Friday, December 30, 2016

The Ogg Administration [Minor Edit]

After many (mostly accurate) rumors, incoming Harris County District Attorney Kim Ogg announced the personnel for her upper administration today.  With some glaring exceptions, for the most part the choices are pretty good.   From the comments that are already coming in (before I had the opportunity to write this particular post), it is clear that there will be some criticisms, but the following are my personal opinions of the individual hires:

Vivian King -- Chief of Staff  To begin with, Chief of Staff is a relatively new position within the Harris County District Attorney's Office, but it makes sense to have one.  It wasn't there when I was there, but it has been brought to my attention that the position was created under the Anderson Administration.  Kathy Braddock has held the position since it was created, which also makes sense because Kathy is awesome.  The First Assistant position has traditionally been a de facto Chief of Staff position, but given the logistical duties typically handled by the First Assistant (i.e., dealing with the budget and Commissioners' Court), it makes sense to create a Chief of Staff who operates without having to deal with those particular duties.

With that in mind, I think Vivian King is an outstanding choice.  Vivian, who was last seen starring in Sisters-in-Lawis a respected trial lawyer who has an extensive trial resume.  She's defended death penalty cases with an impressive record, and has the street cred to function as the head of an Office where trial ability is vital.  I tried a case against Vivian during my prosecutorial days and she was a talented and pleasant adversary.  She will also be a reasonable mind when it comes to making decisions for the office.  I was surprised to see her leaving the Defense Bar, but she'll be a great addition.

David Mitcham --  Interim First Assistant and Trial Bureau Chief   I was completely surprised to see Dave going back to the District Attorney's Office after a multi-decade absence.  I'm a big fan of his and have respected him during my time as both a prosecutor and a defense attorney.  Like Vivian, he also has no fear about going to trial, which will serve the Office well in his role as Trial Bureau Chief.

I am mildly confused at the blending of the roles of Trial Bureau Chief and First Assistant, and I'm speculating that the "Interim" part of this indicates that this blending is only temporary.  If it is temporary and a full time First Assistant is coming at a later date, it begs the question of who that First Assistant is going to be.  It could be a defense attorney who needed just a little more time to wrap up his or her cases before joining the Office.  That's just speculation on my part, though.

Hon. Barbara Hartle -- Administrative Bureau Chief  I don't know anything about Barbara Hartle other than what I've seen from briefly scanning the internet.  It appears that she is a Municipal Court Judge.  The title of Administrative Bureau Chief is also a new one to me, so I'm not entirely sure what that is all about.  It sounds like something resembling what Hannah Chow did under the Lykos Administration.

Yvonne Q. Taylor -- Training Coordinator  Again, this is not a name I'm familiar with, and it appears she was also pulled from the City of Houston Municipal Courts. It doesn't sound like we will be seeing her in court much.

JoAnne Musick --  Sex Crimes Unit Chief  Another surprising addition to the Ogg Staff was the return of former prosecutor and two-time President of the Harris County Criminal Lawyers' Association, JoAnne Musick.  Since leaving the Office over ten years ago, JoAnne has been an extremely vocal champion of all things Criminal Defense.  Most people I know were very surprised to see her leaving the Defense Bar.

JoAnne and I aren't exactly friends, but I respect her ability and dedication to whatever project she tackles.  When she was with the Office, she was one of the ones who always tackled extra projects in an effort to make the Office better.  She tackled being a Defense Attorney with the same gusto.  She always kind of reminded me of the kid who turned in her school Science Project the day after it was first assigned.

Sex Crimes Unit Chief will also be a new position with the Office.  I am curious as to whether or not it will incorporate child sex crimes and adult sex crimes under the same Division.

Carvana Cloud -- Family Criminal Law Unit Chief  This is probably my favorite hire under the Ogg Administration, because I'm a Super Fan of Carvana.  She and I have been friends since she started at the Office and she earned my respect with the way she handled her poor treatment under the Lykos Administration.  Carvana is well liked and highly respected by her peers on both the prosecution and the defense.  My only complaint about this is that I wish she had an even higher position within the Office.

Nathan Beedle -- Misdemeanor Division Chief  This one was also a surprise and a blast from the past.  Beedle was a year or two behind me at the Office and he left as a Felony Two.  He disappeared out of the criminal law realm for several years, but reappeared a few years back.  Nathan is a cocky smart ass, but I like him.  We often found ourselves in cut down battles during our misdemeanor days, but he was regarded as a very talented trial lawyer.

Nathan left the Office after getting crossways with the Upper Administration for turning in his two week notice shortly after attending Career Prosecutor School.  You can expect there to be some grumbling about that by some of the older former prosecutors.  Contrary to those grumblings, I think he will actually be a good trainer to younger lawyers.  I'm glad to see him back.

Sean Teare -- Vehicular Crimes Unit Chief  Again, I (and most of Sean's friends) were surprised to see his name pop up on the list of returning prosecutors to the Office.  He's a good friend of mine, but since leaving the Office for the Civil World during the Lykos Administration, he's been rather missing in action.  I'm glad to see him back at the D.A.'s Office.

There has been some grumbling that Sean left the Office as a Felony Three and did not have experience trying cases that involved fatalities.  Given the fact that Vehicular Crimes handles mostly Intoxication Manslaughter cases, some have argued he doesn't have the experience to head the Division.  However, Sean has been a lawyer for over nine years, and he's a good one.  He may have some learning to do, but I imagine he will ultimately do just fine.  He's got guts and he's not afraid to speak his mind if a case doesn't rise to the level of being provable beyond a reasonable doubt.  That's an asset in a Division that will deal with extremely emotional cases, where ration can sometimes be in short supply.

Colleen Barnett -- Floating Felony Court Chief   Also from the Blast from the Past Files, we have the return of Colleen Barnett as Floating Felony Court Chief.  Again, I think this is a good call.  Colleen is also a friend of mine, and she is one hell of a trial lawyer.  I had heard rumors that she was returning to the Office, and I'm glad to see her coming back.  I would imagine that Colleen is going to be the Designated Hitter on a lot of very tough trials in the near future.

Some friends were surprised that Colleen was given a Floating Felony Court Chief position when there are currently so many District Court Chief positions that will need to be filled.  I would imagine that this has more to do with her taking on tougher cases and not being limited to just any court.  She has the experience to be the leader of the Trial Bureau, but apparently she has taken on the role of Ninja Assassin for the Office.  This is interesting, because it seems to be a small preview of the restructuring of the Office's hierarchy.

Alex Forrest -- Environmental Unit Chief This one has some people scratching their heads because not many people know Alex.  I've known him for several years now and he's a really nice guy.  I haven't seen him in the criminal arena all that often, but he is a pretty young attorney.  Environmental isn't exactly a hotbed of activity within the Office.  I don't really see this creating too much controversy in the near future.

Elizabeth Eakin -- Data Analysis Director  I don't believe that I know Elizabeth Eakin or what a Data Analysis Director does.  According to the State Bar, she's been licensed since 2012.

Sue Lovell- Governmental Affairs & Shekira Dennis -- Outreach Coordinator  I'm not familiar with these two staff members, but these positions appear to be more Administrative rather than legal.  I don't believe they are attorneys, unless I'm looking under the wrong names on the State Bar website.  Lovell has her own Wikipedia page and Dennis appears to be very involved in the Democratic Party.

And now we get to the trio of terrible decisions . . .

Jim Leitner -- Intake and Grand Jury Bureau Chief --  sigh.  Despite our brief and torrid Facebook friendship, I still am not a big fan of the idea of Leitner back at the D.A.'s Office.  My personal feelings aside, Jim was a giant disappointment to those of us who used to actually be fans of his prior to taking the role of 1st Assistant under Lykos.  Back in 2008, most who knew Jim thought he would be a voice of reason to the temperamental Lykos.  Unfortunately, he ended up becoming a wildly unpopular authoritarian who wielded his power at the office like a weapon.  While over time I've almost come to look at Leitner with amusement, there are many current and former Assistant District Attorneys who loathe him far worse than I ever did.

Although Ogg didn't place Jim at the head of the hierarchy, his position as Intake Chief has some big undertones on what is ultimately going to happen on the David Temple case, and it doesn't exactly bode well for the chances of a retrial.  Leitner has already gone on record as thinking that the capital murder warrant written by Dumb and Dumberer was a good one.

John Denholm -- Intake Shift Chief  Speaking of Dumb and Dumberer, the Ogg Administration made two additional poor decisions by bringing in the chief architect of that ridiculous warrant, John Denholm.  Denholm, who was last seen giving a less-than-enthralling lecture on body cameras at a CLE (which reminded me of this for some reason) will be taking the title of "Shift Chief."  I have no idea what that title means, but it would seem that he will be in charge of writing some warrants.  This also doesn't bode well for the retrial of David Temple, since Denholm, Leitner, and Steve Clappart all seem to think that a person claiming to have killed a dog is the exact same thing as an admission to Capital Murder.

This position is more than just a little concerning.  Denholm is an angry man who likes to retaliate when he is pissed off.  Yeah, let's put a slow-witted, angry man in charge of supervising all charges filed in Harris County.  What could possibly go wrong?

Steve Clappart -- Chief Investigator  Rounding out the Three Amigos of Bad Decision Making is our friend Steve Clappart, who makes his return to law enforcement as Chief Investigator for the Office.  Clappart continues to disappoint me on several levels, because I used to actually respect him and think of him as a friend.  Steve was the affiant on the notorious warrant that Denholm put him up to writing.  In the glowing article written about him and Denholm by Lisa Falkenberg, he bemoaned losing friends for his "courageous" stand on the case.

In reality Steve lost friends because he was playing both sides of the fence.  While signing off on a Capital Murder for a kid who allegedly (through double hearsay) claimed to have shot a dog, Clappart was also calling friends in law enforcement and telling them he was only pursuing the warrant because his boss, Jim Leitner, was making him do so.  At the end of the day, Steve appears to go where he's ordered and that is highly disappointing behavior from a cop I used to think so much better of.

The trio of Clappart, Denholm and Leitner coming in under the Ogg Administration is a pretty tell-tale sign about the likelihood of a Temple retrial, but I'll talk more about that in a later post.  As I've said before, and I'll say again, I do remain hopeful that the Ogg Administration wil be a good and successful one.

Wednesday, December 28, 2016

One of My Odder Facebook Friend Requests . . .


I had this pop up in my Facebook feed a few days before Christmas, unexpectedly.

It was Christmas Time, so I thought in the spirit of the season, I'd accept.

Alas, he unfriended me a few days later.

Such a tease, Jim.  Such a tease.

Wednesday, December 21, 2016

Chip Lewis's End of Year Party

Our friend, Chip Lewis, is hosting an End of Year Party for all Harris County District Attorney Alumni, as well as the survivors all present employees.

The party is on Thursday, December 29th at 5:00 p.m. at Gloria's (2616 Louisiana) in Midtown.  Cocktails and appetizers will be provided.

To quote Chip:

Bring loved ones and friends.  Everyone deserves a better ending to 2016.

Hope to see you all there.

Tuesday, December 20, 2016

Victims, Phone Calls and Press Conferences

This morning, I was out driving around with my wife doing a little Christmas shopping when all of a sudden my phone started blowing up with repeated text messages from people saying that Harris County District Attorney-Elect Kim Ogg was talking about this blog in a press conference.

I wasn't able to watch the full conference until I got back home from running errands.  The gist of what was being reported was that Ogg was accusing prosecutors Justin Keiter, Nick Socias, and Gretchen Flader of contacting victims of crime in an attempt to create an atmosphere of distrust with the incoming administration.  Noting that all three prosecutors were not invited back under her administration,  Ogg stated that the actions were unprofessional, possibly criminal, and that she would be doing a full investigation when she took Office on January 1st.

So, when I got home I had a chance to watch the press conference, and I found some things to be somewhat strange.

The first instance that Ogg spoke of dealt with the victim in a case who was allegedly unsatisfied with how the case had been resolved.  Ogg noted that the victim had complained to Keiter, who told her to contact Ogg with any complaints.

Well, um, okay.  So, we've called a press conference to say that a victim of a crime wasn't happy with how a case turned out?  Not to be insensitive, but that happens some times.  So, that victim calls the prosecutor (who has eleven days left to work as a prosecutor) and he tells her that she will have to take it up with the incoming administration because he won't be there?

Even if you assume the worst of Keiter, and let's just say for the sake of the argument that he delivered this in an unprofessional manner, I fail to see something that would merit an investigation.  Victims routinely get upset when they don't agree with how a case is disposed of -- I once dealt with an angry mother who wanted Attempted Murder charges filed against a man who threw a rock at her son's car when he was speeding through the man's neighborhood -- and they will be more than happy to complain and complain as long as someone is listening.  If Keiter punted on listening to it and told the victim to take it up with the Ogg Administration, that would be understandable under the circumstances.

But Kim followed up her initial statement by saying that Keiter posted things on Facebook and on this blog about notifying families of murder victims that he wouldn't be their prosecutor anymore.  That's just false information.  Keiter isn't on Facebook and to my knowledge, he has never posted on this blog.  He certainly hasn't since being terminated.

The second instance that Ogg described was a call from the mother of a crime victim who had gotten a robocall from VINE telling her that the Defendant on the case had left the Harris County Jail.  Ogg wasn't specific about whether or not the release was due to the Defendant making bond or leaving custody for other reasons.  Ogg stated that the prosecutor on that case was Nick Socias, and he had not called the victim to let her know about the Defendant leaving custody.

Um, okay, so Keiter says something to a victim and Ogg is angry and now Socias doesn't say something to a victim and Ogg is angry.  I'm failing to see exactly what Ogg's gripe with Socias is here.  She never even clarifies what is going on with the case.

The third instance is from the mother of a capital murder victim who said she had received an "anonymous phone call" from someone claiming to be a prosecutor who made "allegations that were political in nature and also gave her misinformation about the status of her case."  Ogg states that she asked the woman who was handling the case and she said, "Gretchen Fladen [sic]."  Ogg then goes on to point out that Socias and Flader are "domestic partners."

Still scratching my head on why we are having a press conference here.

So, the mother of the victim gets an anonymous call -- not alleged to have been from Flader -- from someone who made some political comments and gave some misinformation and we are now blasting Gretchen in a press conference?  And you totally busted Gretchen and Nick to their parents if they didn't know those two were seeing each other!

In a Houston Press article written by Meagan Flynn, Flader described the interaction with the victim's mother:
In an email to the Press, Flader admitted to calling the mother, whom she said she communicates with frequently about the death penalty capital murder case she's been handling for the past few years. Flader said she called to tell the mother that both she and the other prosecutor on the case had been fired and new prosecutors would replace them. The mother, Flader said, was concerned about whether this would affect the prosecution's decision to seek the death penalty.
“I told her that I did not know, but that it was a possibility,” Flader said. “She asked who she needed to talk to and I told her that Kim Ogg is the new DA and would make the decisions. I told her I was sorry and wished her luck.” 
You know what's wrong with that?  Nothing.

Ogg stated that all of this was possibly illegal.  I fail to see how.  It doesn't sound like Ogg is particularly clear on what happened.  She even wrote a letter to First Assistant Belinda Hill demanding that "all records [personal cell phone, personal and work email, etc.] from each person involved are immediately preserved so that a full investigation can be undertaken."

Okaaaaaaay, so you want Judge Hill to confiscate Justin, Gretchen, and Nick's cell phones and personal e-mails because they did . . .  what, exactly?

In follow up questions, Kim backpedals and says "I'm not making a direct accusation . . . " and "I will not draw any conclusions about their participation or their guilt until I've had a chance to see the evidence."

What?  You called a press conference and then didn't make an accusation?  It sure as hell sounded like an accusation to me.  Sounded like three of them, in fact.  And then you followed it up with saying you haven't drawn any conclusions?!

You just held a freaking press conference.  You might as well have wrapped up with, "I'm just kidding!"

Look, I understand that the transition from Devon Anderson to your Administration isn't going so smoothly.  I agree with you that Devon shouldn't have stated that public safety was endangered by firing 38 prosecutors on Friday.  Don't get me wrong, I don't agree with you firing all of those people, but I don't see a riot ensuing.    I also agree with you that Devon should meet with you.  I get that she's probably still mad about some stuff said on the campaign trail, but she should meet with you.

Kim, I really am sincere when I say that I want your Administration to succeed, but work with me, here.  You can't fire that many people and expect them to love you for it.  They are entitled to do a little grumbling, but you are now calling that grumbling "criminal" without anything at all to indicate that.

You can't go around threatening criminal charges every time somebody pisses you off.

You can do better.  You should do better.  You must do better.

And you owe Gretchen, Nick and Justin an apology for this press conference.

The Buzbee Dismissal

Okay, so the CJC has been a pretty big hotbed of activity over the past 24 hours.  I will talk about Kim Ogg's press conference in a post after this one, but I wanted to begin with discussing the rather murky circumstances surrounding the dismissal of prominent attorney Tony Buzbee's DWI case yesterday.

First off, in the interest of full disclosure, Buzbee's attorneys, Paul Doyle and Allen Tanner, are both good attorneys and good friends of mine.  I'm not going to talk about the facts behind Buzbee's arrest, because I don't know the facts. I will say, however,  that if you are a defense attorney who gets a dismissal for your client, then you've done a good job for your client.  Period.

The second thing I will say is that Brian Rogers did a very good write up about the facts of the case.  Brian and I aren't friends, but he did do a nice job with a thorough article here that seems to cover the interesting aspects of politics and law on this case.

So, at the risk of regurgitating Brian's article, here's the short version.

1.  Pre-trial diversions on DWI cases are not uncommon if the cases meet certain criteria (i.e., First Offender, Blood Alcohol Content under .15, No Accident involved).

2.  Those pre-trial diversions typically last 1 year and have specified conditions.

3.  Those 1 year terms are rarely (if ever) terminated early.

4.  They require an acknowledgement of guilt and a signed contract with the District Attorney's Office, but no plea in front of a judge.

5.  If they are successfully completed, the case is dismissed.

6.  Judge Bill Harmon of the County Court at Law # 2 of Harris County does not allow these agreements to take place in his court.

7.  Tony Buzbee was in Judge Harmon's court.

8.  Tony Buzbee was on a pre-trial diversion in Judge Harmon's Court.

9.  Tony Buzbee got a dismissal signed by Devon Anderson that stated he had completed the terms of a pre-trial diversion.

It is mildly complicated, but if you look closely, these 9 statements cannot all be true in the case of Tony Buzbee.

The current insinuation coming from the Defense Bar (and others who aren't fans of Devon Anderson) is that Buzbee was never, in fact, on a pre-trial diversion.  The argument is that Devon just simply dismissed his case as a favor to somebody, and claimed her rationale was that he had completed the pre-trial diversion.  If that is the case, the argument continues, she signed off on a government document that wasn't true.

And that could be considered to be a crime.

Whatever the truth of the matter behind the Buzbee dismissal, it sure as hell looks bad and looks like political favoritism being played.

The fact that Devon signed off on the dismissal herself is not all that important, in my opinion.  Whether it was done with clean or dirty hands, Devon was making sure that the buck stopped with her.

If Buzbee was, in fact, on a pre-trial diversion, then terminating it early would not necessarily be the biggest scandal on earth.  Sure, there is some preferential treatment there, but at the end of the day, a pre-trial diversion contract is between the D.A.'s Office and the accused.  If the D.A. wants to modify it to the Defendant's benefit, then the only person who would complain would be ---- well, all of the D.A.'s enemies.  I can recall a certain Houston Texans wide receiver (and Super Bowl MVP) that had his DIVERT program terminated a little early under Pat Lykos, I believe.

The fact that it is a contract between the D.A. and the Defendant also means that if Devon wanted to give Buzbee a better contract than every other Defendant in Harris County got, that would be okay, too.  It looks terrible and sketchy as hell, but it still wouldn't be illegal.  For instance, if she wrote up a Pre-Trial Diversion Contract that said, "The Defendant shall not go on a drunk bender for the next three days, and if he complies with this rule,  the case shall be dismissed," that would work.

The only way Devon would have potentially broken the law would be if no such agreement existed whatsoever and she wrote down in a court document dismissing the case.

I highly doubt that she would be so foolish.

But I've been wrong before.

Sunday, December 18, 2016

Wayne Weighs In

In response to my post yesterday about Bloody Friday, Kim Ogg spokesperson Wayne Dolcefino took issue with me insinuating that the Ogg Administration had alerted the media that the mass firings were taking place at noon on Friday.

He responded with a lengthy comment that clearly missed the conciliatory elements of my post and labeled the insinuation of the Ogg team alerting the media as a "Cheap Shot."

As it turns out, he was telling the truth.

Although not denying that the firings by e-mail had been announced with 24 hours notice, and that they were done without face-to-face interaction, the Ogg Administration did not, in fact, notify the media.

I mean, they did totally give them 24 hours to figure out what was going to happen, but that's just semantics.

Local media picked up on some Facebook chatter from different people at the CJC (including me) and figured out what was going on.  That's why they posted.

So, Dolcefino was telling the truth when he stated that they weren't the actual ones who called the media.

As to whether or not it was a "cheap shot" by me, I'll let y'all decide that for yourselves.

Saturday, December 17, 2016

Bloody Friday

True confession time.

I voted for Kim Ogg.

It wasn't an easy decision.  I had a few reservations about some of Kim's portrayals to the media on things she knew weren't exactly accurate when it came to the law.  Kim is a former Chief Prosecutor under Johnny Holmes and she knew better.  She did a lot of spinning on things that were contrary to law in order to get some votes.

I like Devon Anderson and I adored Mike.  Not voting for her bothered me tremendously.  It wasn't because I bought into the hype and spin of the Planned Parenthood or "Jailed Rape Victim" stories or that I thought she was a bad person.

But at the end of the day, things Devon said on the campaign trail led me to believe that there was too much of an "Us versus Them" mentality that she fostered at the D.A.'s Office.  This culminated in her saying something to the effect of "We all know there is nothing a defense attorney won't say to get a case reversed" during the one D.A. debate.  That implication that my side of the courtroom was a profession filled with nothing but wholesale liars didn't sit well with me, and ultimately, I realized that a vote for Devon was really starting to feel like a vote against myself -- and all of my clients.

I made my final decision to vote for Kim Ogg because I agreed with her overall outlook on the Criminal Justice System.  I know this is going to lead to backlash from some of my law enforcement friends, but I agree with not filing crack pipe cases as felonies.  I agreed with Lykos when she stopped filing them, and I agree with Kim for saying she won't file them.  I feel the same way about her marijuana policies.  When she said that our drug policies were labeling a large segment of our community as criminals who otherwise wouldn't be, I agreed with her.

I also had this underlying belief that Kim Ogg was no Pat Lykos.  I thought Kim had a better understanding of the men and women that work at the Harris County District Attorney's Office and that she lacked Lykos' mean and vindictive streak.  I thought that Kim would make good and practical decisions when it came to whom she kept and whom she didn't.

Wrong. Wrong. Wrong. Wrong.

Yesterday, Kim Ogg stunned pretty much everyone in the CJC building by firing not renewing the contracts of 38 Assistant District Attorneys under her Administration.  Yes, it is absolutely true that this happens with every Administration, but the numbers are usually relatively small.  I believe that my firing class was right around 10 people (and I was proudly at the head of that class).  Kim basically quadrupled that number.

And the way she went about it was pretty damn tasteless.  It was certainly a cowardly way to end the careers of 38 people who had devoted years (and in many cases, decades) to the D.A.'s Office.

Kim had let it be known on Thursday that her Administration would send out an e-mail at noon on Friday and each prosecutor would get one.  That e-mail would tell the prosecutor whether they would be welcome in the new Administration.  No personal interaction.  I mean, damn, even I got the honor of being personally fired by Jim Leitner and Roger Bridgwater.  I even shook old Roger's hand!

Not only was the Death by Email plan a disturbing indication that the Ogg Administration is going to be doing some things that they can't quite look you in the eye about, they weren't even punctual about it.  Prosecutors had to sit at their desks past noon, waiting.  Waiting to see if they needed to pack up their home away from home and start a completely knew career path in life -- in the next two weeks.

And then there was the media.

Cameras were posted at the D.A.'s Office and in front of the building.  Someone -- gee, I wonder who -- had managed to stage 38 people getting fired at Christmas time into a media event.

Nice.

So, let's talk about the firings themselves.

As I mentioned above, a certain amount of firings are to be expected, and they usually begin at the Bureau Chief Level.  For those unfamiliar with the hierarchy of the Office, there is the elected D.A., followed by the First Assistant, followed by the Bureau Chiefs.  They are the equivalent of a President's Cabinet, and like in a Presidency, it is to be expected that the District Attorney would want her own handpicked Cabinet.  This is not to say that any of the terminated Bureau Chiefs were bad prosecutors or deserved termination, but there is a certain risk involved when one rises so high in the Office.

If I'm not mistaken, all of the Bureau Chiefs were not invited to return.

The next step below Bureau Chiefs are the Division Chiefs.  Division Chiefs are most definitely senior prosecutors and comprise the most talented trial attorneys in the Office.  I believe that Kim elected not to renew all but three of the Division chiefs.

Unlike the Bureau Chiefs, the Division Chiefs aren't quite as easily described as being the normal part of any Administration Change.  Although they were certainly senior, the job description of a Division Chief is much more of a leader in the field.  For instance, all Death Penalty Capital cases require a Division Chief to be sitting on the case, along with a District Court chief.  They embody the battle-tested prosecutor who knows how to try complex and difficult cases.  Most of them all started their career under Johnny Holmes and continued through all of the successive administrations, including Lykos.

I'm not exactly sure who told Kim that firing her most talented and experienced prosecutors was in the best interest of the Office.

After the firings of the Division Chiefs, it becomes a bit scattershot.  There are several District Court Chiefs (more experience) and a couple of Felony Twos.  I may be mistaken, but I don't think I saw anyone below the Felony Two level on Kim's list.

Some of the people on the below Division Chief level were not surprising terminations.  Rightfully or wrongfully, they were on the media radar, and thus the New Administration's radar.   Most of these firings were disappointingly based more on hype than substance.  My biggest concern about Kim becoming the District Attorney was that she would govern her Office with more attention to perception than reality.  That was clearly the case on many of the fires.

The most troubling of the firings, however, fall under the category of "Who the hell did they piss off?"  These were the fires that left almost everyone in the Criminal Justice community scratching their heads and wondering why these seemingly good, ethical, and well-liked prosecutors weren't continuing in their jobs.  I'm not going to name any of the prosecutors who were terminated because I don't want this popping up when future employers or clients do an internet search of their names.

In the immediate aftermath of the D.A. election, I had written this post and told prosecutors not to worry about the jackasses who walked around bragging of their "wish lists" of firings.  Apparently, those wish lists were a little more prevalent than I would have imagined.

After having a day to talk about these particular terminations, there seemed to be a developing pattern of these prosecutors having beefs with the dynamic duo of Roger Bridgwater and Jim Leitner -- with a little bit of Dick DeGuerin's influence tossed in for good measure.  There are some early indications of another former prosecutor who wielded some influence, too, but I haven't confirmed that yet.  However, let's just say that if he is returning under the Ogg Administration, her call for less aggressive "win-at-all-costs" prosecuting will be regarded as a complete and total joke.

It won't be surprising if Leitner and Bridgwater return to the D.A.'s Office, or, at a minimum, have Kim Ogg's ear.  Those two die hard Republicans have made no secret about being on Team Ogg ever since Lykos got decimated in the 2012 primary by Mike Anderson.  I hope that Kim Ogg remembers that as much as I disliked Bridgwater and Leitner on a personal level, I looked like a member of their fan club compared to the rank and file that worked under them.  They were widely regarded as petty tyrants and bullies by the Assistant D.A.'s.

If Leitner and Bridgwater are, in fact, returning to the D.A.'s Office, I don't know what to say other than Welcome back!  This blog and I have missed you.

All in all, the Ogg Administration got off to a bad start yesterday.  If her first goal was to decimate morale, she certainly accomplished that.  She seemed to take no notice of the idea that when you become the elected official over any government agency, you want people to be rooting for you -- and that begins with the people who work for you.  Although some of her terminations were justified, there were many that were not.  Her message seems to be taken out of the Pat Lykos Playbook, except it is making Lykos look tame by comparison.

I still have hope that Kim can become a good D.A. if she actually starts governing with less attention to perception and more to reality.  Kim should remember that Lykos, Leitner and Bridgwater basically governed a running four year mutiny before getting blasted out of Office.  It was a miserable situation for everyone involved.  Miserable situations don't attract good personnel and without good personnel, you cannot have a good Office.

That's a lesson that the Ogg Administration is going to have to learn the hard way, apparently.

Sunday, December 11, 2016

Rick Johnson

I've been in trial for the past week, so I'm very late in posting about the passing of Rick Johnson.  As sad as I was to learn of Rick's passing, I'm glad that the Harris County legal community and the local media took the opportunity to let him know how much we all loved him.

Despite the tremendous amount of media attention that Rick got in his last days, I wanted to share just a few words of remembrance about him.

I don't remember exactly when Rick started showing up outside of the CJC.  It seems like it was shortly after the D.A.'s Office and the courts moved back into 1201 Franklin after being displaced in the wake of Tropical Storm Allison, which would have been around 2002 or 2003, I think.  The news reports about him said he had been a fixture outside of the CJC for ten years, but it seems like longer than that to me, for some reason.

Courthouses tend to attract a lot of people asking for money (besides the lawyers).  Over the years, there have been plenty of familiar faces.  Some were quiet and passive.  Some could be downright aggressive.  Rick was different then all of them because he made a point to let people know that he wasn't begging -- he was selling something.

When I first met Rick, he was selling tokens.

Nobody seemed to know what the tokens were for, but he was always out there selling them.  He was friendly and smiling as person after person politely declined buying a token.  Most of us knew him as "Token Man" for the first few years of knowing him.

Around Christmas time, a few years after he had made his first appearance, "Token Man" handed out Christmas cards to people walking up to the courthouse.  They weren't cards so much as black and white copies of a Christmas card that he had signed with the name "Rick (Token Man)".  Everyone I know called him by his proper name after that.

He upgraded his merchandise as time went by -- moving up to umbrellas and then candy.  Nobody that I know of ever referred to him as "Candyman" like the news media has called him.  He was Rick. The following Christmas, he had upgraded his Christmas cards to actual cards that he had signed.  Clearly, business had been good that year.

I'm not sure when exactly he went full-scale into the candy business, but he had adapted an old newspaper stand to be his store.  He was there every morning with a good word to everyone who passed by.  He would hold open the mail box slot for us when we needed to drop off something and he helped people parking at the meters figure out how to do it right.  His morning greeting of a fist bump was how we started our day.

He wasn't a high pressure salesman.  "Come get you some," was pretty much his sales pitch.  When you declined, he always responded with "That's alright, I still love you" in his raspy, familiar voice.  If you hadn't bought anything in a while, he would let you know that it had been a long time since you had bought anything.  He was such a nice man, that you felt bad enough to buy something on the spot.

He seemed to know quite a bit of what was going on in the building.  Somehow, he knew when I was working on Cold Justice, and he would lobby for me to get him on the show.  Every once in a while, he would pop in at Char Bar when I was there.  He wouldn't drink anything, but he would come in and just chat for a bit before heading off to wherever he was headed.  I always enjoyed those little talks.

Whenever I brought my oldest son to the CJC, Rick always handed him a bag of M&Ms without missing a beat.

"You can get me later," he would tell me about the payment.  And I would -- with a self-imposed markup on the asking price.  When I told my son about Rick's passing, he was genuinely sad about the loss of a man who was always so kind to him.

There was something about Rick that always reminded me of Santa Claus.  His build, his beard, and the twinkle in his eye just invoked that image to me.  Even seeing him in the last few months, skinny and leaning against his truck for support, there was still that twinkle in his exhausted eyes.

Whenever a person passes away, they leave a void.  The void that Rick leaves with his passing is tremendous.  So many of us come in and out of that building, and he knew (and greeted) us all.  The mornings just seem off without him there.  As sad as I am about his passing, I'm so glad that we all had the chance to let him know how much we loved him and how much he made a dark place brighter.

Rick Johnson was one of those people (and reasons) that make the CJC such a quirky and memorable place.  He is a character that will long be remembered.  We will all miss him very much.

Thursday, November 17, 2016

GUEST POST: Trepidation and Chronophobia …

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

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

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

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

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

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


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

Wednesday, November 9, 2016

What Happens Now?

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

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

And then the morning after arrived.

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

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

And then there were the jackasses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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