was that he needed to perform a quick surgical procedure to cut the spot out.  It would leave a nasty scar and there was a small chance that it could cut the nerve that raises my left eyebrow.  His clear advice was to do the surgery, and, of course, I agreed.

Later on, I started thinking about what it would have been like if the conversation between me and my doctor had been more like conversations with me and some of my (more meth-addicted-type) clients.  It would go something like this:

DOCTOR:  Well, Mr. Newman, it looks like you have a small bit of basal cell carcinoma.

ME:  Carci-what?  What does that mean?

DOCTOR:  It's a type of low-grade skin cancer that . . .

ME:  Cancer?!  I'm not trying to have cancer!

DOCTOR:  Um, okay, well the fact of the matter is that you do have it and we have to do something about it.

ME:  I don't see any cancer.

DOCTOR:  It's that little spot on your left cheek.

ME:  Man, that's a zit.  I've been having zits all my life.  It's not cancer.

DOCTOR:  Sir, I've been a dermatologist for fifteen years and I can assure you that it is a basal cell carci -- 

ME:  Why are you trying to put this on me?

DOCTOR:  Nobody is trying to "put" anything on you.

ME:  I've been watching ER for twenty years and Grey's Anatomy for ten years.  This ain't cancer.

DOCTOR:  Yes, it is and we need to do a small surgery.

ME:  Surgery?!  What the hell are you talking about surgery? You don't know anything about cancer.  You do that chemodiation stuff for cancer.

DOCTOR:  I think you mean either chemotherapy or radiation, Mr. Newman.

ME:  Whatever.  My cousin's girlfriend's brother got cancer and he got that chemodiation and I'm not going to be doing that.

DOCTOR:  No one is asking you to do that, sir.  It is just a small surgical procedure that will leave a small scar.

ME:  A scar?!  I don't need anymore scars.  I've already been married three times, man!  Don't tell me about scars.

DOCTOR:  Well, the bottom line is that you have a basal cell carcinoma and it has to be dealt with one way or the other.  This is my best medical advice to you, sir.

ME:  This is bullsh*t, man.  I'm going to go get a Free World Doctor.

DOCTOR:  A what?

ME:  You ain't working for me, man.

Thursday, January 1, 2015

Hey, I Won Something!

Shortly after I wrote my post this morning about my goal of writing more in 2015, I got an e-mail from my Uncle John congratulating me on winning Scott Greenfield's 2014 Jdog Memorial Best Blog Post Award.

I didn't even know that I had been nominated, much less that I had won anything.

To say that I'm happy about the award is an understatement.  Scott is a friend that I met through blogging.  He's an amazing writer with a mind that works overtime.  To win a blogging award coming from somebody who writes like he does means quite a bit to me.

I was also very flattered to learn that I had been nominated by Harris County Public Defender Alex Bunin, which is also an honor.  Alex is also a friend that I have a tremendous amount of respect for.

You guys made my day and I can't thank you enough.  It was a great way to start out the New Year.

P.S.  I also have to thank my wife who edits my posts and catches the vast majority of my grammatical train wrecks.

Happy 2015!

At the end of 2013, I found myself looking very forward to the idea of 2014 being a much less eventful year.  Having fought a small battle with a very curable strain of leukemia and then rolling straight into the birth of my youngest son, I was a little exhausted this time last year.

Luckily, 2014 was a much less eventful year.  My family and I moved into a new house, but compared to the events of the preceding year, that was a walk in the park.

I did stay pretty busy all year -- both at work and on the home front.  That aforementioned youngest son didn't start sleeping through the night until after he celebrated his first birthday in October.  Sleep around the house was a precious commodity.

I'm writing all of that as a lame way of explaining why I haven't been writing much at all lately.  For the few remaining readers of this blog, I'm going to try to step it up a notch.  I like writing and I miss it.

My goal for 2015 is to write at least a post a day a week.  Not necessarily long and thoughtful posts like my friend Scott "Don't Call Me Prolific" Greenfield is able to write everyday, but hopefully something.  There has obviously been plenty to talk about in the Criminal Justice World lately, I just haven't managed to find the time to do so.

Here's to a good 2015 with plenty to talk about.

Happy New Year, everyone!

Sunday, November 16, 2014

Signing Up for Big Brother

Last Sunday evening, I took a plane trip from Houston's Intercontinental Airport to a moderately sized airport in Florida as part of my work with Cold Justice.  There were five of us traveling together and we had a lot of equipment, so one of the production assistants was meeting us at the airport with a van to take us to the hotel.

As we were waiting in the Passenger Pick-Up area, a heavy set African-American man drove up to pick up a couple who were apparently on the Houston flight with us.  I noticed him because he appeared to be uncomfortable parallel parking at the curb so he parked in a moving lane of traffic.  Leaving his car parked, he got out and helped the couple load into the car.  It was late at night and he wasn't inconveniencing anyone.  I just didn't have much else to observe while waiting for my ride.  Otherwise, I probably wouldn't have even noticed him.

When I got back to my hotel room after a long day of travel, I checked my Facebook account on my cell phone.  Although my phone had been on while I was at the airport, I didn't check Facebook while I was there.

As I browsed through all the updates that had occurred with my friends during the day, I had the usual pop-up of "Friend Suggestions" in my feed.

The first person suggested was the African-American man from the airport.  If I hadn't watched him for about five minutes straight, I wouldn't have recognized him.  His profile showed that we had one mutual friend -- a lady that I used to work with at the Harris County District Attorney's Office.

Now, keep in mind, I hadn't "checked in" at the airport.  I just happened to carry my phone through it.

I was mildly amazed at the friend suggestion, so I posted a brief recount of what had happened on Facebook (of course).  I got several responses, including my favorite: "Get some sleep, Murray."

Then one of my friends posted the following:
It has happened to me.  I was in a hotel in Nashville and overheard a conversation in the elevator.  The woman had a distinctive name.  When I got back to my room I noticed her name in my People You May Know section and sure enough it was the woman I had just seen in the elevator.  She was friends somehow with someone I am friends with and I am sure FB references your current IP address to look for people.  So, Voila!  Still very weird.
Now, in addition to the fact that my friend uses the term "voila!", I found this to be a little disturbing.  I'm not claiming that I read the fine print when signing up for Facebook's privacy settings agreement.
As any of my Facebook friends can tell you, I like sharing pictures of my kids and places where I go.  Yes, I know that it is much more prudent to share nothing personal on the internet, but what can I say?  I'm a Facebook junkie.  I'm used to ads popping up on my page that relate to a location where I checked in.  I'm okay that they seem to have picked up on my love of Star Wars, the Rolling Stones and the fact that I have small children at home.  I post about that all the time on my page.

I just never knew that Facebook appears to be watching me when I'm not logged in and that is a little spooky.

I'm not saying that Facebook is doing anything that isn't covered in that fine print, either.  I'm sure I signed up for them to monitor my location -- even when I'm not logged in.  The incident with the guy at the airport is pretty benign, but it doesn't take much imagination to think of a scenario that could be worse.  Facebook is inviting people into your life that you don't even know.

My point here isn't about the technicalities of Facebook and privacy.  I know that Scott Greenfield and Mark Bennett and others who follow technology and how it applies to the law are much more adept at expressing those details.

The reason I wrote this particular post is that our profession deals with privacy rights every day.  We fight searches and seizures under the mantle of Privacy as the main theme of many of our cases.  We complain of drones that spy and cell tower records and toll booths and facial recognition software and street corner cameras and legalized blood draws.

But the reality is that so much of that privacy we willingly give away to Facebook and other similar social media sites.

Food for thought.

Friday, October 24, 2014

Kim Ogg, Attorney-Client Privilege and the McAfee Case

When a potential client first calls a lawyer on the phone or comes into his office, there is no predicting where that case will lead.  Whether it be civil, criminal, or family law, the variables are so vast that there are really only two things a lawyer can guarantee a client:  his best effort, and complete confidentiality.

The principle of Attorney-Client privilege is something that every lawyer and most non-lawyers understand.  It is a sacred principle in the legal profession and one that is held above all others.  A lawyer could arguably be forgiven more easily for doing a terrible job on a case than he could ever be for sharing privileged information.  Client communications are privileged.  Period.

How serious is the duty of Attorney-Client confidentiality?  If I were to represent a client and he fired me, I would be forbidden from turning over my file on the client to his new lawyer until I had confirmed that client's permission to do so.  It is so serious that the confidentiality begins as soon as the potential client first tells a prospective lawyer the facts of his case --  even if that client doesn't hire that lawyer, privilege exists because of communication in anticipation of hiring a lawyer.

It is so serious that the duty of Attorney-Client confidentiality survives even if the client dies.

Attorney-Client confidentiality is one of the most basic tenets of being a lawyer.

It just is.

On Saturday, May 8, 2010, a woman named Janet McAfee was shot and killed by her husband, Ken McAfee.  After killing his wife, Ken McAfee engaged in a 3 hour SWAT standoff before shooting himself in the jaw.  He would survive the injury and be charged with Janet's murder.

In the days that followed, it would come to be revealed that Janet McAfee had been in the process of divorcing Ken.  According to a Houston Chronicle article, she had filed for divorce in March 2010.  In the same article, it is mentioned that at some point, Janet had attempted to become legal guardian of her husband, Ken.  That information was shared with the Chronicle by Janet's former lawyer, Jack Ogg.

Now, right off the bat, there is something suspect about a murder victim's former attorney giving information to the press about the nature of his representation.  In my opinion, that seems like a breach of Attorney-Client confidentiality right there.  At least Ogg declines to state Janet's reasons for seeking the guardianship.

But it seems as if Ogg clearly violates Attorney-Client privilege when he begins telling unflattering information about his now-deceased former client:
"I've heard that there were threats on both sides," Ogg said.  "But that's not unusual when people are going through marital problems."
Okay, so you have a former client who was initiating legal action against her husband and said husband has now murdered your former client.  What better time to start sharing with the press that she had been making threats toward her killer?  This type of sharing is certainly not acting in the best interest of your client.  As a matter of fact, you are actually beginning to act in the interest of the man who killed her.

So what does that have to do with Kim Ogg?  Well, it gets worse.  A lot worse.

Ken McAfee's murder case landed in the 339th District Court and although he was initially appointed counsel, attorney Gerald Fry comes in on the case as retained counsel on May 13th, 2010.  On July 6, 2010, Fry files the below "Ex Parte Motion to Acquire Records," asking Judge Maria Jackson to order the Ogg Law Firm to turn over their file on their deceased former client, Janet McAfee.

Now, normally, this would be the kind of thing that any self-respecting attorney would go to war over.  Like a journalist who would go to jail in contempt of court before revealing their sources, an attorney would proudly go to jail for contempt rather than ever allow their privileged Attorney-Client communication to be turned over.

Seriously, folks.  This is a huge deal and I personally know at least two criminal defense attorneys who were willing to go to jail rather than turn over their files to another lawyer without the client's permission.

In this case, you have Gerald Fry, Ken McAfee's attorney, asking for the confidential information shared between the Ogg Law Firm (by and through its representative, Kim Ogg) and their former client Janet McAfee, the murder victim of Fry's client. 

Don't get me wrong -- there is no harm in Gerald Fry trying to get their file.  He just should have expected Kim Ogg -- Victim's Right Advocate and former CrimeStoppers head -- to tell him to go to Hell.  Even if Judge Jackson were to grant Fry's request and order the file, any self-respecting lawyer who has ever represented a client (especially one that has been murdered) would go to jail before complying with that order.  

Quite frankly, there probably would have been no chance on Earth that Judge Jackson would have ever granted Fry's Motion, if it hadn't been for the "Certificate of Conference" he included at the end of his motion.
Um, holy betrayal, Batman.

The reason that Gerald Fry was filing the Motion to Acquire records was because he had already spoken to Kim Ogg eight days earlier and she had told him that she had no objection to turning over her file on Janet McAfee.

Kim Ogg agreed to turn over a murder victim's confidential file to the attorney representing the victim's killer.  She just needed a judge to sign off on an order to cover herself.

And the order was signed and the Ogg Law Firm turned over their Attorney-Client Privileged file to the Defendant's attorney.  Whether you are the most hard core of prosecutors or the most hard core defense attorney, this breach of confidentiality is stunning and mortifying.  The information in the file was damaging to the reputation of Janet McAfee, and the defense was absolutely not entitled to it.  Neither was the prosecution.

Nobody was entitled to see the information in the Ogg Law Firm's file on Janet McAfee.  Why? It was privileged.

To her credit, Judge Jackson quickly realized that the file on Janet McAfee was not Ogg's to give.  She ordered the Defense to return the file almost immediately.  Gerald Fry complied with that order.

But why did Kim Ogg ever think it would be okay to turn over the file in the first place?  Kim Ogg is many things, but she isn't stupid.

I've learned from credible sources that despite the fact that Jack Ogg was not currently representing Janet McAfee at the time of her death, he had hopes of representing her estate in a wrongful death lawsuit against Ken McAfee.  That would explain why he took to talking to the media so quickly after the murder.  But Janet McAfee's family didn't want the Ogg Law Firm to represent the estate.  Janet had gone to high school with a lawyer and her family wanted that classmate to be the lawyer on the wrongful death case.

Probably because that classmate was Kelly Siegler.

When the Ogg Law Firm learned that they wouldn't be handling any further legal matters on behalf of the late Janet McAfee, I guess they felt safe in giving their files and communications to her killer's attorney.  It seems like a very spiteful move from where I'm sitting.

Earlier this year, Ken McAfee was convicted of murder and sentenced to life in prison.

No thanks to Kim Ogg -- who would really appreciate your vote for District Attorney.

Thursday, October 23, 2014

The 2014 General Election

From the "Better Late than Never Department" . . .

Normally I would have my recommendations in the Criminal Justice Races out before early voting starts, but I'm running a little late this election cycle.  Early voting began on Monday, and if you haven't done so already, you need to get out there and do it.  As I remind you every election cycle, it is so much easier to vote at any of the available early voting locations in the two weeks leading up to the election than to be limited to your one and only polling place on election day.

My early prediction on this election cycle is that there will be a Republican sweep.  I base that prediction entirely on what I've seen with the past several non-Presidential Election years.  I could be wrong.

So, here are the races that affect the Harris County Criminal Justice Center.

Harris County District Attorney - Devon Anderson (R) vs. Kim Ogg (D)
When Ogg first announced that she would be running against District Attorney Devon Anderson, I thought it would be a good campaign between two qualified candidates.  Although I still don't doubt that Kim Ogg has the intellectual capacity and legal knowledge to be District Attorney, her actions on the campaign trail have called into question her character to some degree.  Ogg has made a habit of grandstanding on issues and attempting to mislead the general public on very standard procedural issues regarding special prosecutions (as I wrote about here).  The move of making misleading statements for public approval is something straight out of the Pat Lykos playbook, which is no surprise since Ogg was a contract employee under the Lykos Administration.

Additionally, Ogg's pandering to voters with her recent statement about forbidding probation on any and all Burglary of a Habitation charges illustrates a dangerous outlook for a D.A.'s Office led by Ogg.  Any experienced prosecutor or defense attorney can tell you that there are all types of factors that go into assessing the appropriate punishment for any criminal case -- burglary is no exception.  Under Ogg's theory, if a 17-year-old kid with no criminal history wanders into an open garage and steals a rake, she wants him to go to the prison.  That's just stupid and the aspiring D.A. should know better.

If the public isn't concerned about how Ogg treats defendants, perhaps they might be interested in her dealings with victims of crime.

Yesterday, the Houston Police Officers' Union issued a statement expressing their concern about Ogg's fitness to serve as District Attorney, citing an incident where Ogg had released identifying information about the victim of a crime when Ogg was serving as the head of CrimeStoppers.

On a more positive note, District Attorney Devon Anderson has been continuing to do an effective job since taking over the Office.  She continues to work on new programs and courts such as deferring prosecution on recreational marijuana use and a court dealing with prostitution cases.  She's also leading her Office from the front, having recently successfully prosecuted the Capital Murder trial of Harlem Lewis.

Recommendation:  Devon Anderson (R)

180th District Court -- Catherine Evans (R) vs. Randy Roll (D)

Since being appointed to the 180th bench to replace Judge Marc Brown (who was appointed to the Court of Appeals), Judge Evans has gotten rave reviews as a fair and smart judge.  She has proven to be fair to both the prosecution and the defense and runs an efficient and pleasant courtroom.

Randy Roll is a former one-term judge who lost his bench to Judge Kristin Guiney in the 2012 election.  I like Roll as a person, but Evans is the better choice in this election.

Recommendation:  Catherine Evans (R)

184th District Court -- Jan Krocker (R) vs. Mark Thering (D)

Although I anticipate a Republican sweep, I hope that this particular race proves me wrong.

Longtime judge Jan Krocker has long been regarded as a controversial judge.  Early last year, her behavior led to her removal from the Harris County mental health court by her fellow judges.  She aggressively tried to block her opponent's candidacy by way of a lawsuit, which failed.  Most concerning, however, were her statements to the Houston Chronicle editorial board this year:
"My job is to protect the public from dangerous people," Krocker said.  "Same as being a prosecutor."
Um, no.  Not even close.  Krocker's unbelievable statement to the Chronicle is mindnumbingly foolish.  She basically stated that she was a prosecutor.  How does a defendant get anything resembling a fair trial with that mentality? Krocker's statement to the Chronicle has already led to one Motion to Recuse being filed against her due to her bias.  I have no doubt that there will be many more to come.

Mark Thering, on the other hand, is a highly respected, long time attorney who is known as one of the nicest guys in the courthouse.  He has a strong background in Criminal Law and would make an outstanding judge.  This one is a no-brainer and I hope even my "die hard" Republican voter friends will cross party lines in this race.

Recommendation:  Mark Thering (D)

185th District Court -- Susan Brown (R) vs. Garland McInnis (D)

Judge Brown has been on the bench for as long as I've been a licensed attorney.  I've tried cases in front of her as both a prosecutor and a defense attorney, and have felt like I received fair trials from both perspectives.  Judge Brown stays up-to-date on all current case law dealing with criminal cases and can name those cases off the top of her head.  Although I'm not as big of a fan of the new docket management system as she (and other judges) are, I have to commend her for working on creative solutions to make the CJC a more efficient institution.  Not only is she managing her own caseload, as presiding judge, she has worked hand-in-hand with both the D.A.'s Office and the Defense Bar to make the CJC a better place.

I have nothing negative to say about Garland McInnis.  He's a nice guy and a smart guy.  If he were in a different race, I would probably vote for him.  However, in this race Susan Brown is the much better candidate.

Recommendation:  Susan Brown (R)

208th District Court -- Denise Collins (R) vs. Chuck Silverman (D)

Judge Denise Collins has been presiding over criminal cases since 1992.  Her opponent is a corporate lawyer who seems to run for any open bench is available.  I've stated time and time and time again that the Criminal Justice System is absolutely no place for people who have no experience in the criminal justice world.  The audacity of a non-criminal attorney even seeking a bench where he has no experience is offensive.

Recommendation:  Denise Collins (R)

230th District Court -- Brad Hart (R) vs. Greg Glass (D)

Since being appointed to the bench in 2013, Judge Brad Hart continues to earn rave reviews from both the Defense and the Prosecution as a kind, fair and intelligent judge.  He is courteous to all who enter his courtroom and he works hard to make sure that his court is continuously in trial.  I know I'm biased, but Judge Hart has proven to be just as good of a judge as I predicted he would be back in 2013.

Again, I have nothing negative to say about his opponent, Greg Glass, but Judge Hart is too good of a judge to vote against.

Recommendation:  Brad Hart (R)

248th District Court -- Katherine Cabaniss (R) vs. Shawna Reagin (D)

The race for the 248th District Court also has two qualified candidates for the position.  Judge Katherine Cabaniss was appointed to the Bench last year and has done an excellent job in doing everything she can to improve the Court she inherited.  She has actively worked at making her court more efficient and also goes to trial quite often.  She has sought input from both the prosecution and the defense on how to improve the system.

Surprisingly, I have not seen former 176th Judge Shawna Reagin since she left the bench at the end of 2012.  As I wrote during the 2012 campaign, I think Reagin was a good and smart judge.  Her demeanor and commentary from the bench earned her some enemies during her tenure as judge.  In another race, I would probably still vote for Reagin, but in this case, my recommendation goes to Judge Cabaniss.

Recommendation:  Katherine Cabaniss (R)

262nd District Court -- Denise Bradley (R) vs. Jules Johnson (D)

On a personal level, this race is tough to make a recommendation on, because both Judge Bradley and Jules Johnson are personal friends.  I like them both immensely and I almost didn't do recommendations at all this year because I didn't want to make a public statement on who I would pick in this race.  The danger of blogging on elections is that you are guaranteed to anger 50% of those whom you write about.

That being said, when it comes to qualifications, Judge Bradley has far more experience that my friend Jules.  She was a longtime prosecutor and has been a judge for several years now.  She's done a great job on the bench and is well liked by both the prosecution and the defense.  There is no reason to vote against her.  I know I keep saying this, but in a different election, Jules Johnson would definitely get my vote.

Recommendation:  Denise Bradley (R)

263rd District Court -- Jim Wallace (R) vs. Herb Ritchie (D)

Again, we have two qualified candidates running against each other with Judge Jim Wallace facing off against former 337th Judge Herb Ritchie.  I have practiced and tried cases in front of both men, and both are excellent judges who know the law and provide fair trials to the accused.  They are both to be commended for running a very clean campaign against each other.

Judge Wallace has more experience as a judge and he has done an excellent job in his years on the Bench.  While I have nothing negative to say about Ritchie, this is a very easy recommendation.

Recommendation:  Jim Wallace (R)

County Court at Law # 2 -- Bill Harmon (R) vs. Harold Landreneau (D)

I think that Judge Bill Harmon has been on the Bench since dinosaurs roamed the earth.  He was consistently re-elected during his time as a District Court Judge and now as a County Court at Law Judge.  There's a reason for that:  he's a good judge.  Although his strong ties to MADD have occasionally drawn the ire of the Defense Bar, at the end of the day, he is considered to be a fair and smart judge.  He is also one of the best personalities on the Bench.

I have nothing negative to say about Mr. Landreneau, although I don't know him very well.

Recommendation:  Bill Harmon (R)

County Court at Law # 4 -- John Clinton (R) vs. Nikita "Niki" Harmon (D)

I will admit that I had some reservations about Judge Clinton  (due to his not practicing criminal law) when he ran for the bench four years ago.  I have been pleasantly surprised with my experiences with him during his first term as judge.  Judge Clinton has proven himself to be a fair judge, and more importantly, a kind one.

I don't know anything about his opponent, other than she is a municipal court judge, I believe.  There is a big leap from trying traffic tickets to the job of County Court Judge.

Recommendation:  John Clinton (R)

County Court at Law # 5 -- Margaret Harris (R) vs. Ramona Franklin (D)

I was the Chief of County Court at Law #5 back when Janice Law was on the bench and now-Judge Margaret Harris was running against her in the Republican Party.  I was so relieved when Judge Harris won that race and she hasn't disappointed during her years on the job since then.  Judge Harris has used her appellate experience from her time at the District Attorney's Office to become an effective and knowledgable judge.  She is highly respected and well liked by both the Defense and the Prosecution.

I have nothing negative to say about Ramona Franklin, but her level of experience is nowhere near what Judge Harris brings to the Bench.

Recommendation:  Margaret Harris (R)

County Court at Law # 6  -- Larry Standley (R) vs. Linda Geffen (D)

In today's day and age of politics and partisan rules, Judge Larry Standley has proven time and again to be a judge who isn't afraid to rock the boat when it comes to doing what is right.  His occasionally gruff demeanor can hide an extremely compassionate jurist who is willing to think outside the box when working on creative solutions in his courtroom.  Judge Standley is known for his knowledge of the law and his firm neutrality in deciding all cases.  He is active in the community and absolutely is the kind of judge that all people should want on the Bench.

I don't personally know Linda Geffen, but this bizarre story from 2012 calls into grave question whether or not she should be the person in charge of making important decisions that affect peoples' lives.

Recommendation:  Larry Standley (R)

County Court at Law # 7 -- Pam Derbyshire (R) vs. Sheila Acosta (D)

Judge Derbyshire was the first judge that I practiced in front of as a prosecutor.  She was great then and she is great now.  Described by the Houston Chronicle as having a "sterling reputation," I could not agree more.  I have nothing negative to say about Sheila Acosta.  She, too, has a great reputation, but Judge Derbyshire should stay on the bench.

Recommendation:  Pam Derbyshire (R)

County Court at Law # 8 -- Jay Karahan (R) vs. Kelli Johnson (D)

Sometimes I wimp out on making a recommendation.  This will be one of those times.  Judge Jay Karahan has done a great job on the bench during his tenure.  Kelli Johnson is one of my oldest friends from the District Attorney's Office.  Our kids are friends and I adore her as a family friend. She would also make a great judge. Either one of them would deserve your vote.  I cannot fairly make a recommendation in this one.  Both are great.

Recommendation:  None

County Court at Law # 10 -- Dan Spjut (R) vs. George Barnstone (D) vs. Brad Walters (L)

I didn't know until earlier this week that this was a three party race, with Brad Walters running as a Libertarian.  As anyone who read this blog knows, I was a big supporter of Tonya Rolland in her bid for the Republican nomination in this race.  My issue with Spjut was that he doesn't practice criminal law and neither does Barnstone. Barnstone appears to be a joke of a candidate who has never set foot in the CJC.  He doesn't deserve anyone's vote.

During the primary, the Chronicle described Rolland as the only qualified candidate when it came to the candidates running as a Democrat or a Republican.

Since then, Brad Walters has announced his candidacy as a Libertarian.  Brad Walters doesn't stand much of a chance running as a Libertarian, but he's a criminal defense attorney and knows the material.  He gets my vote.

Recommendation:  Brad Walters (L)

County Court at Law # 13 -- Don Smyth (R) vs. Jason Luong (D) vs. Clint Davidson (G)

If you thought Brad Walters running as a Libertarian was unusual, you gotta admire Clint Davidson running as a member of the Green Party.  Too many of our criminal candidates are not eco-friendly.

I like Clint a lot and he's a damn good lawyer.  So is Jason Luong.  Both are legitimate candidates who would make great judges.

But Don Smyth has done a great job during his first term on the bench and his years of experience at the D.A.'s Office make him the best candidate in this race.

Recommendation:  Don Smyth (R)

County Court at Law # 14 -- Mike Fields (R) vs. David Singer (D)

My recommendation in this race was a hard one to make because I've known Judge Mike Fields since I began my legal career in Houston back in 1999.  Judge Fields is a great guy and a funny guy, but his behavior of late has just been wrong.  HCCLA (an organization of which I'm a former member) brought to light the fact that Judge Fields was taking pleas from unrepresented defendants and there have been other tales of him doing bond revocations on defendants without hearings, as well as interrogating defendants without their lawyers being present.  As much as it pains me to say it, I can't support a judge who is doing such things.  He's a nice man, but he has been on the bench long enough to know he can't do those kind of things.

David Singer is a former prosecutor and defense attorney.  He's running against Judge Fields because he knows that type of behavior just can't be allowed.

Recommendation:  David Singer (D)

County Court at Law # 15 -- Jean Spradling Hughes (R) vs. Raul Rodriguez (D)

Judge Jean Hughes has served as the Judge of County Court at Law # 15 since long before I became a lawyer.  To say that she is highly respected in the way she runs her court would be a vast understatement.  She has my utmost respect and the respect of almost all who practice in front of her.  She is knowledgable, courteous, and fair.  She embodies all the qualities that a judge should have and she deserves your vote.

Raul Rodriguez is a great guy and a good lawyer.  He falls under the category of "if you were running against someone else, you would totally have my vote."

Recommendation:  Jean Spradling Hughes (R)

Harris County District Clerk -- Chris Daniel (R) vs.  Judith Snively (D)

You know I can't leave out Chris Daniel when it comes to election time.  He's done a great job as District Clerk and he deserves to remain on the job.  Chris remains a very progressive District Clerk who is open to input from anyone willing to give it.  He strives everyday to make his office better and as technology progresses, so does his office.  Even though he's a T-Sip, he's got my vote.  He should have yours too.

Recommendation:  Chris Daniel

AND DON'T FORGET ------ David Newell

I normally don't make recommendations on the Appellate races, because I don't do Appellate work.  However, voters need to make sure that they remember to vote for Harris County Assistant District Attorney David Newell for Court of Criminal Appeals, Place Nine.  Not only is he a great guy with great legal knowledge and a great sense of humor, his knowledge of James Taylor music (and his willingness to cite it at the Bench) will make him a fantastic Justice.

Whether you agree with my selections or not, please remember to get out there and vote.

Saturday, October 18, 2014

People Unclear on the Concept

I've always been a fan of the Joe Martin comic strip Mr. Boffo, which I always considered similar to the Far Side.  One of my favorite things he would draw featured "People Unclear on the Concept."

I had my own experience with a person "unclear on the concept" this afternoon while visiting my hometown overnight.

My wife and kids and I came into town late this afternoon for a friend's funeral tomorrow.  This visit, we're staying with my mother-in-law at her house.  I parked (legally) on the street in front of the house, and unloaded everything into the house.

About fifteen minutes after my arrival, the doorbell rang.  I corralled the dogs and kids and answered it.  A frazzled woman that I didn't recognize stood there.

"Who does that car belong to?" she asked, pointing to my (again, legally parked) 4-Runner.

"Mine," I said.

"Well, I hit it."

"Uh oh," I said.  "Is it bad?"

"Yes," she said.  So, we went out to take a look.  It wasn't too too bad.  There was a small dent and a good amount of scraping on my back passenger door.  It will need to be fixed.   As it turns out, the lady lives across the street from my mother-in-law, and backed straight out of her driveway and T-Boned my car.

"I'm so frustrated," she said.  "I just got it fixed from backing into a car parked where yours was two weeks ago.  My insurance agent is going to be so mad at me."

Well, yeah, I would assume so.  Apparently, my mother-in-law's neighbor just slams it into reverse and plays Russian Roulette with her car when backing out of her garage.

I smiled sympathetically, and said, "How would you like to handle this?"

She looked at me quizzically.

"Well," I said, "would you like for me to get an estimate and let you know how much it is going to be?"

"I don't know.  You can just talk to Jeff about it."


"My insurance agent," she said.  "You can just drive it up there and see what he says to do."

"Um, well," I said, trying to be nice, "I can give him a call, but I'm not just going to drive up there."

So, we stood there awkwardly for a few moments.

"Maybe, you can just give me your information," I suggested.

"Okay," she said.  "I'll go write it down."

I smiled and went back inside to try to control a hyperactive 11-month-old, who was tempting fate with a heavy wooden rocking chair.  Five minutes later, the lady knocked on the front door.  She handed me a piece of paper with her name and address (in case I couldn't read the street number across the street), as well as the name of her insurance agent.  The piece of paper didn't include the agent's phone number, the insurance company's name, or policy number.

Being that we are in the small town that we grew up in, I wasn't too worried about figuring it out.  I also didn't want to create a problem for my mother-in-law with her neighbor.  I took the piece of paper and thanked her.

I was about to go back inside with the baby, but she had one more thing to tell me.

"By the way," she told me sternly, "you need to move your car and park in the back of the house from now on.  And tell your people to park in the back from now on, too."

Yes ma'am.  I'll get right on that.

Thursday, October 16, 2014

Richard Gallego

As most of you probably know by now, fellow attorney, Richard Gallego, passed away earlier this week.  His friend and co-counsel, David Pendleton, was kind enough to write these words of remembrance for Richard, and to send this photo of Richard, his wife Laura, and their new granddaughter, Isabella.

On Monday, October 13, 2014, I met my friend, Richard Gallego, in 232nd to work an Evading Arrest case. Like we have done 1000 times before. He talked to the defendant's Mom while I reset the case. We said good bye to them and then Richard did what he always did. He told me about the Mom and how she works at a bank and how she has tried to keep her son, the accused, in line. He always cared about the family and not just the "case". 

For some reason on Monday Richard told me how much he loved his own family and how much he is blessed to spend time with his family. His family was the most important blessing in his life. His children are exemplary people. I know his son Robert well (he is also an attorney). Richard and his wife did a great job raising honorable children. 

A few hours later his son Robert contacted me...he had found Richard on the floor in the living room. He tried to revive him. Richard fought, like he always did, but he passed away. Apparently from a heart attack. 

His family and all of us that that knew him are shocked and saddened. 

He was married for 33 years to his sweetheart Laura. He had three children: Robert, Corinne and Paul. The newest family member is his granddaughter Isabella. 

Services will be at:
Forest Park East
21620 Gulf Fwy
Webster,Tx 77598

Viewing; 5-8pm
Rosary; 7pm

Funeral; 10:00 AM

David Pendleton

Tuesday, September 23, 2014

Sgt. Roger Chappell Retirement Party

My good friend and HPD Sergeant Roger Chappell is retiring from the Department after over two decades of service.

There will be a retirement party for him at the Char Bar, 305 Travis Street, Houston, TX 77002 on Thursday, September 25th at 4:00 p.m.

Come and join us in saying goodbye to a great cop and a great friend as he heads to greener pastures!  Everyone is invited!

Thursday, September 11, 2014

Belief: The Darryl Tindol Case

On January 23rd of 2013, a woman named Susan Harper was seen getting out of her car at Irvington (AKA Robertson) Park in North Houston.  Her shirt and upper torso were on fire.  Two witnesses helped extinguish the fire and called for help.

As they were helping to extinguish her, my client (and Susan Harper's boyfriend), Darryl Tindol came walking up to them from the opposite side of the park from the fire.

Two Houston Police Department officers arrived and asked her what had happened.

"I dropped a cigarette on my blouse and it caught fire," she told them.

They did not believe her.

They asked her what really had happened and noted that their belief was that she had been the victim of an assault.  
"She at first would not say that she was [sic] victim of assault other than she was smoking and caught herself on fire."
But, they persisted with their belief.
"The Complainant was asked by this officer what had really happened to her and they were there to help her and who had done this to her." Emphasis added.
It was then the officer noted that the complainant changed her story and stated that her boyfriend had punched her and thrown a cigarette on her, causing her shirt to catch fire.

Suffering from severe burns over the upper half of her body, Susan Harper would survive in a hospital for another nine months before finally, mercifully, dying in September of 2013.

During those nine months, the police suspected that Darryl Tindol was responsible for her death.  Darryl was a quirky man.  Sometimes homeless, his demeanor was odd to them.   Despite the fact that Darryl had no burn marks (or any other signs of having been near a fire) on his clothes or body, they remained suspicious.  In their belief, he wasn't appropriately upset over what had happened to his common-law wife.  He met with the officers whenever they asked to speak with him, but that still was not enough.
"I did not observe any tears come from the suspect Darryl's eyes at any time while I spoke to him throughout this interview."
Despite their belief that he wasn't showing appropriate remorse, Darryl Tindol's story remained the same each time he talked to the authorities.

Walking around Irvington Park was a regular event for him.  He and Susan would drive there in her car.  She would sit in the car and have a cigarette or two while he walked around the perimeter.  On the morning of January 23rd, as he began his walk, he told her to lock the door.  She told him to pull his pants up.  He was on the diagonally opposite side of the park when he realized something was going on where he had left Susan.  He immediately began heading back that way.

It was the same explanation he would tell me on the day I met him.

Understandably, Susan Harper's family would not let him visit her in the hospital, nor would they update him on her condition.  Why would they?  Their belief was that he had committed the most heinous of acts against their family member.

It wasn't until shortly before Susan Harper's death that charges of Aggravated Assault were filed against Darryl Tindol.  Immediately following her death, those charges were upgraded to murder.

As usual, the commenters on the news websites reacted with bloodthirsty fervor to their belief that Darryl had committed an unspeakable act.  Most advocated that he too be burned to death.  Some argued that he be placed in a woodchipper.  The most creative comments came from London's Daily Mail website:

But the problem with all of these beliefs was that they were wrong.

Darryl Tindol didn't kill Susan Harper, nor did he have anything to do with her tragic and painful death.  Susan Harper died as the result of an accident.

From the day I was appointed to represent Darryl, he told me the same thing.  Every time we met.  He loved Susan.  He didn't kill Susan.  He believed that low blood sugar had caused her to faint and drop the cigarette on herself.  He would answer any question the police had for him and he would take any polygraph.  He would cooperate to the fullest extent humanly possible.

And my belief was that Darryl Tindol was telling me the truth.  His case was set for trial in November.

Assistant District Attorney Greg Houlton would ultimately become the prosecutor handling Darryl Tindol's murder case.  I had dealt with him on a few minor cases here and there over the years and always found him to be a reasonable guy.  He listened to every last thing I said about the Tindol case.  He pulled every last record and report and read them from start to finish.  He listened openly when I told him that I thought it would be physically impossible for Darryl Tindol to have set Susan Harper on fire and then run to the completely opposite side of the park and return to the scene of the fire within a matter of seconds.

It isn't an easy thing for a prosecutor to dismiss a murder.  The victim's family is guaranteed to be devastated and angry.  The police investigators won't be happy either.  Dismissing a murder case is rarely a popular decision.

With such horrible circumstances as a death by burning, it is only human nature to believe that another person must surely be held accountable for it.

But Greg and his Division Chief, Lance Long, set those beliefs aside and looked to where the evidence led them.  They met with arson experts.  They went to the crime scene and met with the witnesses who had first seen Susan Harper.  They had them point out where in the park they had seen Darryl Tindol coming from.

Greg called me yesterday afternoon to tell me they were dismissing the case.  As much as I would like to take credit for a dismissal on a murder case, it was his open mind and willingness to look into the facts independently that brought this sad case to the just resolution.

At some point today, Darryl Tindol was released from the Harris County Jail.  I doubt I'll ever hear from him again.  Like I said earlier, he's kind of a quirky guy.

He was in custody for just shy of a year for a crime he didn't commit.

Friday, August 22, 2014

Where Kim Ogg Jumped the Shark

Back in September of 2013, when Kim Ogg announced her candidacy for Harris County District Attorney, I made the statement "I'm just happy that we have two candidates in the race who actually care about Criminal Justice."  I'd known Kim for years and thought highly of her and her no-nonsense approach to her job.  She was certainly a better candidate than the moronic Lloyd Oliver (whom she easily defeated in the Democratic primary) and she certainly wasn't as mean-spirited and incompetent as Pat Lykos.

Although I still planned on supporting Devon Anderson for District Attorney, I didn't think there would be too much negative to say about Kim.  I was actually looking forward to the debating of the issues the affected Harris County Criminal Justice.

There was a warning sign (at the time of Kim's announcement) that foreshadowed a dirty campaign, unfortunately.  Photos published by Dave "Big Jolly" Jennings on his website here  showed Ogg shaking hands with self-proclaimed "energy trader" (and husband of Rachel Palmer), Don Hooper -- as Palmer's attorney Clay Rawlings and former-Lykos 1st Assistant Jim Leitner smile in the background.  Why exactly would a former Republican candidate for D.A. and a self-proclaimed "Republican Activist" be at a Democrat's campaign announcement?

Despite Kim's affiliation with Hooper and Leitner, I remained optimistic that a good, clean campaign would be run.  Sadly, Kim's press conference yesterday illustrated again that politics bring out the worst in otherwise good people.

Yesterday, the Democratic candidate for D.A. decided to make intellectually dishonest attacks on the Harris County District Attorney's Office over the Office's handling of the investigation into former-HPD Homicide Sergeant Ryan Chandler.

In the interest of full disclosure, I'll tell you right now that Ryan Chandler is a good friend of mine.  His wife, Inger (formerly Hampton) Chandler is someone that I consider to be one of my best friends.  Ryan visited me in the hospital when I was recuperating from chemo, this time last year.  I was invited to their wedding and I gladly attended.  I know what has been written about Ryan ad nauseum.  He is still my friend and he is a good friend.

So, if you want to take the following with a grain of salt, feel free.

When the news of the investigation into Ryan began, District Attorney Devon Anderson recused the Office from the investigation due to the fact that Inger was an Assistant District Attorney there.  It was a no-brainer of a decision and the Montgomery County District Attorney's Office was brought in to handle the investigation.  No criminal charges were filed.

This was standard operating procedure and one that has been frequently done in other instances involving potential conflicts of interest with a prosecuting agency.  The rules were followed and the Harris County District Attorney's Office never became involved with the handling of the case.  The results were entirely out of that Office's hands.

And Kim Ogg knows that.  Yet, she decided to attempt to make a disingenuous argument in order to jump on the wave of attention that the HPD scandal is currently attracting.

As most of you probably are aware, Houston Chronicle reporter James Pinkerton (who is apparently the head of the paper's Ryan Chandler Bureau) has been writing a series of articles about the HPD Homicide Scandal.  In addition to covering the different cases involved and the people affected, Pinkerton has also covered everything from Ryan's grades in guitar class in Junior College to his high school classmates' belief that he would become a radio DJ.  The Warren Commission didn't get this much detail when they looked into Oswald.

Kim knew that all she would have to do was mention Ryan Chandler's name in a press release and Pinkerton would come running with a pen and paper in hand.  She knew that she could make the silly argument that the D.A.'s Office somehow did wrong by recusing itself and he would write the article as if it were gospel.   Kim didn't disappoint him.
"The DA has cut another backroom deal, to the benefit of a political supporter [Chandler], the romantic partner and current husband of the DA's lawyer in charge of her conviction integrity unit."
"Romantic partner and current husband"?  Ooh.  Sounds salacious.  "Backroom deal"?  Sounds dirty.

Devon Anderson removed her Office from all involvement in the case to specifically avoid any questions about the propriety of how it was being handled.  She asked a neighboring county's District Attorney to investigate.

But, wait, Kim Ogg doesn't think that Montgomery County D.A. Brett Ligon should have been the investigating Chandler, either.  Why?  Because Brett Ligon formerly worked for the HPD Police Union.  His ties to representing police officers in employment matters somehow made him an unfair investigator?

That's kind of a funny accusation coming from Kim Ogg, who also has a lengthy history of representing police officers in "employment matters" and brags of it ON HER OWN WEBSITE.  Calling Brett Ligon's integrity into question was baseless and silly.

All of this press conference from Kim Ogg is baseless and silly, too.  Kim has been practicing law since I was in junior high school.  She knows that the recusal of the Office was handled appropriately, yet she deliberately misled the Press for political advantage.

And that's a move straight out of the Pat Lykos playbook.

Kim, you're better than that.  At least, I thought you were.

Tuesday, August 12, 2014

The Sad Reality of Mental Illness

Like most of you, I was genuinely surprised to learn of the death of Robin Williams yesterday.

Although I make no claims of being his "biggest" fan, I grew up watching him.  His career coincided with my childhood and I can remember finding him wildly hysterical when I was younger.  As I grew older, I found him much more compelling as a dramatic actor than as a comedian and I rank "Dead Poets Society" as one of my all-time favorite movies.

Even though I may not have enjoyed many of his zanier roles as much as his more sedate ones, I liked Robin Williams.  I thought he busted his butt to use his celebrity to help good causes.  He had his personal demons, but at the end of the day there was something about him that conveyed he was a decent person.  More so than most celebrities in Hollywood, there was something about Robin Williams that made me, and many others, feel like we knew him.

I think that's why learning that he took his own life yesterday feels so shocking.  It is hard for us to reconcile the wild comedian with the man who took his own life while suffering from depression.

But it shouldn't be.

Robin Williams was suffering from the mental illness of depression.  It should be no more shocking that he took his own life as a result of it than it would be to learn that a person suffering from cancer has died of it.    Please don't misconstrue what I'm saying -- it doesn't make his death any less sad.  It just shouldn't be surprising.

I say this because it is my belief that the majority of people in our society pay lip service to mental illness, but they never really take time to grasp the reality of it.  We can nod sympathetically when we hear of a friend suffering from bi-polar disorder or depression, but do we ever truly give it the understanding that we would a more recognized illness?

Take a moment and ask yourself if you would give the same credence to both of the following statements:

"Bob can't come to work today because he has the flu," and "Bob can't come to work today because he is having a psychotic episode due to previously diagnosed schizophrenia."

Do you consider both of those sentences the same?  I doubt it.  Nobody would blink at someone missing work due to the flu.  However, a mental illness excuse, at best, would draw skepticism.  At worst, it draws fear.

As most of you know, issues of mental illness are very personal to me because of a heartbreaking experience that occurred a few years ago with a friend from high school.  And  earlier this year I found myself looking at mental illness from a more clinical perspective when I (unsuccessfully) utilized the Insanity Defense in my representation of a defendant in a murder case.

The death of the victim in the case was brutal and indicative of someone out of control of his "right" mind.  There was no motive, but there was explanation.  My client had extreme mental health history dating back for over twelve years.  He had been experiencing auditory and visual hallucinations coupled with homicidal and suicidal ideations since his early teenage years.  He was diagnosed as paranoid schizophrenic and had repeated admissions to psychiatric facilities throughout his life.

His most recent trip to the psychiatric hospital had ended in his release the day before he killed the victim.  Immediately after her death, he attempted to check himself back in to a hospital -- telling the admitting staff that people were trying to kill him and that he believed he may have killed one of them.  He asked that the police be sent to investigate.

In a trial in Texas where the Defense utilizes the Insanity Defense, the jury is not allowed to be told that a "Not Guilty by Reason of Insanity" verdict results in the Defendant being sent to a lockdown mental health treatment facility.  The Code of Criminal Procedure states:

"Art. 46C.154.  INFORMING JURY REGARDING CONSEQUENCES OF ACQUITTAL.  The court, the attorney representing the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of a not guilty by reason of insanity is returned."

In trial, the Defense has to prove an Insanity Defense beyond a preponderance of the evidence, meaning that there is a better than 50% chance that "as a result of severe mental disease or defect," the defendant "did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of law."

With the mental health background of my client, the expert testimony of the doctor who examined him, the facts of the case and the assistance of my friends and fellow attorneys Michael Edwards and Jason Truitt, I felt I had an outstanding example of a true insanity defense.  Judge Susan Brown gave us a fair trial and prosecutors Tameika Badger-Carter and Denise Oncken were above board and great to deal with throughout.

But the jury rejected the Insanity Defense.  My client was found guilty and sentenced to 25 years in prison

Why?  I can't say for sure.

Maybe I did a bad job conveying it or maybe it is just sour grapes after the fact, but I don't feel that my client's mental illness was given the true consideration that it deserved.

I would surmise that the brutality of the crime was frightening and upsetting to the jury.  Something as intangible as "mental illness" could never excuse such a heinous act.  Unlike cancer, pneumonia, Ebola, or even the flu, you can't see mental illness.  You can't put it on a slide and put it under a microscope and confirm its existence.  There is nothing concrete to prove to a juror how real it is.

But it is so very real.  It isn't just a topic that we should pay lip service to.  It is something that needs much more than just a sympathetic nod that comes with no attempt at true understanding.

If it weren't real, then why on Earth would a successful and seemingly joyful person like Robin Williams choose to end his life?

Robin Williams did a lot of good things for a lot of people during his lifetime.  He was one of those celebrities that seemed to constantly be leading the charge when a cause needed assistance.

Maybe in his death, he can continue that legacy by bringing true understanding and assistance to those suffering from mental illness.

Monday, August 4, 2014

An Important Breakfast

In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar.  We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.

"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.

"I've been a defense attorney for about five minutes," I replied.  "I don't really think I've got the depth of experience on this side to do that blog post quite yet."

Over the past five years, I've revisited that conversation frequently.  There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor.  It could even be humorous.  I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it.  Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.

In the back of my mind, however, I did have an idea for a blog post.  It focused on one simple theme.

That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.

I'm not going to give any details of my client's case.  They aren't really relevant -- other than to say he was charged with a low level misdemeanor.  My client was a blue collar guy.  He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.

A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast.  Unfortunately, I had to be back in Harris County for a setting, and declined.

This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.

We had met two weeks ago in my office and we had gone over every last detail of his case.  I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal.  In the terms of factual evidence, it wasn't a very debatable point.  Despite my clear advice, he said he wanted to think about it.  I understood.

We talked on the phone a week ago and he said that he was still mulling it over.  He said he would call me back later in the week and let me know what his decision was.  I told him that was fine.

We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.

So this morning, we met for breakfast at a greasy spoon restaurant.  I got there before he did and ordered a coffee.  He arrived a few minutes later.  We talked briefly about the pros and cons of his case and I gave him my advice.  He listened intently, but he didn't really say much.

There was an uncomfortable silence while we ate our food.  I didn't want to press him for an answer as to whether or not he wanted to take the prosecutor's plea offer.  I knew he was processing the information.  Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence.  So, I made small talk with him.  The more small talk I made, the more I realized how very little I knew about my client's personal life.

"You know," I said.  "I don't even know if you are married."

"I was," he said.  I was about to make a joke about how many times I "was" married, but for some reason, I refrained.  I'm glad I didn't say anything.

"We were married for 29 years," he continued, "but she died of breast cancer in 2009."

"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.

"I broke my back in two places in an accident the next year," he said.  "I haven't really been able to move right since."  He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month.  He wasn't trying to elicit sympathy from me.  He was just telling me about himself.

He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.

"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"

At the end of breakfast, I picked up the check.  He thanked me for breakfast, but more importantly for meeting him for breakfast.  When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day.  As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.

When we got to court, I talked to the prosecutor.  Objectively, she was reasonable.  She said that she would agree to a "time served" offer, but she was going to raise the fine significantly.  I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer.  She wasn't all that interested in what he had going on in his life.

And the case was resolved.

So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?

What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole.  Generally, their judgment of a person is based on the crime they are charged with.  I don't say that in an accusatory manner.  That was how I operated as a prosecutor when I held that position.

As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history.  We get to know our clients.

Or at least we should.

I should have done a better job of getting to know my client long before "plea or trial" day.  I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day.  I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.

I could have done a better job of letting them know that my client was not defined by the crime he was charged with.

So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act.   A Prosecutor has more of a tendency to look at the act alleged and then judge the person.

That's the difference.  Everything else flows from that.