Thursday, October 19, 2017

Rethinking Indigent Defense

Tomorrow, the Indigent Defense Committee of the Board of Criminal District Court Judges are having an open meeting to discuss potential changes for "reforming appointed attorney fees."  This is huge news.  Mainly, because I had no idea that there was an Indigent Defense Committee of the Board of Criminal District Court Judges.

The meeting is at 2 p.m. in the Ceremonial Courtroom of the Civil Courthouse on the 17th floor.  Sadly, I will not be able to attend due to a prior commitment, but I did want to share a few thoughts that I had about the way things are currently running in a post-Harvey world.

First, a little background.

The way payment works for attorneys who represent indigent defendants depends on what degree of crime the indigent client is charged with.  Those attorneys representing defendants charged with State Jail and 3rd Degree Felonies get paid $125 for every court setting they appear for, and $40 an hour for all out of court work.  Second degree felony cases merit a $175 fee for court settings with a $60 an hour payment for out of court hours.  First degree felonies get $225 for a court setting and $85 for out of court hours.

The scuttlebutt is the the Indigent Defense Committee (IDC) is strongly leaning toward increasing the pay schedule for out of court hours, but eliminating the flat fee for court appearances.  That is not an unheard of proposition.  It is my understanding that Ft. Bend and Galveston counties do things this way, although I don't know if that is accurate because I don't handle appointed cases outside of Harris County.

My guess is that if this truly is the plan the IDC is looking at, it will meet with some resistance from those who take indigent appointments.  Appointed attorneys tend to like having those court settings because they obviously give larger payouts for less work.  For instance, an attorney can walk into a courtroom on a 3rd degree case, talk briefly with the prosecutor, sign a reset and leave in 20 minutes or less.  Under the current schedule, he or she would make $125.  If he or she was being paid on the hourly scale (at the current rate), he's get paid less than $20.

Just because the appointed attorneys won't be fans of the hourly basis, however, doesn't mean that it is necessarily a bad idea -- especially when it comes to "in custody" cases under the flood conditions.

Right now, things are getting relatively back to normal when it comes those Defendants who are out on bond.  Courts are rescheduling them at intervals similar to those before the flood.  Unfortunately, things are far from normal when it comes to the in custody cases.  Due to safety concerns, all court appearances for "in custody" defendants must be held at the jails.  The males have their appearances at the 701 N. San Jacinto facility while the females are at 1200 Baker Street.

To describe these "jail dockets" as chaotic is a massive understatement.  Due to jail personnel and space constraints, only two courts at a time may operate a jail docket.  Two have a morning shift and two have an afternoon shift.  To make matters utterly confusing, these dockets rotate every several days, so there is no set day of the week when an attorneys knows a certain court will be holding docket. 

The dockets are crowded.  The attorneys typically pool in the infamous Law Liberrry Library, down the hall from the rooms being used as "courtrooms.  In the Library, defense attorneys discuss the cases with prosecutors before stepping out and asking one of the bailiffs to bring an inmate to the courtroom for discussion.  Understandably, there is a backlog.  Only a handful of defendants can be brought out of the holding cells at a time, and the attorneys are not allowed to speak to them anywhere other than the makeshift "courtroom."   Some attorneys wait for hours to talk to their clients.

Attorney Vic Wisner works his triceps in the Law Library while waiting to 
talk to his client.  NOTE:  This was taken before the bookshelves were all 
covered with tarps due to a mold outbreak.

In my opinion, the idea of having regular dockets for in custody defendants at the jail is a foolish waste of time, unless there is a strong indication that a case is going to plead out.  Standing around, waiting to talk to a client, only to reset him is not a productive use of time, nor space.  Unfortunately, due to the bigger payout of a setting fee, attorneys who represent indigent defendants have no financial incentive to reschedule these settings.  Regardless of whether or not anything is accomplished, a setting fee is a setting fee -- even if you are just signing a reset.

If the IDC does change to the hourly fee structure, attorneys representing indigent defendants are more likely to reschedule these non-productive settings, because they will make the same amount of money by working on the case outside of the courtroom.  They can do a jail visit, some legal research, witness interviews, or something that might actually help resolve the case.  Unless a defendant needs to see a judge, there is almost no reason to have them at these jail dockets.

One suggestion, that I do have is that the District Courts have actual settings for these in custody defendants in the courtrooms without the Defendants being thereJudge Velasquez recently scheduled one of my in custody cases on her docket in the 183rd District Court without having my client present and it was extremely productive.  It was not a hectic pace.  I actually had a chance to speak to the prosecutor on my case and go over some evidence that I wanted him to look at.  He had the time to make note of what I showed him and write down some specific discovery requests I had.  

I relayed everything that happened in court to my client later that day, and he was happy to hear about it.  That meeting with the prosecutor never could have happened in one of the jail dockets.  I wish more courts would do this.  If the meeting results in an agreement that resolves the case, it can be set on the next available plea docket.

Back to the fee schedule topic, I do believe that the hourly system will encourage attorneys to do more work out of court to resolve their cases.  It will also discourage attorneys from taking on too many cases for the sole purpose of increasing the number of their appearance fees.

But that may also be a double-edged sword.  

Attorneys who no longer have a financial incentive to increase their court appearances will spend more time in the office, working on the cases that they already have.  As a result, I predict that attorneys will put their names in for new appointments less frequently.  If the money paid for working from the comfort of my office is the same as going to that God-forsaken jail docket, I know which one I would choose.

So, basically, I see pros and cons to changing the payment system.

But, I do hope that the powers that be will consider doing more cases like the 183rd.

Friday, October 6, 2017

Just a Suggestion . . .

Dear D.A. Ogg,

Would you please please please make an office roster that is up-to-date and available on the Harris County D.A. Website?  Those of us in the Defense Bar are doing what we can to reach out to prosecutors off docket, but the people keep moving around.

A nice page added to the website that just stays current with everyone's assignment would be super duper helpful.  If you add e-mail hyperlinks to everyone's name, that would be super cool, too, but I'm not being greedy.

If you could get this up and running as soon as possible, I will be your best friend.

Thanks in advance,
Murray Newman

Wednesday, September 27, 2017

Fun with Securus

In the wake of Hurricane Harvey, I sat down and wrote letters to every client that I was representing who was incarcerated in the Harris County Jail.  In my letter, I gave them a brief summary of the current situation with the courthouses, told them of their current court date setting, and I told them that those dates were highly likely to change in the days to come.  I told my clients that due to limited space, there was going to be little opportunity to talk to them during court settings.  It would be far more practical to discuss their cases outside of court, and if it did not appear that anything would be accomplished during an upcoming court setting, we should reset it.  There was no need for them to be inconvenienced by being brought to court, just to sign a reset and leave.

In the letter, I also reminded them of my policy of accepting collecting phone calls from my clients.  I gave them my phone number as a reminder and asked them all to call me prior to their next scheduled court date.

"Creepy" stock photo of me on the phone.  Published in tribute to my 
social media consultant who really really hates this picture.

And it worked.  My phone started ringing off the hook with collect phone calls, provided by Securus, from my clients.  Sure, it was expensive -- $14.99 for up to 20 minutes, but it was more convenient (not to mention cost effective) than driving to the jail, going through security, and waiting for an attorney booth to open.  I could talk to them about evidentiary issues, plea offers, and scheduling.  Pretty much all of my clients seemed very happy to be able to reach me by phone.

The pre-recorded message that began every call started with something along the lines of this:
You are receiving a collect call from [INMATE'S NAME], an inmate in the Harris County Jail . . . 
It then went on to state the price of the call and how long we could talk, and let me hit a button to bill the credit card that I already had on file. As soon as I was done hitting all the requisite buttons, I was connected to my client.  We could talk court settings and logistical issues, but I cautioned my clients to not discuss the facts of the case over the phone.  Securus doesn't have the best record for honoring that whole "attorney/client privilege" thingy that we all find to be so important.

For the first few weeks after Harvey, things were going pretty smoothly.  Almost all of the clients that I had on imminent dockets were calling.  Communication was good.  I had offers to convey from prosecutors.  If it looked like the case could work out, we put it on a plea docket.  If not, we took it off the docket.  The communication helped get some people out of jail and home.  

That's a good thing.

Two days ago, I got a call from the Harris County Jail, and I answered it.  This time, the message was different.
You are receiving a call from [INMATE'S NAME], an inmate in the Harris County Jail.  If you would like to set up a pre-paid account for this inmate, please press 1.
Well, um, paying for an inmate to talk to me, his or her attorney, is great.  Setting up an account for them to talk to whoever they want to . . . not so much.  Quite frankly, in many cases, enabling a client to talk to non-lawyers is very detrimental to that client's case.  Despite recorded messages warning inmates that calls are recorded and monitored, they still go right ahead and say things that screw up their cases on a regular basis.

But I digress.

Initially, I assumed that the inmate must be dialing out wrong, so I hung up the phone to see what the next call said.  The requirements to set up a pre-paid account persisted.  Eventually, I pressed 1 to see what setting up a pre-paid account actually entailed. I was connected to an actual real person to walk me through it.

I asked the lady on the phone why I could no longer accept collect calls.  I told her I didn't want to set individual slush funds for my clients to call whomever they pleased.  She told me that I had the option of setting up a fund for calls just to me, or I could set up a fund on a per inmate basis.  She said that I must have received "too many collect calls" for a time period and that was why I was being required to set up a fund.

Wait.  What?  I was receiving "too many collect calls"?  Says who?  I'm pretty sure they all went on my office credit card, and the good folks at Securus were being paid what was due.  If anyone had a right to complain about too many collect calls, surely that would be me, right?  She mumbled something about company policy and said that a pre-paid account for me "might" save me money.

Uh huh.   So, I told her that I would agree to set up a pre-paid account for calls to me.  And that's when things got fun.

When I gave her my office number, she told me that number was already on file with another account so I would be unable to set up a pre-paid account.  What's the name of the account that has that number? I asked.  She said she couldn't tell me because it was private.  I assured her that my office number had belonged to me and only me for eight years now.  She told me that I would need to provide proof of my phone number by faxing them a copy of my phone bill in my name.

I told her I would do that immediately and asked her how long that would take.  She told me at least 48 hours.  Securus would "investigate" why someone else would set up an account in my name.

"So for the next two days, my clients can't call me from the jail?"

"No."

"You can't switch back to letting them call me collect?"

"No."

"So, they're just screwed?"

"Until we can investigate and determine that you are the correct number and figure out what happens, we cannot set up an account, sir."

So, basically, I have a number of clients that can't reach me by phone, despite the fact that I sent them all letters instructing them to call me.   I have no doubt that the other account that Securus has linked my phone number to was a mistake made by them. I called Securus this afternoon to make sure that they had received my faxed telephone bill.  The question clearly annoyed the lady who answered the phone.  Faxes go to another department, she said.  The issue would be resolved in 48 hours at the earliest.  She couldn't provide me with any additional information.

In the time that it has taken me to write this post, my office phone has rung with calls from the Harris County Jail no fewer than twenty times -- all of them are calls that I requested, but can't accept. It is frustrating and it's embarrassing.

But Securus is the only game in town.  They have a contract with the jail as they do in many other counties and states across the country.  If you want to use the phone from jail, you gotta go through them.  In doing some background research on Securus, I stumbled across this article, published just two days ago.  Apparently Securus was recently purchased by the owner of the Detroit Pistons.  That's interesting.

What's more interesting were these two paragraphs:
The election of Donald Trump has already given an economic boost to those profiting from mass incarceration. The stock prices of the two biggest private prison builders -- CoreCivic (formerly Corrections Corporation of America) and GEO Group -- doubled after Trump took office.
Companies that charge for expensive phone calls from prisons and jails also won big after Trump's victory. One of the president's first appointments placed Ajit Pai at the helm of the Federal Communications Commission (FCC), who promptly rolled back the agency's 2015 decision to regulate the prison phone industry. The companies hailed it as a victory.
An incarcerated inmate's inability to reach his lawyer by phone may not seem like that big of a deal to those not directly affected by it.  Yes, I'm aware that they can still write me and I can go visit them.  But there is something so fundamentally flawed about a private company not only having the ability to charge exorbitant amounts of money for phone calls between an attorney and a client, but to stop those calls altogether.

It is a sad day when the 6th Amendment gets trampled on -- not by a judge, a prosecutor, or police officer -- but by a price-gouging private company handed a monopoly as part of the Prison Industrial Complex.

Jury Assembly Room, We Hardly Knew Ye

I was kind of surprised to read that the powers that be in Harris County have already decided that the (relatively new) Harris County Jury Assembly Room cannot be salvaged.


Don't get me wrong, I had no doubt that the building got severely damaged in the flooding from Hurricane Harvey.  The geniuses that decided to put a major facility underground in an area that flooded during Tropical Storm Allison basically drew up the plans for the State's largest in-ground jacuzzi. 

I'm not surprised at all to learn that the building is a total loss.  I'm just surprised that Harris County is acknowledging the building's lack of salvageability so quickly -- throwing away a 6-year-old structure that cost $13 million is a bitter pill to swallow. 

My hope is that while the County is in such an "admitting-we-screwed-up" mood, they might turn their attention to the embattled Harris County Criminal Justice Center.   Under optimal conditions, the building is terrible -- narrow hallways leading to elevators that sporadically work.  No escalators or public stairwells.  It was shut down for a year after Tropical Storm Allison in 2001 after only being occupied since November 1999.  

But the damage to the building from Allison appears to be nothing compared to what happened in the CJC during Harvey.  Not only did it flood, apparently there was some mechanism in place that caused pipes to supercool quickly and subsequently burst, leaving raw sewage throughout the building across multiple floors.  

Now, I'm not an architect or builder.  Maybe there is some reason why buildings need mechanisms to supercool things.  I don't know what that reason might be, unless it is to freeze Rebel Scum in carbonite before having Boba Fett transport them to Jabba the Hutt.

Whatever the reason, the CJC is now, literally, a shit show.  And it's been a shit show since the day it was opened.

It's time to start over.  Harris County should take some notes from the Ft. Bend Criminal Justice Center and create a shorter and wider courthouse that is more conducive to having escalators and stairways for people to reach the courts.  The elevator system at Harris County CJC is grossly inefficient and dangerous.  Angry (and sometimes violent) people are scrambling into small places to make it to court on time.  It is truly astounding to me that no one has ever been beaten to death one morning.  

The CJC needs to be completely scrapped and started over.  Demolish the damn thing and spread the new construction across the site of 1201 Franklin and 1301 Franklin (the old jail).  Hell, if you hold a $100-a-ticket raffle for attorneys to see who gets to press the demolition button on the CJC, you might be able to pay for the whole thing outright.  There is nobody that comes into that building, from prosecutor to judge to defendant, that doesn't hate it.  

If Harris County can justify scrapping the Jury Assembly Room after six years, then there is no excuse for not razing that 18-year-old hell hole of the CJC.

Monday, September 25, 2017

Larry Boucher

I was very saddened to learn earlier this week of the passing of retired Harris County District Attorney's Office Investigator Larry Boucher.


Although I never worked with Larry, I got to be friends with him when I was a pretty junior prosecutor with the Office.  He was an investigator in Special Crimes and he couldn't have been any nicer or more inclusive.  He loved the Office and he loved the people that he worked with.  He was the embodiment of the feeling of family and camaraderie that made working at that place so special.

After we both left the Office, he had a series of horrible health setbacks that he was way too young to be dealing with.  For a person as full of life as Boucher, it was heartbreaking to hear that he wasn't running full speed.  He had heart problems and won a hard-fought battle against them.  Sadly, it seemed that as soon as he finished that fight, he was diagnosed with an aggressive form of leukemia.

Larry's funeral will be on Wednesday, September 27th at 2:00 p.m. at the Klein Funeral Home at 9719 Wortham Blvd, Houston, TX 77065.  A celebration of his life will be hosted at Floyd's Cajun Seafood at 27126 NW Freeway, Cypress TX 77433.

Friday, September 22, 2017

Speaking of Parties . . . -- UPDATED WITH NEW DATE

There will be a party for everyone in the CJC community on Thursday, September 28th (NOW Friday, October 6th) from 5-8 p.m. at the Hotel Icon.

The idea was organized by Judge Mike Fields from County Court at Law #14 and is being sponsored by Chip Lewis and Paul Doyle.  Judge Fields said that he thought it would be a good opportunity for those of us to unwind after all of the confusing, hectic and frustrating events of the past couple of weeks.

Hope to see everyone there!

The D.A. Alumni Reunion Party -- UPDATED

Former Harris County Assistant District Attorney (as well as former U.S. Attorney for the Western District) Johnny Sutton is hosting an HCDA Alumni Party on Sunday, October 1st.  Former prosecutors, investigators, and support staff are all invited.  UPDATE:  I have confirmed that current prosecutors and staff are also welcome.

The party begins at 3:00 p.m. at the Armadillo Palace (5105 Kirby Drive, Houston, TX 77098) and there is a $25 cover charge to help offset costs.  The cover charge included two drinks and food.

Please RSVP in ASAP to jsutton@ashcroftlawfirm.com.

Monday, September 18, 2017

A Quick Compliment


Last Friday, I was walking out of the stairwell at the Civil Courthouse, just in time to see my friend and fellow defense attorney, Bryan Savoy, attempting to assist a young woman, who was clearly beginning to have a grand mal seizure.  As the seizure began, someone ran down the hall and grabbed the first person in uniform that they could find.  That person ended up being Sgt. K. Rodriguez of the Harris County Constable Office-Precinct Four.

Sgt. Rodriguez rushed to the young woman's aid, and took charge as we lowered her off of the bench where she had been sitting onto the floor.   Sgt. Rodriguez positioned her body over the young woman until the seizure stopped and then stayed over her, as the poor lady was sobbing and clearly distraught.  Sgt. Rodriguez was extremely calm and soothing as she told the young lady about her own family members with seizures and how it was nothing to embarrassed about.  She held the young woman and patted her reassuringly and told her that the paramedics were on the way.

Sgt. Rodriguez asked her if she normally had multiple seizures in a row, and the woman said that she did.  So Sgt. Rodriguez positioned herself to be ready for the next one, and encouraged the woman not to struggle against it, if she felt it coming on.  It seemed like we waited forever for EMS to arrive, but Rodriguez stayed with her the whole time, despite offers from court bailiffs to take over.  Throughout it, the woman kept her hand on Sgt. Rodriguez's leg, and kept patting it.

Just as the paramedics were arriving, the second seizure began, and Sgt. Rodriguez was prepared for it.  Although EMS helped by holding the young woman's arms, it was, again, Sgt. Rodriguez managing the woman's seizure.   The second seizure stopped just long enough to place the poor woman on a stretcher, before the third seizure started.  It was violent.  Her feet were strapped down, but the rest of her body was violently lifting off the stretcher.  Once again, Sgt. Rodriguez held her down.

As EMS took the young lady away, Rodriguez went with her.  She had never lost her composure or her compassion.  I know that I'm not adequately describing what a chaotic and potentially dangerous situation it was.

But Sgt. K. Rodriguez managed the situation like a superhero.  She deserves to be commended.

Sunday, September 17, 2017

The 2018 Election Field (So Far) [Updated-9/27/17]

[Note:  This list is very lengthy and subject to modification.  My intent is to write in more detail about individual races between now and the primary elections next year.  I welcome and encourage comments on the candidates with the knowledge that some comments will be kind while others won't be.  Criticisms are fair.  Below the belt insults aren't and they won't be published.]


With this week's announcement from the Governor's Office that Judge Kristin Guiney had been appointed to the long vacant 232nd District Court Bench, a much clearer picture of the 2018 courthouse races came into view.  I've been wanting to write about the upcoming election for a couple of months now, but the landscape has been shifting (especially on the Democratic side of the ballot).

The 2018 election is going to be interesting, because there is a very significant number of judges who have elected to retire rather than seek re-election.  Of the thirteen Criminal District Courts on the ballot in November 2018, five of the current judges are retiring.  Judges Jeanine Barr, Jan Krocker, Susan Brown, Denise Bradley, and Jim Wallace are not seeking re-election.  Of the fifteen (out of sixteen) County Courts  on the ballot, five are retiring.  Judges Margaret Harris, Larry Standley, Robin Brown, Don Smyth, and Jean Spradling are not running again.

I would venture a guess that 2018 will be a sweep of some sort.  In recent history, the Gubernatorial (or "non-Presidential") election years have favored the Republicans.   The enthusiasm that swept Dems into office with Obama in 2008 wasn't present for them in 2010 or 2014, leading to Republican sweeps.  But the anti-Trump sentiment in Harris County was huge in 2016 and the Democratic sweep in Harris County was marked by very large margins of victory.  I'm genuinely curious to see how much influence that anti-Trump sentiment will have in 2018. 

As of this writing (which is admittedly very early on), Republican Governor Greg Abbott has no clear Democratic challenger yet.  Additionally, Republican Harris County Judge Ed Emmett's popularity remains strong (especially in the wake of his handling of Hurricane Harvey).  These two at the top of the ballot are tremendous boosts to the Republican Judges down-ballot  The biggest factor will be how actively President Trump is infuriating Democrats and how much that translates into voter turnout.

That's just my amateur prediction for the 2018 Election.  If you want a much better, credible, and reasoned analysis, I (as always) strongly encourage you to check in with my friend, Charles Kuffner at Off the Kuff.

With all of that being said, let's look at the races as they currently stand.  For purposes of this post, I'm keeping the information about the candidates to a minimum.  We've got lots of time to talk about them in the days to come.

The 180th District Court
The race for the 180th District Court features incumbent Republican Judge Catherine Evans against Democratic challenger DaSean Jones.  Judge Evans has been on the bench since October of 2013 and had previously served as a long-time Assistant District Attorney in Harris County.  DaSean Jones is a local attorney who practices in several different fields and he is also an Army veteran.

The 182nd District Court
With the retirement of Judge Jeanine Barr, Republican Jesse McClure has announced his candidacy.  Jesse is a prosecutor for the Texas Department of Insurance, currently on assignment to the Harris County District Attorney's Office.  Jesse's Democratic opponent is Danilo "Danny" Lacayo.  Danny is a former-Harris County prosecutor and currently works for the Harris County Public Defenders Office.

The 183rd District Court
Incumbent Republican Judge Vanessa Velasquez is seeking re-election and faces Democratic challenger Chuck Silverman.  Judge Velasquez is a former Harris County Prosecutor who has been on the bench since 2005.  If I recall correctly, this is the first time she's drawn a challenger in recent memory.  That challenger, Chuck Silverman, is an attorney who does not practice criminal law.  I can't find a page for his campaign, but it appears that he routinely runs for both civil and criminal benches.

The 184th District Court
Longtime Republican Judge Jan Krocker has announced that she is not running again.  Former 337th Judge and former prosecutor, Renee Magee is running as the Republican candidate.  Renee worked for the Harris County D.A.'s Office for many years before being elected judge in 2012.  She was a victim of the 2016 Democratic sweep, and I'm not sure what she has been doing since leaving the bench.  The Democratic candidate is defense attorney Abigail Anastasio.  Abigail is a former prosecutor and current defense attorney.

The 185th District Court
Longtime Republican Judge Susan Brown also is retiring from her Bench next year.  Former 176th Judge, former prosecutor and current defense attorney, Stacey Bond is running as a Republican for the Bench.  Her Democratic opponent is former prosecutor and current criminal defense attorney, Jason Luong.  

The 208th District Court [Updated 9/22/17]
Incumbent Republican Judge Denise Collins is seeking re-election to the 208th District Court.  Judge Collins has served on the Bench since 1992.  Her Democratic challenger is an attorney named Anthony Troiani, who I have never heard of.  The only information that I can find on him is that he is a personal injury attorney out of Brownsville.  I'm not sure exactly how or why he is running for a Harris County Criminal bench.  In an update and a switch, it is my understanding that Democratic candidate Steven Goins has moved to from the contested race in the 232nd to run for the 208th and that Anthony Troiani is no longer seeking a bench in Harris County.

The 209th District Court
Harris County's longest serving Criminal District Court Judge is Republican incumbent Michael McSpadden.  Judge McSpadden has ben on the bench since 1982 and was a Harris County prosecutor prior to that.  The Democratic opponent is former prosecutor and current defense attorney Brian Warren.

The 228th District Court
Republican Incumbent Judge Marc Carter is running for re-election to the 228th District Court, where he has served since 2003.  In addition to being a retired officer in from the United States Army, he is also a former prosecutor and defense attorney.  The Democratic candidate is Woodrow Dixon, a longtime defense attorney.

The 230th District Court
Republican Incumbent Judge Brad Hart is running for re-election to the court where he has served since 2013.  He is a former longtime Harris County prosecutor.  His Democratic opponent is former-prosecutor and current defense attorney, Chris Morton.

The 232nd District Court [Updated 9/22/17]
Newly appointed Republican Judge Kristin Guiney arrives just in time to campaign for the upcoming election.  Judge Guiney is a former-prosecutor and defense attorney, who also previously served as Judge of the 179th District Court.  As of this writing, the Democrats have a contested race.  Former prosecutor and current defense attorney Josh Hill is running against defense attorney Steven Goins is now running unopposed for the Democratic nomination and Steven Goins has switched to the 208th District Court race.

248th District Court
Republican Incumbent Judge Katherine Cabaniss will be running for re-election for the bench that she has held since 2013.  Her opponent is Hilary Unger, a criminal defense attorney who also handles juvenile cases.

262nd District Court
I was caught off guard when I heard that Republican Judge Denise Bradley wasn't seeking re-election.  Retired prosecutor and current defense attorney Tammy Thomas is running as the Republican candidate.  Her Democratic opponent is Defense Attorney Lori Gray.

263rd District Court [Updated 9/22/17]
With longtime Republican Judge Jim Wallace deciding not to run again, former prosecutor and current defense attorney Justin Keiter will be running against former prosecutor and current defense attorney Emily (Munoz) Detoto. [Update] I now have it on reliable information that defense attorney Charles Johnson is also running for the 263rd Republican nomination.  Whoever wins will face Democratic opponent Amy Martin who is also a Houston-area defense attorney.

313th District Court (Juvenile)
Incumbent Republican Judge Glenn Devlin is running for re-election.  He has held his bench since 2010.  The Democratic race for this bench is contested with attorneys Natalia Oakes and Tracy Good both seeking the nomination.  Because I don't practice much juvenile law, I don't know anything about either of the Democratic candidates.  I could not find a website or Facebook page for Good, but I believe he ran for this bench in 2014, as well.

314th District Court (Juvenile)
Incumbent Republican Judge John Phillips is running for re-election to a bench that he has held since 2002.  His Democratic opponent is attorney Michelle Moore.  I don't know Ms. Moore, but, again, I believe that is attributable to me not practicing much juvenile law.  I have been told that she is a Chief Prosecutor with the Harris County Attorney's Office.

315th District Court (Juvenile)
Incumbent Republican Judge Mike Schneider is running for re-election for a bench that he has held since 2006.  His opponent is former prosecutor and current attorney with the Harris County Public Defenders' Office, Leah Shapiro.

Moving to the Misdemeanor side of things . . .

County Court at Law # 1
Incumbent Republican Judge Paula Goodhart is seeking re-election to the bench that she has held since 2010.  Prior to becoming a judge, she was a long-time prosecutor and defense attorney.  Her Democratic opponent is Alex Salgado, who is currently a narcotics prosecutor at the Ft. Bend District Attorney's Office.

County Court at Law # 2  [Updated 9/19/17]
Incumbent Republican Judge Bill Harmon is seeking re-election to the bench that he has held since 2007, but he will face a challenge in the Republican primary from defense attorney Lori Botello.  Prior to moving to County Court, he presided over the 178th District Court from 1984-2006.  He also served as both a prosecutor and a defense attorney.  His Democratic opponent is Harold Landreneau, who is a defense attorney and former head clerk for Justice of the Peace Dale Gorczynski.

County Court at Law # 3
Incumbent Republican Judge Natalie Flemming is seeking re-election to the bench that she has held since being originally elected in 2010.  I'm not familiar with her Democratic opponent, Erica Hughes, but it appears that she is a personal injury attorney who practices in Prairie View.

County Court at Law # 4 
Incumbent Republican Judge John Clinton is running for re-election to the bench that he has held since being elected in 2010.  Prior to taking the bench, he was an attorney and long-time police officer with the Houston Police Department.  His Democratic opponent is Shannon Baldwin, who is a long-time defense attorney practicing in Harris County.

County Court at Law # 5 [Updated 9/27/17]
With incumbent Republican Judge Margaret Harris not seeking re-election, there is a contested race for the Republican nomination for both Parties in Court Five.  Former prosecutor and current defense attorney Xavier Alfaro and Felony Chief Prosecutor Aaron Burdette are competing for the Republican nomination.  Long-time defense attorney David Fleischer and defense attorney Armen Merjanianon are running against each other on the Democratic side.

County Court at Law # 6
Longtime incumbent Republican Judge Larry Standley has chosen not to seek re-election in 2018.  The Republican candidate is former County Court at Law # 16 Judge Linda Garcia.  Linda is also a former prosecutor and member of the Texas Board of Pardons and Parole.  Her Democratic opponent is long-time defense attorney KelleyAndrews.

County Court at Law # 7 
Incumbent Republican Judge Pam Derbyshire is seeking re-election to the bench that she has held since being elected in 1998.  There is a contested race on the Democratic side. Defense attorney Andrew Wright is running against someone named Frank Pierce.  I'm not familiar with Pierce personally, but I believe he is the same candidate profiled in this website on Ballotpedia.  I'm not sure how up-to-date that website is, but at the time of its writing, it said he was an adjunct professor at South Texas and an associate judge for the 2nd Administrative Judicial Bench.  That website also said he ran for a civil bench in 2012 as a Republican.

County Court at Law # 8
Incumbent Republican Judge Jay Karahan is seeking re-election to the bench that he has held since being elected in 2002.  Before becoming a judge, he was a prosecutor, a defense attorney, and also worked in the civil arena. His Democratic opponent is defense attorney Franklin Bynum.

County Court at Law # 9
Incumbent Republican Judge Analia Wilkerson is seeking re-election to the bench that she has held since first being elected in 1994.  Her Democratic opponent is former prosecutor and current defense attorney Toria Finch.

County Court at Law # 10
Incumbent Republican Judge Dan Spjut is seeking re-election to his second term as Judge of County Court at Law # 10.  He is a former police officer.  His opponent is Lee Wilson.  I'm not sure who Lee Wilson is, although I've done a fairly intensive Facebook and internet search.

County Court at Law # 11
Incumbent Republican Judge Diane Bull is seeking re-election to a bench that she has held since being first elected in 1994.  She is also a former prosecutor.  Her opponent is long-time criminal defense attorney, Gus Saper.

County Court at Law # 12
With the retirement of Republican Judge Robin Brown, the Republican candidate for County Court at Law # 12 is retired Houston Police and attorney Officer John Spjut.  There is a contested race for the Democratic nomination between former prosecutor and current defense attorney Juan Aguirre and defense attorney Cassandra Hollemon.

County Court at Law # 13
With the retirement of Republican Judge Don Smyth, there is a contested race for the Republican nomination for County Court at Law # 13.  Former prosecutor and current defense attorney Jessica Padilla will be running against defense attorney Stephen Touchstone.  The winner of the primary will face off against Democratic candidate and longtime defense attorney Raul Rodriguez.

County Court at Law # 14
Incumbent Republican Judge Mike Fields will be running for re-election to the bench he has held since first being elected in 1998.  Additionally, he is a former prosecutor.  He is running against longtime defense attorney David Singer.  Singer ran against Fields unsuccessfully in 2014.

County Court at Law # 15
With the announcement from Republican Jean Hughes that she is not seeking re-election, there is currently not a formal announcement of candidacy from a Republican representative (to my knowledge), although my understanding is that former Judge Roger Bridgwater is going to run.  Whoever the actual candidate ends up being, he or she will be facing off against defense attorney Kris Ougrah.

So, that is a list of everyone in the criminal courts.  As you can see, there are a lot of great candidates.  I've got a lot of good friends running against each other, so I'm still trying to figure out how I'm going to handle that.  In the meantime, here's the list.  I'll modify it and add links to it as things change.  Anything I missed or got incorrect was an honest mistake.  Let me know and I'll correct it.

Thursday, September 14, 2017

The Judicial Show Down

As I noted in my blog post earlier this week, things have been pretty chaotic in the Harris County Criminal Justice world.  People don't know where to go or what time (or day, for that matter) to go there.  The attorneys are excited about the appointment of Kristin Guiney to the 232nd District Court, so there has been much talk about that.

Judge Nikita Harmon                   Judge Jim Wallace

But the vast majority of the talk around the Criminal Civil Courthouse this week has centered around a confrontation between two judges that occurred on Monday morning.  The dust-up occurred between Republican Judge Jim Wallace of the 263rd District Court and Democratic Judge Nikita Harmon of the 176th District Court around mid-morning.  As with most courthouse gossip, the original details are a little spotty.  

According to witnesses, Judge Harmon had arrived to the courtroom first and had taken the bench.  Later in the morning, there was a lull in the activity in the courtroom, and Judge Wallace indicated that he needed to take the bench to take some pleas for the 263rd.  The initial reports were that Judge Harmon refused to leave the bench, and that Judge Wallace threatened to have one of his bailiffs arrest her if she didn't leave.  On Monday, there wasn't a lot of clarity about what happened after that.  When I was leaving the courthouse, I heard that Administrative Judge Susan Brown was on her way to mediate the situation.

As I've mentioned before, all of the criminal courts are doubled up and sharing courtrooms in the civil courthouse.  How the different courts are handling working around each other has been left to the individual judges.  In some courtrooms, judges are running both dockets at the same time, with the courtroom filled with both staffs.  Other courts have agreed to split the dockets into morning and afternoon shifts, which also works well, as long as everyone is given advance notice.  Several Defendants and attorneys showed up for morning courts on Monday, only to be told that their dockets weren't being held until the afternoon.

Apparently this docket confusion played a large role in the conflict.

Last week, as the courts were moving from the wrecked Criminal Justice Center to the Civil Courts, Judge Wallace was on a pre-planned vacation out of the country.  As courts were being paired up and dockets organized, he was unavailable to submit his preferences for when his docket would be held.  A preliminary schedule released by the Harris County Criminal District Courts' Facebook page on Saturday, September 9th left the 263rd docket time blank.


I spoke with Judge Wallace this afternoon, who told me that when his court staff and Judge Harmon's court staff were moving into the shared court on Friday, Judge Harmon's staff stated that they were going to claim the morning docket.  Judge Wallace stated that no one from his staff agreed to this and an argument ensued.

By Monday, September 11th, an official schedule was provided by District Clerk Chris Daniel, telling people where the new courts were meeting and when.


Accordingly, Judges Wallace and Harmon were scheduled to be sharing a courtroom for a morning docket as of Monday, September 11th.

According to all accounts I've heard, Judge Harmon was first to take the Bench on Monday morning, and had been presiding well over an hour before this incident took place.  All accounts that I've heard also indicate that Judge Wallace had several Defendants waiting to plead in his court, and that there was a lull in activity for Judge Harmon.

Judge Wallace said that at approximately 11 a.m., he entered the courtroom and approached Judge Harmon, indicating he wanted to take the Bench to take the pleas for his court.  He stated that his bailiff was with him as he approached, and that Judge Harmon became angry.  Judge Wallace said that Judge Harmon told him: "You're not going to tell me to get off my bench."

Judge Wallace said that when it became clear that Judge Harmon had no intention of leaving the Bench, he said: "You could be arrested for impeding courtroom proceedings."  He stated that he then left the courtroom to ask Judge Brown to resolve the conflict.  Judge Wallace adamantly denies ever raising his voice or ordering his bailiff to arrest Judge Harmon.

Judge Wallace said that Judge Harmon remained on the bench for some time, but got up to leave.  He said at that time, his staff tried to take the awaiting pleas, but that Judge Harmon's staff refused to leave.  Judge Wallace said that although he has not been back to the courtroom since, his staff has reported additional problems with the 176th.  Judge Wallace said that the176th staff had been overheard telling Defendants on the 263rd's docket to leave the court and come back in the afternoon.

The situation between the two Judges does not show any signs of de-escalating.

As word quickly spread through the CJC, it did not take long before the altercation between the two judges was being portrayed as a racially motivated incident, with defense attorney and HISD School Board trustee Jolanda Jones comparing Judge Harmon to a modern day Rosa Parks.  However, I'm not so sure that this isn't more of a "black robe" issue than a black/white issue.   Regardless, a press conference and protest has been scheduled for tomorrow, September 15th at 11:00 a.m. in front of the Civil Courthouse.  Additionally, a judicial grievance has been filed against Judge Wallace.

In the meantime, Judge Wallace's 263rd District Court is being moved to share a court with Judge Marc Carter in the 228th District Court.  Incoming Judge Kristin Guiney's 232nd District Court will now be paired with Judge Harmon in the 176th.

Wednesday, September 13, 2017

Kristin Guiney Appointed to 232nd Bench

In the midst of all the chaos at the courthouse(s) this week, there was a fantastic piece of news coming from Austin.  Governor Greg Abbott finally made the long-anticipated appointment to the bench of the 232nd District Court of Harris County.


Today, Kristin Guiney was formally announced as the Judge who would be filling the bench vacated by Judge Mary Lou Keel, who was elected to the Court of Criminal Appeals in November.  As most of you know, Guiney is a former prosecutor and currently practices criminal defense.  She previously served as judge of the 179th District Court, where she was highly respected by both sides of the bench.

Governor Abbott's couldn't have made a better choice!  Everyone from the CJC Community is looking very forward to seeing Judge Guiney back on the bench.

Congratulations Guiney!

Tuesday, September 12, 2017

Pandemonium



I have to admit that when the judges said in the aftermath of Hurricane Harvey that they would have the courts up and running by September 11th, I was skeptical.  With the CJC wiped out (yet again) by Mother Nature, confusion reigned.  Prosecutors had no idea where their offices were going to be, nor did the Public Defenders.  Additionally, thirty-eight different courts, a Grand Jury meeting place, Pre-Trial services, and a portion of the District Clerk's Office needed to be relocated as well.  My skepticism at getting everything up and going in under two weeks wasn't an insult towards the Powers That Be -- it was just an honest assessment of the task ahead of them.

Lo and behold, I was wrong and the Courts did actually start back up again by September 11th. 

Sort of.

Although dockets are running, things are far from normal.  Instead of all the courts being held in one central location, dockets are spread across five different buildings.  The sixteen County (misdemeanor) Courts are now at the old Family Law Center.  There are two courts assigned to each available courtroom -- one runs a morning docket starting at 8:30 and the other begins an afternoon docket at 12:30.  

I had my first post-Harvey misdemeanor case scheduled this afternoon, only to find that my client's case had been reset until late October unbeknownst to me.  The coordinator (who is awesome and I am by no means complaining about) said that they had strict numbers that they were allowed to have on each docket and they were doing the best they could.  They were having to reset so many cases that they weren't able to notify everyone involved.  We discussed the difficulty of notifying Defendants out on the unsecured bonds.

Fortunately, the prosecutor assigned to the court was still willing to talk to me about the case (even though it wasn't on the docket) and we worked out a tentative agreement.  It actually ended up being a pretty productive non-setting.

Other than the reset mix-up, the visit to Misdemeanor Land was pretty pleasant, all things considered.  The building wasn't terribly congested and several people utilized the stairs rather than wait on elevators.  The courtrooms weren't crowded, and everybody seemed to be in fairly good spirits.

The felony side of things wasn't quite as cheery.

The twenty-two Felony District Courts are spread across four buildings.  Twenty of the District Courts are housed in the Civil Court Building at 201 Caroline, where they are assigned two courts to a courtroom.  The two remaining District Courts (the 182nd and the 351st) are going to be housed in the Juvenile Justice Center beginning next week.  It seems there is a little bit of a mold issue to be cleaned up before they can begin.

The situation at the Civil Courts building is, um, not ideal.  My friend and fellow defense attorney, Brian Roberts, wrote his observations on it yesterday.  Coincidentally, Brian and I arrived for court this morning at the same time.  Taking the elevator in the county garage to the basement, we ran into a group of people waiting to go inside.  It seems that somebody had pulled the fire alarm and the Constables weren't allowing anyone into the building until everything was clear.

It was just like being back in the CJC!

In front of the Civil Building, several of the Civil Judges were handing out guides to which courtrooms were on certain floors.  It was a nice gesture, not to mention a decent way to get out and meet some future voters!

Inside the Civil Building, there are two sets of elevators.  One runs to the 8th Floor from the Basement and 1st Floor.  The other set runs to the 9th floor and above.  Apparently, the latter set only has two functioning elevators, which has led to a tremendous amount of congestion.

The felony dockets at the Civil Building are only for Defendants who are out on bond, because those courtrooms don't have jail holdovers for inmates.  With each courtroom housing two courts, the rooms are crowded and the hallways are packed with people who couldn't find seating inside.  Tension are high.   Places to sit down and talk with your client are hard to find.  Lengthy resets are being made to alleviate congestion, which can royally tick off some clients.  Yesterday, even two judges reportedly got into a confrontation with each other over the limited space available.

The vast majority of cases are just being reset down the road to hopefully calmer times.

If things at the Civil Building weren't bad enough for Defendants on bond, the situation for incarcerated Defendants is much worse.  Inmates in the Harris County Jail are having their court appearances in jail facilities -- one for female prisoners and a separate one for males.   The dockets are overcrowded. The chance of having a private conversation between attorney and client is non-existent.

Under normal circumstances, a Criminal District Court has somewhere around twenty to thirty inmates per docket, five days a week.  Now, due to the overcrowding, each of the 22 District Courts has been allotted one day of the week to hold a "jail docket."  Attorneys are being strongly encouraged to meet with their clients outside of court proceedings and to move the cases off the docket unless the case is likely to be resolved in court.  Given the overcrowding situation, that's a more than reasonable request.  Bringing a Defendant to court just to have him or her sign a reset and leave isn't going to help anything.

Today, the City of Houston shut off water to the jail, which, in return, caused the jail to cancel morning dockets for two of the courts.  I suppose they will just have to wait until next week.

So, at the moment, life at the Harris County Criminal Justice Center is pandemonium.  We've all been cast into multiple other buildings in the surrounding area and there is confusion and chaos across the board.  Prosecutors are commuting in from all over the county.  Defense attorneys are running from building to building, waiting on elevator after elevator, trying to make sure all of their clients are taken care of.

Despite all of this, the general attitude of regulars at the courthouse seems to be frustrated bemusement.  I think everyone involved has some level of understanding of the problems we are all facing.  Judge, Prosecutor, Defense Attorney, Coordinator or otherwise, people are doing their best to be patient with each other.   As we see people that we haven't seen since before Harvey made landfall, our first question to each other is to ask how one another fared in the flood.

All in all, I would describe the State of the Harris County Criminal Justice System like an emergency room.  Everyone is working to triage the cases.  Defendants out on bond are important, but they currently have their freedom.  Those in custody are taking the highest priority at the moment.  As Mark Bennett pointed out in this post, not even a natural disaster gets to infringe upon the Rights of the Accused.

That's the view as of Day Two.  Right now, things are disorganized, aggravating and sloppy.

But the Justice System is up and running.  It will get better in the days and weeks to come.

Tuesday, September 5, 2017

Justice Displaced



As most of the regulars strongly suspected, we are getting word that the Harris County Criminal Justice Building may be shut down for up to a year due to damage sustained from Hurricane Harvey.  As I wrote in my last post, this was almost exactly what happened in the aftermath of Tropical Storm Allison in 2001.

As this is being written, prosecutors are packing up their personal effects from their offices, as we did during Allison.  This will likely be followed with trustees from the Harris County Jail and D.A. personnel boxing up and moving the files, computers, and other government property from the Office.  The same will have to be done for the PD's Office, the Courts and the Clerk's offices.  In 2001, I found myself loading and unloading boxes out of big panel vans, side by side with inmates.  In all actuality, it was kind of fun.

But things are much different than sixteen years ago. In May of 2001, the D.A.'s Office moved back to 201 Fannin (where we had all moved from in November of 1999).   I'm not sure what the status of that building is, so I don't know if it is a possible temporary shelter for the displaced prosecutors or not.  It is my understanding that the District Attorney's Office is currently operating out of the Harris County Law Library on the upper floors of the old jury assembly building.

In 2001, the Courts all relocated back to 301 San Jacinto.  All things considered, it was a fairly smooth move.  Some courts were doubled up into the same room, but it wasn't bad.  The atmosphere was relaxed and there was a camaraderie between prosecutors, judges, defense attorneys, and sometimes, even the Defendants.

But now, 301 San Jacinto holds the Juvenile Justice Center -- the heavily damaged Juvenile Justice Center.  As of this writing, it doesn't look like that particular structure provides a feasible solution for housing 22 District Courts and 16 County Courts.  There have been rumblings of potentially having some trials in the nice and shiny Civil Courts building, but that is said to be meeting heavy resistance from the Civil Court Judges.  If true, I can't say that I blame them.

Holding criminal dockets (and trials) in buildings not designed for criminal cases causes problems with security.  There are no jail holdovers for in-custody Defendants, which creates issues of how to keep everyone safe and secure.  Problems abound.  Despite that, there is an urgent need to get the Courts back to some semblance of normal as soon as possible -- especially for cases where there are people incarcerated and awaiting trial.  Many have already been in custody for months (if not over a year), awaiting their trials.  Last Monday (during the storm), I had originally been scheduled for trial on a case from April of 2016.  That case (and many more like it) isn't getting any younger.

As of this writing, we have been told that dockets are tentatively scheduled to resume on Monday, September 11th.  I'll believe that when I see it.

As I see it, there are two potential positives that can come out of the days to come.

The first is an opportunity to make some meaningful improvements to the structure of the CJC.  We bypassed this opportunity in the aftermath of Allison, and I hope we don't do so again.  There are things that can be done that are short of a full-blown do-over.  Courts can be moved to lower floors.  Accessible stairwells can be made between floors.  I don't know that anything could have been done to stop the damage to the CJC done by Hurricane Harvey, but I do think things can be done to help the day-to-day disasters that we deal with in that building under even the best of circumstances.

The second positive is the bonding experience that we are all about to have (whether we like it or not).  Things are about to get more casual, and thus more real around whatever place ends up holding our courts.  That's a good thing.  I can promise that every prosecutor, judge, defense attorney, clerk, coordinator, court reporter, and bailiff who was around during Allison can tell a host of stories of the year during "flood conditions."  They weren't always pleasant experiences, but they created the memories that each of us will have when we finally wrap up our careers.

Now those stories that began with "During Allison . . ." are going to start with "During Harvey . . ."  The days, weeks, and months ahead are not going to always be pleasant.  We'll get through them, because (as my Dad always told me) "you've just got to."

When it is all said and done (and you're back in your regular office and court), you'll be proud to be a survivor of the experience.

Monday, August 28, 2017

Shades of Disasters Past

If you are reading this, I'm hoping that means that you rode out Hurricane Harvey okay.  I've lived in Houston since 1996 and I'm speechless at the sadness, devastation, heroism, and sense of community that I've seen unfolding over the past several days.  This city and county never cease to amaze me.

My family and I made it through (thus far) with no flooding and minimal damage.  I hope the same is true for you and your families.  My heart and prayers go out to those who have lost so much.

Having gone through both Tropical Storm Allison and Hurricane Ike during my years as a prosecutor, I've been seeing very similar reports coming out of the CJC over the past several days.  As many of you may remember, during Allison, the brand new CJC proved to be absolutely useless during a flood.  Water filled the basement and elevator shafts, rendering the building unusable for almost a year.   Some modifications were made, and the building did substantially better during Ike.  There was an issue of sewage backup that shut it down for a week or so, but nothing like during Allison.  Flood gates had been installed, and they did their job.

But neither Allison nor Ike brought the water that Hurricane Harvey has.

Chief prosecutors Pat Stayton and Hans "Seersucker" Nielsen have been two of the staff manning Intake for the Harris County District Attorney's Office since Friday morning and both have been posting updates about the condition of the building.  They've been there for going on well past 72 hours, as of this writing.  They've given me permission to use their photos in this post.

The front doors of the CJC.

According to reports from the CJC, the floodgates at the doorways worked at first, but then the sewage started coming up from toilets, just like they did during Ike.  Once that happened, the building had to be evacuated across the street to the Juvenile Justice Center.  They did this by creating a rope line that everyone had to use to guide them and hold onto.

Intake staff evacuating the building.

Back during Allison, the Juvenile Justice Center was the (more or less abandoned) old Criminal Courthouse.  During the yearlong displacement, the Courts moved back there, while the D.A.'s Office moved into its old building at 201 Fannin.  Things have changed since then.  Now, the building is completely occupied by the Juvenile Justice System and courts.  There is no room to move over 22 District Courts and 16 County Courts.  

To make matters worse, the roof apparently just collapsed at the Juvenile Justice Building, flooding courtrooms and making them unusable.

A Juvenile Justice Courtroom

District Clerk Chris Daniel has announced that there will be no jury panels or court settings this week, which is a good thing.  As it currently stands, there does not appear to be any courtrooms to hold court in.  

The cleanup at both buildings will most likely take months.  I've heard that power is still on at the CJC and that may be the only positive news I've heard.  If the electricity is still running, perhaps that will make cleanup faster. But I've also heard that the elevator shafts are filled with water on the lower floors, and there is no telling what the tunnel system and jury assembly looks like.  

I have a strong feeling that it is going to take quite some time to get the Criminal Justice System back to normal in Harris County.   New court dates will have to be figured out for clients on bond.  If you are a person currently out on bond, call your lawyer for information about when you need to come to court again.  For the time being, everything is up in the air.

Stay safe, everyone.

Wednesday, August 16, 2017

August 16, 1999

L-R:  John Jordan, Peter DeLeef, Adam Brown, Earl Musick, Brad Hart, 
Bill Exley, Robert Summerlin, & Me

It's hard to fathom that 18 years ago today I first entered the Harris County Criminal Justice arena.  I remember it like it was yesterday.

I was 26 years old.  Engaged to a girl named Lisa who, two months later, would become the first in a series of wives.

Although I had attended law school in Houston, I had moved back to Bryan/College Station after taking the February Bar Exam because I didn't have a job lined up.  I worked as a paid intern (for $6 an hour!) at the Brazos CountyAttorney's Office while I waited on the Bar results.  When I passed, I got invited to apply with Harris County, and I moved back to Houston the week before I started.

Chance Bolton, a childhood friend of mine, had recently gotten out of the Navy and was going to school in Houston.  He and Lisa and I moved into an old house I was renting in Timbergrove.  None of us had any money.  At the time, I was the only one who had a job lined up.

I was incredibly nervous getting ready for work that first morning.  I didn't really know anyone that worked there. I don't think I even knew where I was supposed to park.  The D.A.'s Office was still in the old building at 201 Fannin.  As I headed out the front door of the house towards my car, I heard the door open behind me.  It was Chance.

"Hey Newman," he said, strolling out into the front yard.  He extended his hand.  "I just wanted to wish you good luck on your first day as a prosecutor."

It was both an awkward and sweet moment between good friends.  Mainly it was awkward because he was only wearing his boxer shorts.  I thanked him and then implored him to go back inside before any neighbors got the wrong idea about our relationship.

I got to the D.A.'s Office and met with Renee Magee, who was the Deputy Dawg of Misdemeanor at the time.  I had done an academic internship with her after my second year of law school in Judge McSpadden's court and she had put me in touch with the Office once I passed the Bar.  Although I was starting out working in the Justice of the Peace Division, Renee took me over to see how the county courts worked.

I remember an attorney coming up to me in court and asking me, "Are you the attorney of the day?" Not familiar with the local terminology, I thought he was making some sort of crack about the longevity of young prosecutors.  I gave him a dirty look and he walked away, confused.

That afternoon, I had my first exciting JP docket in front of Judge David Patronella.  I got lost getting there, and when I first arrived, Adam Brown was already talking to people on the docket.  I introduced myself to him and then I sat down.  I looked at the huge bucket of speeding tickets and other traffic violations and I realized I had absolutely no idea what I was supposed to do.

"Um, hey," I said to Adam.  "What am I supposed to be doing?"

"You'll have to figure it out," he said.  "That's why they pay you the big bucks."

I thought Adam was maybe the biggest asshole I'd ever met in my life.  Luckily, the clerks helped me, because I had no clue.  I was miserable.

It was a terrible first day.  I remember going home, consoling myself with the plan that I was going to honor my 3-year commitment to the Office and then go back home to Brazos County and hopefully run for District Attorney there someday.

My, how plans change.

Over the next few days, I'd meet the other guys in JP.  I met Bill Exley, who sternly warned me to never jaywalk, because Mr. Holmes would fire you if he ever caught you doing that.  I met Robert Summerlin, who would become my practical joking arch-nemesis for years to come.  Peter Deleef was the congenial and very odd guy from South Africa.  John Jordan, who bore a striking resemblance to NASCAR racer Jeff Gordon, yet was the slowest driver I had ever seen in my life.  Earl Musick, the retired HPD cop, who entertained us with stories of the old days.  And my first chief, now-Judge Brad Hart.

Over the next months, the seven of us and our chief became an extremely tight-knit group (even Adam).  Earl came up with the nickname of The Magnificent Seven, which ultimately got shortened to The Seven.  We all thought we were awesome.  I'm pretty sure the rest of the Office thought we were arrogant jackasses.  I feel that way because a lot of other prosecutors told us we were a bunch of arrogant jackasses.

But man, we loved being prosecutors.

L-R:  Me, Adam, Bill, Peter, John & Brad at one of my 
many bachelor parties.

It's funny how quickly time goes by.  It doesn't seem like it was 18 years ago when I first started, but so much has changed. I never talk to my friend Chance anymore. I got divorced from that first wife.  Remarried.  Had a kid.  Divorced again.  Remarried again. (Hopefully, I'm holding steady on that front.) Had another kid. (Hopefully holding steady on that front, too.)

Eventually, the majority of "the Seven" left the D.A.'s Office.  The only one of us still working there is John.  Brad is Judge Hart now, and the rest of us all went on to private practice.  I saw Exley yesterday in court, and I told him he looks a year older every time I see him -- although I knew I wasn't really one to talk about aging poorly.

Every once in awhile I'll get asked if I would ever go back to prosecuting.  I say I don't really miss the job itself, but I miss the camaraderie.  I'm always glad when I see younger prosecutors hanging out with each other these days because it reminds me that no matter how many times the regime changes, that camaraderie is still there.  

There have been a lot of ups and downs over the last 18 years, but, man, I wouldn't have missed it for the world.  Those early years were some of the best.

Hell, I even enjoyed hanging out with that asshole Adam Brown.

Me and Adam in New Orleans - October 2002

Friday, August 11, 2017

Cop Versus Prosecutor


The headline coming out of The Coastal Bend Chronicle sounded pretty damning.
Assistant County Attorney Makes Implied Threat on Secret Video Recorded by Officer.
It's a story out of Aransas County, but the headline got my attention when I saw that a defense attorney out of Dallas had shared it on her Facebook page.  It further garnered my attention when I saw that my friend (and fellow defense attorney and native Bryan-ite) Eddie Cortes was commenting on the article in defense of the prosecutor.  Eddie is a die-hard defense attorney, and doesn't throw around support for The Government lightly.

I then read the article and realized that the prosecutor in question is former Harris County Assistant District Attorney Kelsey Downing.  I knew Kelsey when she was a prosecutor here.  We are friends on Facebook, but we never socialized together.  I dealt with her in court on a case or two and always found her to be above-board and professional.  The article made several accusations about her that I found to be shocking in light of my experiences with her.  I watched the entirety of the video to see if it comported with what the article accused her of.

From the news article:
Downing begins the conversation addressing the writing of criminal offense reports, but quickly changes the topic to a personal issue which she says exists between her and the officer.
Well, that's sort of accurate but it's misleading.  The video starts with City of Rockport Police Officer Chad Brooks' body cam rolling in the parking lot of the Aransas District Attorney, where Kelsey serves as First Assistant.  That's your first sign that there's a pre-existing problem between the officer and the D.A.'s Office.   Officers and prosecutors typically are copacetic with each other.  The prosecutor is the legal advocate for the case the officer filed.  Some relationships between cops and prosecutors are stronger than others, but when one side is taping the other, the relationship has clearly fractured badly.

So the fact that the Officer Brooks turns on his video before he even hits the door is pretty telling. Perhaps the biggest flaw that I find with the article is that it characterizes this conflict as a "personal issue" but it doesn't make any attempt to flesh out what that issue is.  I'll write more on that a little further down, but suffice it to say that the "issue" is clearly a professional issue, not a personal one.
Downing spends the rest of the 16-minute recording criticizing the officer's criminal offense reports, telling him they have too much detail and are too long.
That's just a complete misstatement.  The video is sixteen minutes long, but Kelsey's issues with the officer's report writing are largely confined to the beginning of that.  She tells Brooks that he spends too much time self-aggrandizing his personal qualifications and takes issue with him putting factory specifications on a pellet gun in the report.  She tells him that a defense attorney will embarrass him on the stand for this type of over-explaining.

Okay, maybe this is a little over-critical on Kelsey's part, but she moves off of the topic and begins talking about the facts of the case.  As Eddie pointed out in his comments on the article, this is called "woodshedding the witness," and it is absolutely standard practice for trial preparation.  Every prosecutor should absolutely meet with their witnesses and that's what Kelsey and Brooks are doing.

But this woodshedding session is so painful to watch.  Kelsey's questions for Brooks are answered with short replies that are reminiscent of when I ask my kid why he got in trouble.  He isn't evasive, but he's also not helpful.  At one point, Kelsey tells Brooks that she needs Brooks' wife's phone number because she's a witness on the case.  (Side note:  It is never explained why on earth an officer's wife is a witness in a drug bust case, but whatever.)  Rather than give Kelsey the number, Brooks points out that she knows his wife is a court reporter and she can get in touch with her that way.

There is clearly not a lot of love between prosecutor and cop at this point, but in my opinion, Kelsey is trying to be conciliatory.
Citing her lengthy experience as a trial attorney, and her participation in over 70 trials throughout her career, Downing told the officer she had the experience to make these type of determinations.
Um, okay, she's a former Harris County prosecutor and she's the First Assistant.  She has every right to cite her experience in justifying why her trial recommendations are sound.
As the conversation between the two comes to an end, the conversation turns hostile after the assistant prosecutor implies she can give Brooks a bad work reference to other law enforcement agencies if she so chooses. 
That's super misleading.  What she actually says is that she had given a good recommendation to another agency about a different officer and then tells Brooks that she would like to be able to do the same for him.  That's a conciliatory statement that the article unjustly characterizes as implying "she can give Brooks a bad work reference."

As I mentioned earlier, the article's biggest flaw is its failure to make any attempts to uncover why there is so much tension between Officer Brooks and Kelsey.  Fortunately, Brooks' video explains that.

Towards the end of the video, Kelsey points out that Brooks is not allowed to blurt out a Defendant's criminal history when he's testifying.  The wording of the conversation indicates that the origin of this issue is because Brooks had done exactly that in a previous trial.

For those of you who don't practice criminal law, during the guilt/innocence phase of a trial, the Defendant's criminal history is not to be mentioned unless there has been an exception established under the law.  Understandably, police officers aren't fond of this rule.  They would love nothing more than for the jury to be aware that the guy sitting there claiming innocence actually has a rap sheet a mile long.  Experienced cops know that they can't blurt out anything about priors.

Inadmissible testimony about a Defendant's priors will almost certainly lead to an automatic mistrial.  If the judge feels that the infraction is severe enough, under certain circumstances, they could make a finding that the inadmissible testimony was the result of prosecutorial misconduct and bar the case from being retried.

The end of the Brooks video is Kelsey trying to impress upon Officer Brooks that he needs to follow direction and he needs to follow the law.  From what I viewed on the video, it seems that Brooks is pretty non-committal about promising any such thing.

If that is truly the case, then Officer Brooks is a fool.

When I was a prosecutor, I tried to remain cognizant of the fact that the streets were the police officers' arena.  I tried not to second guess how they did their jobs in the line of duty unless it became absolutely necessary.  But on the flip side of that, I always felt that the courtroom arena was mine.  I respected their side of the street and I expected them to respect mine.

What I viewed in Officer Brooks' video was Kelsey Downing doing her best to politely inform an officer that he needed to listen to her advice while testifying.  The Coastal Bend Chronicle grossly mischaracterized what happens on the video.

Disappointingly, some in the Defense Bar have pounced upon the article without really analyzing what the video shows.  I've seen it characterized as a prosecutor criticizing and trying to influence a poor police officer.  In fact, she's a prosecutor who is trying to make sure a witness that she intends to sponsor in trial will follow the law and the rules of the court.  As noted in this article, the Aransas County District Attorney's Office ultimately lost faith in Officer Brooks' ability to follow those rules.  The Office no longer sponsors him as a witness, nor prosecutes cases in which he is involved.

At the end of the day, what more could the Defense Bar ask of a prosecutor with a cop that doesn't seem to want to follow the law?