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?

The Name is Coyne. Brian Coyne.

My friend and fellow defense attorney Brian Coyne is a smooth operator.

In addition to being one of the best trial lawyers I've seen try a case in the CJC, he's also a very sharp dresser.

His suits are custom tailored from Jos. A. Banks.  His sunglasses are the most expensive that the Sunglass Hut kiosk at Willowbrook Mall has to offer.  His shoes are ordered exclusively from Foot Locker's business attire section.  His briefcase was the most expensive item for sale in Washington D.C.'s Spy Museum gift shop.

Other than losing his umbrella from time to time, Brian pretty much has his stuff together.

Except today.

Today was a bad fashion day for Brian.

Saturday, August 5, 2017

The Inevitable Tragedy

One of the issues that I have not written about on the blog over the past several months is the epic battle being waged in the Federal Courts over the Harris County Bail Bond System.  It isn't because I don't find the issue important.  It is tremendously important and will have far-reaching consequences for the way all cases are handled in Harris County.

I didn't write about it because I didn't have a firm grasp on all of the details involved.  The information that I had on the issue, I largely learned from reading Meagan Flynn's articles in the Houston Press about the lawsuit.  I also heard concerns from some judges and prosecutors about what would happen after U.S. Chief District Judge Lee Rosenthal declared Harris County's bail bond system to be unconstitutional.

The primary criticism against Judge Rosenthal's ruling was that it basically handed unsecured bonds to people who were not likely to come back to court.  Since the ruling dealt with misdemeanor cases, and my caseload primarily consists of felonies, I wasn't really all that affected.  I did presume that a bureaucratic nightmare was about to ensue as the number of bond forfeitures were probably going to skyrocket in the County Courts.

And, I've heard, anecdotally, that this prediction was accurate.  I had one prosecutor tell me that in the course of one day, over 100 defendants had bond forfeited while on their unsecured bonds.  I don't know if that's true, but I wouldn't find it all that surprising.

The other concern to those who opposed Judge Rosenthal's ruling was the danger to society created by giving undeserving people unsecured bonds.  Somebody who hadn't previously been entitled to an unsecured bond was going to hurt somebody while out on bond.  I agreed that this scenario was bound to happen eventually.  It was just a matter of time.

As it turns out, it didn't take much time at all.

On July 5th, 2017, Jonathan Mendez was arrested for the offense of Driving While Intoxicated.  His criminal history was lengthy, consisting of many felonies and assaultive offenses.  On a previous felony case, he had a bond forfeiture thrown in for good measure.  Based on this, his bond was initially set at $5,000.

But, Mr. Mendez couldn't make that bond, and the Sheriff's office was forced to release him on an Unsecured Bail Bond on July 6th.    Mr. Mendez signed the paperwork and agreed to appear in County Court at Law # 12 on August 16th.

Unfortunately, on July 28th, Mr. Mendez was driving with a female passenger, Victoria Reyna, when he was involved in a minor accident.  According to court documents, he fled the scene of the accident at a high rate of speed, but lost control of his SUV.  He crashed into a tree and a utility pole, killing the female riding in the front passenger seat of Mr. Mendez's vehicle.

Following a blood test result, he was charged with Intoxication Manslaughter.

Like I said, it was just a matter of time before something like this happened.  That being said, it doesn't mean that Judge Rosenthal's ruling was wrong.  The entirety of the bonding system in Harris County has needed reevaluation for quite some time. The bonding system should never be used to hold someone in custody to induce a plea, nor should it be used in a way that penalizes the poor.   Both of those things were happening with regularity before the ruling.

But there are downsides to every tough decision, and tragedies will occur, like they did in this instance.  The bond system needs to be reevaluated and quickly, but its new incarnation needs to focus on those issues that bonds are actually designed for -- assuring that an accused appears for court and protecting public safety.  That plan is currently in the works for Harris County.

Unfortunately for Victoria Reyna, its arrival will be too late.

The New Trace Case Policy

The Harris County District Attorney's Office under Kim Ogg has finally rolled out the "No Trace Case" policy that many of us have been expecting since she took office on January 1st of this year.

The policy dictates that the Office will no longer file State Jail Felony Possession of a Controlled Substance charges on cases where only residue or "trace" amounts of the drug are recovered when a person is arrested.  These types of cases are most commonly filed when a person is arrested still carrying a crack pipe, but the crack has long since been smoked.  Under the law, felony charges may be brought if there is a detectable (as opposed to usable) amount of drugs such as heroin, cocaine, or meth recovered.  As a matter of contrast, for a person to be charged with the misdemeanor charge of Possession of Marijuana, there must be a usable amount recovered.  There is no such requirement for the "harder" drugs that fall in the felony level, and it is not unusual to see charges found on drug cases where the amount in question is .001 grams.

The decision of whether or not to file Trace Cases is a controversial one.

The arguments in favor of filing them typically come from police officers who rightfully point out that residue cases are evidence of larger amounts of the drugs that have already been consumed.  The police further believe that the cases help keep those troublesome junkies off the streets, which will trickle down into a reduction in burglaries, rapes, and other violent crimes.  They also point out that drug addicts use the drugs almost immediately upon acquiring them, making it virtually impossible to catch them with their usable amounts.

I've gone on record before as being against the filing of Trace Cases.  (From the Intellectual Honesty Department, I supported my arch-nemesis Pat Lykos' policy when she stopped filing them in December of 2009.)  It isn't that I'm in favor of smoking crack.  I've never tried it myself.  For me, it is an issue of manpower and resources.  I remember that shortly before the Lykos policy, I was driving on Beltway 8 with my oldest son when a car sideswiped the rear panel of my 4-Runner and kept on trucking.  I got a license plate number and called the police.  It was the middle of the afternoon on a weekday, but no officer was called out or responded.  About six hours later, the police called back to ask if I was still at the scene.

But, the crack pipe cases were still being filed wild fire.  I just believe it is a better use of resources to focus on other crimes than these.  I know a lot of people in law enforcement read this blog and are going to disagree with me on this.  I'm bracing myself for the backlash.

On a lighter note, I do think that it is rather amusing that the notice of the new policy did not come in the form of a press release or email to All Prosecutors.  Apparently the Ogg Administration was doing a "soft roll out" by just leaving notes for the prosecutors working intake.

"Due to budget cuts, we are using new methods 
of sharing officewide memos."

Expect there to be a lot of complaining from the police unions and Ogg opponents who will make the argument that Ogg is "legalizing drugs."  Don't buy into that argument.  Police officers have the absolute right to arrest someone for possessing a crack pipe (or other residue holding item) and file a Class C Misdemeanor of Possession of Drug Paraphernalia case.  

It's still a crime, just not a felony.  

Tuesday, August 1, 2017

For the Lazy, Yet Ambitious Prosecutor

As most of you know, the Harris County District Attorney's Office is staffed 24/7 with prosecutors working as intake attorneys.  When a police officer makes an arrest for anything higher than a Class C misdemeanor, he or she has to call a prosecutor and get approval to file that charge.  I wrote about how it worked back in 2008, when this blog was young and I was still a prosecutor.  As far as I know, it hasn't really changed all that much.

One component that I didn't cover back in 2008 was that of the Probable Cause "P.C." prosecutor.  The prosecutor working this position was tasked with collecting a group of newly filed cases and then taking them to Probable Cause Court.  At Probable Cause Court, recently arrested defendants are brought before a magistrate, and the Probable Cause prosecutor would read a short summary of why they had been arrested.  The magistrate would then make a finding of whether or not Probable Cause existed to continue to hold them.  Other collateral matters would be taken up, as well.  Bonds would be set.  If a Magistrate's Order for Emergency Protection needed to be filed, that could be done in P.C. Court, as well.

None of that is too tricky for the P.C. prosecutor.  Back when I had the job, we described it as being a "reading monkey," because all we had to do was read a paragraph to the magistrate.  There were no persuasive legal arguments.  No legal research.  Basically, the prosecutor just needed to be literate to be qualified to do the job.  The trickiest part was making sure that you brought the right files to court.

For some strange reason, the position of P.C. prosecutor was a senior one.  A prosecutor had to be a Felony District Court Chief to do the job.

Like the Intake Division, P.C. Court also operates 24/7, with dockets at regular intervals throughout the day and night.  Prosecutors were assigned to the Reading Monkey job for the 8 to 5, 5 to Midnight, or Midnight to 8 shifts.  The 5 to Midnight or Midnight to 8 shifts got paid extra money for working the extra hours.  Other than the crappy hours, it was a pretty cushy gig.

Apparently, recent budget cuts at the Office have led to an issue with funding for the overnight P.C. gigs, which has led to some idiotic creative thinking from the upper administration.

Today, prosecutors received an e-mail from Intake Chief Jim Leitner, offering a solution to the P.C. Chief crisis.  His introductory paragraph was interesting:
What is your goal as a Harris County prosecutor?
Over the years, the most common aspiration I have witnessed is that prosecutors hope to rise to the level of District Court Chief.  However, given the employment situation in our legal community, the sheer number of competing prosecutors, and the time it takes to acquire the requisite skills, reaching this goal can seem daunting. [Emphasis added]
Okay, so you gotta give Jim credit here.  He's being honest that pretty much every prosecutor hopes to make felony chief some day.   He's also being honest when he says that it can take a long time to get there.  I spent seven years working my way up to Chief, and it was hard work.  It was also very necessary work.  Those seven years gave me the "requisite skills" to become a Felony Chief.  A Chief prosecutor is both a supervisor and a teacher to those under him or her.  How can you supervise or teach without having first acquired those "requisite skills?"

But Jim's intro paragraph here is talking about those "requisite skills" as if they are annoying conditions just designed to keep a prosecutor down.  Wouldn't it be nice if you could just skip all of that "experience" crap and get right to being a Chief?

If so, boy, does Diamond Jim have a deal for you!
In the Intake & Grand Jury Bureau we are presenting an opportunity to become a District Court Chief on a "fast track."
That "fast track" involves holding down the job of the Reading Monkey for 18 months.
The position will be open for application by qualified Felony #2 prosecutors who are prepared to accept the responsibilities of Felony Chief work in the Probable Cause Court setting at beginning Felony Court Chief level pay.  The assignment will then guarantee the selected attorney Felony Chief promotion at the conclusion of the 18 month assignment.
So, let me get this straight.  You can be a Felony Two, with very little trial experience, and start getting paid like a Chief immediately?  And then all you have to do is work P.C. Court for 18 months and you are guaranteed a Chief slot?  I mean, sure, your peers (who are also trying to make chief) will be working their asses off trying murders, aggravated robberies, and sexual assaults, but who needs that hassle?  What a bunch of suckers!

Perhaps Jim (or whoever came up with this idea) didn't think about all of those opportunities to get "requisite skills" that the potted plant P.C. Chief will be missing.  Maybe it was an oversight?

Oh no, wait.
While the assignment is challenging, imagine 18 months without trials or the accompanying pressures of a trial lifestyle.
What?!  He's actually advocating for avoiding the "pressures of a trial lifestyle?"  Are you freaking kidding me?

He might as well have written this:
Hi kids!  Tired of being a prosecutor and having to learn all that crazy trial stuff?  Does the idea of working get you down?  Would you rather just be in charge of everybody instead?  Well, come be a P.C. Court Chief!  We'll pay you like you were a chief immediately and after 18 months, you can supervise people -- just as if you had actually been a real prosecutor!
This idea may literally be the dumbest administrative one that I've seen come out of the Ogg Administration.  I mean, I know that putting people like John Denholm in supervisory positions doesn't exactly set the bar real high when it comes to expectations, but seriously?  This plan is basically asking for a prosecutor to be lazy and then promising them a supervisory payoff if they do it.

It will be interesting to see who all applies for the position.  I'm sure there will be quite a few just because of the salary hike alone.

What will be more interesting, however, is how the winner of the position will be regarded by his or her peers that actually stay in the Trial Bureau and earn their way to the position of being a Felony District Court Chief.

Wednesday, July 26, 2017

More Fun with Facebook Analytics

A few years ago, I wrote this post about how much Facebook infiltrates our daily lives, even when we aren't accessing it.

The issue back then was a rather odd "friend suggestion" of some random guy that I had just run into at the Ft. Myers, Florida airport.  I noted at the time how much information we voluntarily give away about ourselves while at the same time, adamantly defend our right to privacy.  I wasn't judging anyone.  I'm just as guilty (if not more so) as anyone else about oversharing on Facebook.

Most of you have probably seen some of the little, cutesy things Facebook has been offering lately.  For example, they offer to post little video bits that they've created which celebrate your years of friendship with somebody else.   That seems like fair game.  They show pictures and comments you've made on each other's pages and repost them.  It's silly, but I see a new one almost every day.  I'm sure you do too.

On things like that, they are just regurgitating stuff Facebook users posted on Facebook.

A month or so ago, they did another gimmicky type of presentation, where they did some sort of video montage showcasing my profile and all of my closest friends.  It was pretty accurate.  It showed around five or six people that I do consider to be closest to me.  That wouldn't be too hard to figure out.  Friends tend to hit that Like button more often on their Friends' pages, right?

But, I had to pause for a second, because also in my "closest friends" montage was my friend, Luci.

Now, don't get me wrong.  Luci is one of my closest friends and she has been for years.  Quite frankly, she's like family.

But she's never on Facebook.  She's got a profile so that she can spy on share moments in her children's lives, but she doesn't post.  She doesn't hit the Like button on anything.  She never uses Facebook.  Like ever.  Our friendship is one of those old-fashioned ones where you actually interact and communicate directly with each other.

I'm kind of curious how Facebook knew that we were such good friends without mining some data which was definitely not on Facebook.

This morning, I had yet another reminder of how much Facebook infiltrates our lives.

As I mentioned last week, my 3-year-old son had been through a pretty significant medical scare recently.  Although he continues to be on the upswing (knock on wood), we are still closely monitoring his bruising.  Seeing as how he is three and is (as the doctor noted in her report) "very energetic," there are new bumps, bruises and scrapes every day.  In an attempt to keep track of which ones are new, old, healing, or lingering, my wife and I take pictures of him with our phones.

And here is where it gets interesting.  Last night, he had a bruise on his butt, so I took a picture of it.  This morning, Facebook was offering to post yet another "very special montage" of the past few days.  In typical Facebook style, it offered me a preview (that only I could see) of a slideshow of the past 24 hours.

Included in the "preview" was a picture of my kid's bare ass.   As the picture appeared in the preview, a digital circle kept flashing around said butt cheeks for some reason.

So, let's break this down for a second.

Obviously, I didn't take that picture for public consumption.  I didn't take it to share with anyone and certainly not to post on social media.  Yet, somehow Facebook had gotten ahold of it, and (I presume) was letting me know that it was not appropriate for posting by drawing a little circle around it.

Now, I know that I signed up for this the second I clicked that little button that approved giving Facebook access to my personal camera roll.  I also know that they have some sort of software that analyzes pictures that are actually posted.  My ex-wife once tried to post a picture of our son with her dad in her backyard on Facebook.  Something glitched and this was the result:

All of this has begged a lot of questions for me:

-Does Facebook literally go through every picture on every camera roll made accessible by a user?
-Do they see things that need to be reported to the police?
-If they do, do they ever do so?
-How has Chris Carlson not gotten a lifetime ban yet?

And so on.

I'm not really complaining here, because, as I've mentioned before, I signed up for Facebook and I continue to use it.  If I were truly concerned about it, I'd pull the plug and deactivate everything.  I probably won't even click that button that stops sharing my camera roll with the app.

And even though I don't have anything to hide, I still know that oversharing on Facebook is stupid.

I guess for me, this just boils down to the immortal words of Ron White:
I had the right to remain silent . . . but I didn't have the ability.

Thursday, July 13, 2017

Ryan Patrick Named US Attorney

Huge congratulations to former 177th District Court Judge Ryan Patrick on being appointed US Attorney for the Southern District of Texas.

As readers of this blog know, Judge Patrick is someone who I think very highly of.  When he was elected to the 177th bench, there were some who were worried that he was not old enough and didn't have enough experience for the job.  He was undaunted by the grumblings and quietly went about proving all to all the skeptics that he was a thoughtful, intelligent, and compassionate jurist.  He did a great job.

I have no doubt that he will do the same as U.S. Attorney, and I look forward to him doing great things with the Office.

Saturday, July 8, 2017

Why I Was Away

I had a couple of people ask me why I hadn't written anything lately, and I realized that it has been almost a month since I last wrote.

There are two main reasons that I haven't written.  The first reason was that I was in trial on a felony murder case.  It lasted for five days, but stretched across two weeks, so it kept me preoccupied.

The trial was largely fought over punishment, and it turned out pretty well, all things considered.  The prosecutors were above-board and did a great job, and I was very happy to try a case in front of visiting Judge Belinda Hill again.

The second reason for the absence from the blog was probably the scariest thing that has ever happened to me in my life.

I won't keep you hanging.  The story has a happy ending, but only after the longest six days I've ever lived through.

Over the past several weeks, my wife and I noticed that our 3-year-old was really having a significant problem with bruising.   He was bruising easily and those bruises were taking an overly long time to heal.  Given that he runs around like a bull in a china shop during the majority of his waking hours, we weren't overly concerned.  A persistent ear infection was causing him more problems.

On Thursday, June 29th, we had friends in from out of town and our kid fell while playing with their son.  He landed on his shins, but it only slowed him down temporarily.  He was up and running around again in a few minutes.  But the next day, his shins looked like someone had taken a 2X4 to them, repeatedly.  The bruises were huge and dark.

My wife decided to take him in to our pediatrician on Saturday for his ear infection and while he was there, the doctor was (understandably) concerned about bruising.  She took pictures and drew blood.  My wife texted me and said she thought we were about to get reported to CPS.  The doctor told my wife that we should get the blood results back later that afternoon.  We went about our business for the rest of the afternoon.  I think we both were expecting the blood results to show some level of anemia.

We were on our way out the door to a friend's birthday party when the doctor called with lab results.

She told us that the average healthy person has between 150,000 to 400,000 platelets in their blood.  Our son's blood test indicated that he only had 9,000.  She told us it wasn't safe to have him out of a hospital and that she was calling ahead to Texas Children's Hospital Emergency Room.  She told us to get him there immediately.

At this point, any illusions I've ever held about myself being a cool hand in a crisis went out the window.  I freaking lost it.  Like bad.  It wasn't pretty.  Fortunately, my wife was much more calm.  We quickly packed up some bags, dropped my 11-year-old off with his mom and headed to the ER.

The personnel at Texas Children's were fantastic, and they were not quite as alarmed (or alarming) as our pediatrician.  They had read the blood results and said that our son had a condition called thrombocytopenia and there were multiple potential causes for it.  Some of the causes could be as benign as a virus.  Others could be much more serious  -- such as leukemia or worse.  In some cases, the body could correct the problem on its own within a few months.  In others, it could be fatal.

The signs were good for our boy.  Other than the extremely low platelet count, everything else about his blood test was fine.  His spleen and lymph nodes felt normal.  His color was good.  He didn't appear to be tired or suffering from nose bleeds.  Under the circumstances, the ER doctor sent us home with orders to follow up with a pediatric hematologist on Monday.  Our pediatrician, who had kept in touch with us throughout the ordeal, expressed her concerns.  Both doctors agreed that he needed to be confined to virtually zero activity.  A cut or a bump on the head could be potentially fatal.

So, we brought him home, quickly to realize that our hyperactive 3-year-old did not get the memo about all of this "bedrest" business that the doctors ordered.  I have never felt on the verge of a heart attack so frequently in such a short period of time.

It turned out that we couldn't be seen by the pediatric hematologist until Thursday.  For future reference, having a medical emergency during the 4th of July weekend is really, really horrible timing.  So, we spent from Saturday night to Thursday afternoon scared to death that our kid was going to die.  During the night, I would wake up terrified that he was going to have a spontaneous brain bleed and during the day, we were doing everything we could to keep him from injuring himself.

My sister was a Godsend.  She drove in from College Station to babysit him while I had court and my wife was at work.  She and my wife were both amazing, which is good.  I was completely useless.  I spent six days feeling like my chest was about to implode.

On Thursday, we finally met with a pediatric hematologist at UT Health Science Center.  She was much more encouraging and said that our kiddo wouldn't need any chemo or blood transfusions.  She said that his bone marrow was producing platelets just fine, but that his condition (something called Idiopathic Thrombocytopenic Purupora, or ITP) meant his immune system responded to a viral infection he probably had about a month ago and was mistakenly destroying platelets instead of the virus.  She said that once the immune system self-corrected, the platelets should replenish fairly rapidly, and could be back up to 50% within three months. When I told her that I was worried he was going to die, she seemed somewhat amused.   She did recommend no physical activity for the time being, and said he needed to wear a helmet during waking hours until his platelet level got up to at least 50,000, and that we needed to watch for any active bleeding and take him to the ER if that occurred.

She sent him down for additional blood work after our appointment, which he was not happy about at all. She said his platelet count could already be on the upswing and she'd call us with the results the next day.  Friday as I was pulling into the county garage, the doctor called and said Smith's platelet count was already back up to 120,000.  Honestly, I don't know if I've ever felt so relieved in my life.

I walked away from the experience with my son with a couple of thoughts:

1.  It is completely normal for two qualified, intelligent, and well-meaning experts to have two drastically different opinions of what evidence shows them;

2.  Having a career in the criminal justice field really leads you down some dark paths when it comes to imagining the worst case scenario;

3.  There's a tremendous difference between empathy and sympathy.  I've always considered myself to be an empathetic attorney -- first as a prosecutor and now as a defense attorney.  We deal with human tragedy as part of our daily work and I think sometimes we let ourselves believe that we feel our client's pain (or a victim's family's pain) as if it were our own.  This experience has led me to realize that our sympathy for others never scratches the surface of the real and genuine pain that the people who actually experienced the loss feel.   That's not a negative reflection on us.  It's just the truth.  My story had a happy ending, but for six days, I honestly didn't believe I could go on if I lost my kid.  It rattled the hell out of me.

To all of those who have lost children or who have children that deal with long-term, life-threatening illnesses, I honestly don't know how you manage.  You are far stronger than I could ever imagine being;

And finally,

4.  I hope I never spend another moment of my life failing to appreciate what the truly important things in life are.  Complaining is a daily part of life, and it is certainly a routine part of this blog.  I'm sure that I will ultimately get back to my obnoxious, jackass self and writing about wrongs that I think need to be righted.

But right now, my kid is on the mend and sleeping in his my bed.

So, I've got no complaints.

Wednesday, June 14, 2017

Kim Ogg's Difficult Position

The Houston Chronicle is reporting today that former Death Row inmate, Alfred Dewayne Brown, is suing Houston and Harris County for damages regarding his reversed conviction in a Capital Murder case.  Brown's case, as you probably remember, was the subject of the Pulitzer Prize-winning articles written by the Chronicle's Lisa Falkenberg in 2014.  Although he was initially sentenced to death for the murders of police officer Charles Clark and clerk Alfredia Jones, his case was ultimately reversed.

The short version of why Brown's case was reversed is that exculpatory evidence (in the form of cell phone records that corroborated Brown's alibi) had not been turned over to the defense nor admitted in trial.  When the issue was raised, there was no dispute that Brown deserved a new trial.  If I recall correctly, the D.A.'s Office was not opposed to him being granted a new trial.

After the new trial was granted, however, the District Attorney's Office ultimately arrived at the conclusion that they no longer had the evidence or witnesses to retry Brown.  The case was ultimately dismissed.

The decision to dismiss the case was not an easy one.  The homicide detectives in the case were adamant that Brown was factually guilty, and many in the D.A.'s Office did not disagree.

They just lacked the proof to take it to trial again.

So, when Brown sought compensation from the State, which required him being declared "actually innocent" of the charges, then-District Attorney Devon Anderson refused to endorse such an agreement.  Obviously, that's not sitting very well with Mr. Brown.

Brown's lawsuit, targeting the county, most likely could be easily resolved if current District Attorney Kim Ogg agrees that Brown is innocent.  If I understand the procedure correctly, her agreement on actual innocence would clear many obstacles for Brown in his quest to receive compensation from the State.

All of this puts Kim Ogg in a difficult position.  Although Ogg ran as a Democrat with a significant amount of funding from George Soros, a vocal death penalty opponent, she has significant ties to the law enforcement community.  Her past history as a prosecutor and subsequently CrimeStoppers made her a familiar and popular figure with the police, back in the day.

Some of Ogg's policies have strained those old ties to her police friends, and I'm sure she has no desire to strain them further.  If she adopts the official position that Brown is actually innocent, she will be causing some irreparable damage to her relationship with the police -- specifically HPD Homicide.

But on the flip side, if she doesn't agree to declare that the D.A.'s Office believes Brown to be actually innocent, she is going to damage her relationship with the defense bar and with local Dems.  Nothing bolsters the argument against the Death Penalty like having a person wrongfully sent to Death Row.  Given Harris County's dubious distinction as the Death Penalty Capital of the State and Country, an actual innocence finding from here would be fantastic PR for Death Penalty opponents.

Ogg is not in an enviable position for a progressive District Attorney.

My guess is that Mr. Brown is ultimately going to get an actual innocence agreement from Ogg.  In the end, she'll ultimately concede to her true voting base.  She won't like being in the position, and I imagine she won't be the person on television announcing her decision.

I also doubt that there will be any detailed rationale for her decision -- at least not one based on the facts of the case.

Wednesday, June 7, 2017

Death, Defenses, Decisions, and Denny's

Like most of you who read this blog, I have seen the video of Terry Thompson choking John Hernandez to death on the floor of a Denny's restaurant, and like you, I had some pretty immediate reactions to it.  My gut reaction was that this was a disproportionate response to an incident that allegedly started with Thompson being offended by Hernandez urinating in public.  It also seemed to me that the Thompson was continuing to choke out Hernandez long past the time that Hernandez was a threat to him.

It also seemed to me that at least two other people in the video were assisting Thompson in what he was doing by trying to stop the video recording of what was happening.

As in most murder cases (or any criminal cases, for that matter), a brief video doesn't always tell the full story of an incident, and I'm completely open to the possibility that there are a multitude of facts that the general public may not be privy to.  That being said, however, the video, coupled with the Medical Examiner's ruling that Hernandez's death was a homicide, sure do make a fairly compelling argument that probable cause exists to believe a crime was committed.

Now, let's be clear.  A ruling of homicide from a Medical Examiner does not automatically mean that a Murder has been committed.  "Homicide" is not a legal term.  There are plenty of homicides that are quite legal under the laws of the Texas.  For example, whenever the State of Texas executes a condemned inmate, whoever initiates the lethal injection is committing a homicide.  It isn't a murder (under the law) because the State of Texas has ordered that it happen.  (NOTE:  Yes, I know that death penalty opponents will argue that it IS murder, but this post isn't a death penalty argument.  I'm trying to give an example.

When the Medical Examiner's Office gives a ruling on the cause of death, they can choose Homicide, Suicide, Accident, Natural Causes, or Undetermined.  Those are medical findings, not legal ones.

Murder cases are, more often than not, somewhat complicated.  Although some facts surrounding them may be immediately apparent (or caught on video, as the case may be), there is usually a tremendous amount of follow up investigation that needs to be done.  Witnesses interviewed, evidence analyzed, toxicology done, for example.

Officers, however, make arrests on murder charges every day, long before the investigation is complete -- they just have to have probable cause to believe that a murder.  The suspect can be arrested and the investigation can continue.  In all honesty, the investigation almost always continues to develop after the person is arrested in a murder case.

Sometimes, there are some pretty obvious defenses to murder, even when the person who caused the homicide is readily identifiable.  Self-defense, Defense of a Third Party, and even Defense of Property (in Texas) can be considered as legal defenses to a Murder charge.  Under strict legal theory, however, defenses don't technically have anything to do with whether or not there is probable cause to believe a murder was committed.  In a vacuum, if a person is believed to have committed a murder, they are charged, and the defenses are to be raised later.

Fortunately, that's not the real world.  When prosecutors get a call from a homicide cop who has a murder charge that might have some legitimate defenses, it is standard practice to hold off on filing murder charges.  Those cases are generally presented to a Grand Jury for them to determine whether or not they wish to file murder charges.  Although the job of the Grand Jury is (in theory) to simply determine whether probable cause exists to indict someone, in the real world, they routinely hear self-defense claims before making the decision of whether or not they want to do so.

In Harris County, those cases are called "Direct to Grand Jury" cases, meaning they are going to the Grand Jury without the accused being formally charged ahead of time.   If the Grand Jury elects to No Bill (not indict) the case, the suspect is never charged with a crime.  If the Grand Jury does indict, a murder warrant issues because of that indictment.

Yesterday, the Harris County District Attorney's Office announced that the case of Terry Thompson and John Hernandez was going to be presented as a "Direct to Grand Jury" case.  That was mildly surprising to me, after having watched the video, but, like I said, I'm completely open to the idea that there is more to the story than what's been told to the public.

What I did find extremely surprising, however, was today's announcement from Harris County District Attorney First Assistant Tom Berg that the case was going to be presented to the Grand Jury this week.

To refresh your memory, the altercation between Thompson and Hernandez happened on May 28th. Hernandez died from his injuries from the altercation three days later.  As of this writing, that means that this case is less than two weeks old, and they are already talking about taking it to the Grand Jury by Friday.

To me, that doesn't make a lot of sense.

Cases that are presented directly to Grand Jury are usually complicated ones.  They often take weeks and weeks, if not months and months, to investigate before a presentation is made.  The idea that there wasn't sufficient evidence to file charges on Thompson last week but there is enough for a full Grand Jury presentation this week doesn't really compute.  The skeptical side me thinks that there is more in play here.

But then again, that extremely damning video just came out a day or two ago, and that might have spurred some folks at the D.A.'s Office into some faster action.

As I was leaving the CJC, today around noonish, there was a big protest getting ready to start by citizens outraged that Thompson hadn't been charged yet.  Protests at the courthouse are pretty commonplace, but they had shut down all of Franklin Street, in front of the CJC for this one, and a large amount of D.A. Investigators were out in full force for extra security.

To his credit, First Assistant Berg waded out into the middle of all the hoopla and gave a statement (in both English and Spanish) that the case was being handled and that the Office extended its sympathy to the family of John Hernandez.  I like Tom Berg and I respect him.  I have even greater admiration for him for wading out into a hostile audience to speak.  That took balls of steel, quite frankly.

But Tom doesn't have the best poker face and neither does the Office.  The message that he was broadcasting between the lines seemed to indicate that the crowd would be quite satisfied if they just gave the D.A.'s Office a couple of days.

My prediction is that Mr. Thompson will be finding himself indicted either tomorrow or Friday.  There's no way that the Office would rush a case through Grand Jury to expedite a hugely unpopular decision.  The only question I have is "why didn't they just file the charges in the first place?"

Maybe the damning video didn't come out until after they had made the decision to take the case to Grand Jury.  Maybe they were waiting on the official autopsy results.

My gut instinct tells me, however, that the real reason is the fact that Thompson is married to a Harris County Sheriff's Deputy (who was right there next to her husband during the choking incident) bought him something that most murder suspects don't get -- the benefit of the doubt.

I don't begrudge him that.  I'd just like to see it more equally applied in the future.

Wednesday, May 31, 2017


As most people who have met me know, I'm a very proud Native of Bryan, Texas.  Although I haven't lived there since August of 1996, it is my hometown and I hold it near and dear to my heart.  My wife is from there, too, and we visit pretty regularly.

Every morning, I go through my news websites, which consist of checking CNN, the Houston Chronicle, and then the Bryan/College Station Eagle.  Although Houston is my home now, and the hometown of both my boys, Bryan is never too far away from me.  That's a part of my life that I am grateful for.

Today, I saw two pieces of news from my hometown that made me stop and think about growing up, and how much those days shape who you are and who you will become.  Before I go too much further, let me expressly state that I am NOT reliving Glory Days with this post. Under no stretch of the imagination was I a star (or even semi-decent) athlete.  I was terrible.  I weighed 160 lbs, ran about a 3 minute 40 yard dash, and couldn't catch a football if you handed it to me.

But I played high school football for Bryan High School.  It largely consisted of me getting the crap knocked out of me during practice and sitting on the bench during games, but I "played."  At the end of my senior year, we finished 4-7 and I couldn't be more relieved that it was over.

But I was proud that no matter how bad it was, I never quit.

Looking back on those years, I remember each and every one of the coaches that I had.  You spend a lot of time talking to them when you are consistently on the sidelines.  The ones that I played for growing up in Bryan are people that I still remember vividly 26 years past my graduation.  The vast majority of my favorite stories from high school happened in the brutal heat of the practice field of Bryan High School, which is now named Merrill Green Stadium, after our head coach.

I adored Coach Green.  He ultimately retired and became President of the School Board.  He's an icon in the town, and I'm proud to say I (limitedly) played for him.  Other coaches stand out in my memories, as well.  Coach Patterson, Coach Bergland, Coach Vass, Coach Batchelor, Coach Fritsche.  I have funny stories involving them all.

But my favorite coach was David Powers.  He retired this year after 34 years of coaching.  Although he finished his coaching career as the Head Baseball coach, I knew him way back when he coached junior high and then high school.  He coached baseball and he also coached the defensive ends in football.

He was the faculty sponsor of the Fellowship of Christian Athletes when I was in 9th grade.  I remember that he always brought his son, Beau, to the school and games with him whenever he could.  On top of being a good coach, he was a good example.

Yeah, that's me, rockin' the butt cut, next to Coach Powers.

Coach Powers brought out the best in his good players, and he was never anything less than encouraging of those of us who stunk were not so good.  As a coach he made sure his door was open to those kids who needed advice.  He was realistic and real with the kids he talked to, and we all respected him for it.  I remember in 9th grade when two kids had a beef with each other, he mediated it, making sure that the beef was done that day and didn't carry over.

I remember one night in January of 1991.  I went to eat at Red Lobster with my girlfriend and her mom.  As we were waiting for our table, the news broke that the U.S. had begun military operations against Iraq.  By coincidence, Coach Powers was in the lobby, and was watching the breaking news.  I remember his look of concern and he told me he was praying for the soldiers in the Middle East and he was praying for those of us who might be of age to be called there.  It was genuine worry over the kids he coached and it was something I never forgot.

Although our football team my senior team wasn't all that great, our basketball team was.  We had a lot of good players who went on to play college ball, and they made our senior year something to talk to about.

One of our star players was Eric Jackson.  Like most guys I went to school with in Bryan, I can't even remember when I first met him.  He was one of those guys that it seems like I always knew.  

We weren't particularly close, although we were friendly.  He was a very outgoing and very nice guy.  I remember him as being very religious and very devoted to being the best basketball player and teammate that he could be.  As it is with so many classmates, I kept up with him on Facebook and was glad to see that he was happy in life. Married.  Kids.  He became a high school basketball coach.
Over the years, Eric coached at Temple, Tomball, Grand Prairie, Hillsboro, and Kennedy Middle School.  Ultimately, he ended up as head coach of the basketball program at Rudder High School in Bryan.  In 2010, he was named Coach of the Year by the Houston Area Basketball Coaches Association.  It was an award aptly given to a good man.

I was extremely saddened to read that Eric passed away yesterday after having been ill for some time.  My heart goes out to his family and all of those he coached and influenced.  But in this time of sadness, it has been heartwarming to see how many teammates and kids that he coached sharing how much he meant to them.  Tributes of how he sent them inspirational Bible passages, and guided them through tough times were a good reminder of the positive influences that our coaches often play in our lives.

We are usually too young to fully appreciate our coaches in the time and the moment when they are in our lives.  Often it is only hindsight that makes us fully appreciate the jobs they did.  In retrospect, those coaches are the first adults that treat kids as some semblance of an adult.  They share their experience, their example, and their advice.  They also hold us accountable and make us live up to expectations in a way that is different than what we learn from our families.

As I do with many of my posts, I recognize that I'm probably rambling.  So I'll end this simply by saying "thanks."

Thanks to the coaches like Coach Powers and Coach Jackson.  Thanks for the patience.  Thanks for the guidance.  Thanks for the leadership.  Thanks for caring.  The mark you make on lives may not always be immediately evident, but it becomes so very palpable in our later years.  

Even to us benchwarmers.

Thanks for 34 great years to Coach Powers as he takes his well-deserved retirement.

And thanks to my classmate Eric Jackson for the job he did in shaping so many lives.  His memory and positive influence will carry on longer than he probably ever imagined.

Tuesday, May 23, 2017

Top 10 Signs Your Chief Investigator Might Be Working for the Temple Defense Team

10.  Abruptly ends phone calls with elected District Attorney because "Dick is on the other line."

9.  Currently growing out his beard so that he can look more like Stan Schneider.

8.  Keeps bragging about his how his "buddy in Katy" is cooler than all of his old policeman friends.

7.  Received a prestigious award from a prominent Defense Attorney Organization for his work on the Temple Case.

6.  Keeps claiming that the Katy High School Football Team of 1987 was the greatest high school football team in Texas History.

5.  No longer cries in interview with 48 Hours about his old police friends no longer speaking to him.

4.  Currently investigating a group of people known as "the Katy Boys" on their ties to Russia.

3.  Denholm complains that all Temple ever talks about is "Steve.  Steve.  Steve." these days.

2.  Hanging out in felony dockets, looking for witnesses that can help him pin a murder on somebody else.

1.  Wears David Temple's high school letter jacket to work.

Freudian Slip

I received an e-mail today from one of David Temple's attorneys, Romy Kaplan, containing a copy of a motion filed by the Harris County District Attorney's Office today.  The motion, entitled Harris County District Attorney's Amended Motion to Recuse and for Appointment of District Attorney Pro Tem, contained the following pertinent sections:

Now, it is somewhat funny seeing that the Harris County is amending a Motion to Recuse themselves after the original Motion was already granted and new prosecutors appointed.  It's a little bit of "water under the bridge" at this point and I'm not even sure that this Motion has any actual legal bearing.  It would kind of be like me asking to go back and time and claiming that Lykos didn't fire me, because I quit.  

It's a small point.  Obviously the Office was trying to correct the impression that Chief D.A. Investigator Steve Clappart had ever been actually employed by David Temple's defense team.  

Another thing that would have helped them from this impression was, I don't know, NOT STATING IN A LEGAL DOCUMENT THAT STEVE CLAPPART HAD BEEN RETAINED BY TEAM TEMPLE.

But, bygones.  

The Amended Motion goes on to say that an earlier draft of the Motion had inadvertently stated that Clappart was a Temple employee, and that the earlier draft had accidentally been filed by mistake.

Um, okay.  So, at some point early on, the author of the original Motion had been under the belief that Clappart was a Temple employee, but some time later on figured out that he wasn't?  Was there some uncertainty about this somewhere?  I mean, he and his slow-witted friend, John Denholm did accept some Awards on behalf of their work on Temple's defense, and attended the Temple press conference together.

It would seem that in the five months that Kim Ogg had spent "reviewing the Temple case," she might have at least determined whether or not her Chief Investigator was employed by the Defendant.  Seems like kind of a major detail to me, but who am I to judge?

Perhaps it was just a really really humongous Freudian Slip.

NOTE:  Nowhere in the Amended Motion did it mention that Clappart was still actively investigating the Temple case, nor did the District Attorney's Office issue any denials of his ongoing investigation. 

Friday, May 19, 2017

Steve Clappart and The Meaning of Recusal

One of the more interesting revelations from the Harris County District Attorney's Office's Motion to Recuse on the David Temple trial on May 5th was that now-Chief Investigator of the D.A.'s Office, Steve Clappart was actually retained by the Temple defense team.

From the Motion:

Prior to this subtle, yet important, revelation, I think it is fair to say that most of us did not realize Clappart had actually been an employee of David Temple's.  We just thought he was looking into some information on behalf of his buddy, John Denholm.  The fact that the lead investigator for the D.A.'s Office actually used to work for David Temple really begs the question "why did it take Kim Ogg so long to realize the tremendous conflict of interest the Office had?"

Regardless of how insanely long it took Ogg to recuse the Office, she ultimately did do so and the Harris County District Attorney's Office is no longer involved in the Temple case at all.


Well, maybe not.

I received word from multiple sources this morning that former-Temple-investigator-turned-Chief-Investigator-for-the-D.A.'s-Office Steve Clappart may not have gotten the memo on that.

Apparently, one of the named "witnesses" in Clappart and Denholm's silly alternative suspect warrant picked up a Felony D.W.I. warrant this week in a Harris County District Court.  Despite the Office's self-recusal on the Temple case, those sources told me this morning that Clappart went to the court to inform prosecutors not to allow the case to plead without his approval.  He apparently wants to use the witness's precarious legal position as an opportunity to get some real "truth about Temple" out of the guy.

This presents a couple of interesting questions:

1.  Why is the Chief Investigator of all the Investigators in Harris County, Texas so interested in a Felony DWI case?

2.  Does Clappart think he should be approaching a Defendant charged with a felony and interviewing him?

3.  If the D.A.'s Office is no longer handling the prosecution of David Temple, does that mean they can handle his defense?  That seems to be the angle Clappart is working.

4.  Are taxpayers now paying Clappart to work on the Temple defense?

5.  How did Clappart even know this guy got charged with a DWI?  Hundreds of people get charged with a crime in Harris County each day.  How did he know about this one?  The Office can put a "tickler" on the computer for notifications if a certain person picks up new charges.  Did Clappart or (more likely) John Denholm put a "tickler" for this particular witness?

6.  If Denholm or Clappart did put a tickler out for parties they believed to be involved in the Temple case, are they flagrantly violating Kim Ogg's Motion to Recuse?

I don't know the answer to these questions, but it does appear that the Office has not completely relinquished control of the David Temple case quite yet. It seems like this is something that Kim Ogg should probably clarify to the public.

Or, at least, clarify it to Clappart.

Thursday, May 18, 2017

David Temple's New Prosecutors

The Houston Chronicle's Brian Rogers reported today that 178th District Court Judge Kelli Johnson has appointed prosecutors Lisa Tanner and Bill Turner from the Texas Attorney General's Office to prosecute the State of Texas vs. Temple.

To say that Judge Johnson's choice is a good one would be a massive understatement.

Lisa has been with the Attorney General's Office for over twenty years and has been their heavy hitter on tough cases across the State.  She most recently handled the retrial of Bernie Tiede, who was the subject of the movie Bernie.  Mr. Tiede is currently serving 99 years thanks to her efforts.  She was also responsible for trying the actual killer for the murder of Michael Morton's wife.  In short, she is a bad ass.

Bill is the former elected District Attorney of Brazos County where he served before retiring in 2012.  I spent two and a half years working as an intern for him when I was at Texas A&M, and I consider him to be a mentor and one of the best trial prosecutors I've ever seen.  I watched him try three death capitals in the course of one summer and he was amazing in them all.

Although Bill and Lisa are well known for their trial skills, they are even more known for their ethical reputations and integrity.  Neither is afraid to try a tough case, nor are they afraid to dismiss it if it proves to be the right thing to do.  Popularity and public opinion won't be a factor when it comes to how they will handle the Temple case.

When Bill was the D.A. of Brazos County, he prosecuted the Chairman of the Board of Regents for Texas A&M, as well as The University's vice-president.  That wasn't exactly a popular move in Aggieland, especially for an elected Democrat in a heavily Republican county, but Bill forged ahead without concern to public opinion or any external matters.  He did what the law dictated.

And he won.

I've always considered him to be the Atticus Finch of prosecution.  In addition to taking on the upper echelon of A&M, Bill also went toe-to-toe with a corrupt sheriff where his own safety was threatened, and he didn't back away from that either.  He's a man that I admire greatly.

Regardless of what happens on the Temple case after today, the rationale for it will be based on evidence and only evidence.  As I mentioned on Twitter, Bill and Lisa are the gold standard when it comes to prosecution and the case could not be in better hands.

Their appointment is an outstanding choice by Judge Johnson.

Friday, May 5, 2017

Kim Ogg (Finally) Does the Right Thing

Despite my predictions in my previous post about what I believed was going to happen today during David Temple's court appearance in the 178th District Court, the Harris County District Attorney's Office finally recused itself from the high publicity murder case.

Regardless of the strengths or weaknesses of the facts of the case against Temple, it was unquestionably the right thing to do.  Although Kim Ogg took entirely too long arriving at (what many felt was) the obvious conclusion, the important thing is that she ultimately got there.  Whatever decisions are made about David Temple from here on out will be made without the improper influence of the members of Temple's defense team who now work within Ogg's Administration.

It is human nature to still feel frustration about how long Ogg took to recuse herself from the case and how little she communicated with Belinda Temple's family during the ordeal.  Her explanation that she needed more time to "review the case" rang hollow, and I heard from a couple of sources that the Temple file never actually left the hallways of the Appellate Division.  More likely, she needed some time to work up the courage to tell DeGuerin that she couldn't dismiss his case for him.

Whatever went on behind the scenes, Kim Ogg can now focus on being a progressive District Attorney in a major metropolitan area without having the looming specter of David Temple hanging over her head.  Although she may not realize it at the moment, she did herself a huge favor by finally letting go of the case.  Her reputation can recover from the appearance of impropriety that she brought upon herself for the first four months of her tenure.

More importantly, the family of Belinda Temple can know that the person or agency handling their case from now on doesn't owe David Temple's attorney any huge favors, or employ people like Steve Clappart or John Denholm, who would be willing to file capital murder charges on someone just to cast doubt on David Temple's guilt.

What happens after today will be up to somebody else, but the State of Texas versus David Temple can hopefully finally escape all of the sideshow that has been going on around it and return to the facts of the case.

If that happens, then today was a good day.

Wednesday, May 3, 2017


Last week, the Houston Chronicle ran this article about the Harris County District Attorney's Office dropping charges against Dr. Robert Yetman.  As noted in the article, Dr. Yetman had been granted a mistrial after trial Judge Stacey Bond found that prosecutors had intentionally caused a mistrial by making inflammatory remarks during closing arguments.

The District Attorney's Office under Devon Anderson had appealed Judge Bond's ruling, but the 14th Court of Appeals affirmed.  Last week, District Attorney Kim Ogg announced that the Office would not be appealing the case any further, and formally dismissed charges against Dr. Yetman.  The move was not surprising under the circumstances, and it was the right thing to do.

I did find the press release from Ogg to be noteworthy:
"We do not tolerate professional misconduct, lapses in discipline or excessive zeal to win a case," Ogg said in a press release.  "A prosecutor's special responsibility is to see that justice is done, not simply to win, and never do so illegally."
While the sentiment expressed by Ogg is admirable, it oversimplifies things a bit.  Not tolerating professional misconduct is a noble goal, and in this incident, both prosecutors involved in Yetman's trial were let go from the Office when Ogg took over.  Their termination was certainly an example of Ogg sending a clear message that there are ramifications for prosecutors who push the envelope too far.

However, Ogg could have just as easily stated something along the lines of respecting the ruling of the trial court and 14th Court of Appeals, and dismissed the case.  Her statement was far more broad than that.

My guess is that she made her statement because she is getting close to finally dismissing the case against David Temple, who is on the docket in the 178th District Court on Friday, May 5th.  Despite finding multiple excuses to recuse the District Attorney's Office on multiple other cases for much less significant reasons, Ogg has still steadfastly refused to recuse herself from Temple, despite having at least two people in her upper echelon who directly worked on the case.

I predict that Ogg is going to harken back to her press release on the Yetman case and place her reasoning for the dismissal on Kelly Siegler's doorstep.

The problem with doing this is that it punishes the victim and the victim's family for acts attributed to a prosecutor.  The scenario in Temple is completely different from the one in Yetman.  In Yetman, Judge Bond found that the prosecutors believed themselves to be losing the case, so they deliberately caused a mistrial by making an inappropriate argument.  In Temple, the Court of Appeals decided (in a split decision) that Temple deserved a new trial because Brady evidence was turned over in an untimely manner.

Temple was found guilty in trial and sentenced to Life in prison.  No argument can be made that the prosecution deliberately violated the law to cause a mistrial because they believed they were losing.  That would be the equivalent of arguing that James Harden should have been called for traveling in Monday's 122-76 blowout, and therefore, the Spurs were the actual winners of the game.

If Ogg is going to dismiss a case every time a prosecutor is found to have done something wrong in a reversal, she's going to be firing a lot of prosecutors and dismissing a lot of cases over the next four years.  I don't foresee that really happening, because Ogg is smart enough to know that cases sometimes get reversed as part of the evolution of case law.

But I do predict that Ogg is going to be regurgitating her statement on Yetman in the near future.  She wasn't talking about his case so much as she was providing foreshadowing of what she is about to do on Temple.

Friday, April 28, 2017

Racehorse Haynes

Richard "Racehorse" Haynes passed away this morning.  In today's world, the term "Legend" is thrown around a little too often for my taste, but it was a term that couldn't be more appropriate in describing Mr. Haynes.    For anyone who has had even a passing interest in Texas Criminal Law over the past sixty years, his name was synonymous with, quite simply, being regarded as the Greatest Criminal Defense Attorney. Period.

Basketball had Michael Jordan.  Texas Law had Racehorse Haynes.

When I was in Junior High up in Bryan, a friend of mine's father died, and his wealthy family ended up in a huge legal battle over his estate.  When my friend's mother hired Racehorse Haynes, it was the talk of the town.  You would have thought that Abraham Lincoln was coming to argue a case.  If I recall correctly, the case settled relatively quickly after Mr. Haynes' signing onto the case.

It wasn't until much later that it occurred to me that Mr. Haynes wasn't really known for his experience in Probate and Will cases.  I suppose his reputation was all the case actually needed.

His trials across the state were legendary, and he was legendary for winning them.  If you haven't read Blood and Money or any of the literature on the Cullen Davis trial, you are truly missing out on understanding the legal system and traditions in Texas.

I can't say that I ever really got to know Mr. Haynes.  Although he continued practicing law in the CJC right up until a few years ago, we never had anything together.  I would see him in court and on the elevators from time to time, and it always felt like a celebrity sighting.  He was a relatively short man, who was pretty quiet.   If you didn't know who he was when you saw him, you would never guess that you were in the presence of a Marine who fought at Iwo Jima, or Texas' most famous trial lawyer.

I have often said that the greatest thing about working as a criminal lawyer in Harris County, Texas is that you get to walk amongst Giants.  Our prosecutors, our defense attorneys, our crimes, and our stories are simply the best.

Racehorse Haynes was the indisputable King of those Giants.