The courtroom will doubtlessly be packed with media looking for their first glimpse of who will be handling the case on behalf of the Harris County District Attorney's Office under the brand new Kim Ogg Administration. They will also be looking to see if the tone of tomorrow's setting gives any clue to what the Ogg Administration plans to do with the case.
In the wake of the original Findings of Fact handed down by visiting Judge Larry Gist, Temple's attorneys, Casie Gotro and Stanley Schneider, immediately began lobbying then-District Attorney Devon Anderson to recuse the Harris County D.A.'s Office from handling the case. Things have changed substantially since Gotro and Schneider made that request. The incoming Ogg Administration elected not to renew the employment contracts of every single prosecutor who handled anything involving the David Temple case -- with the exception of prosecutor Andrew Smith.
As almost all of the prosecutors who worked on David Temple's case were swept out of the Office, the Ogg Administration simultaneously ushered in three key figures who were central to Temple's defense: Jim Leitner, Steve Clappart, and John Denholm. In doing so, the Ogg Administration seemed to be very open to the idea of not retrying David Temple for shooting his pregnant wife in the head with a shotgun, killing her and their unborn child.
However, the fact that the Ogg Administration brought John Denholm on board is the exact reason why now the Harris County District Attorney's Office should recuse itself from the David Temple case and let another prosecutorial agency handle it. The reasoning is quite simple: although Leitner and Clappart had involvement in the Temple defense, they weren't acting as agents of Temple's defense team -- at least, not on paper. Although Clappart certainly didn't mind standing next to his friend Denholm at the Temple Defense Team press conference, he was technically acting as an investigator for the D.A.'s Office under the Lykos Administration.
Denholm, however, is a different matter. Denholm actually acted as an agent for Dick DeGuerin in defense of David Temple. How do we know that? Because Steve Clappart was nice enough to include that information in his highly questionable Capital Murder warrant for Cody Ray Ellis.
Hell, Denholm is such a member of Team Temple that he filed a grievance with the State Bar against me for blogging about the case. The grievance was rejected.
Since Denholm was a party to the Temple Defense Team, his new employer, the Harris County District Attorney's Office, should be recused from handling any further matters regarding the Temple prosecution. There is a per se conflict of interest. By way of example, when Jim Leitner left his defense practice in 2009 to join the Lykos Administration, the Office voluntarily recused itself from the cases he had handled due to that same type of conflict of interest.
In this instance, however, don't look for Schneider, Gotro or DeGuerin to be pressing for the Office to recuse itself under Kim Ogg. They couldn't be more pleased to have her in the driver's seat. What could be more favorable to Team Temple than hiring three people into the upper Administration who were on record as believing Temple was wrongfully accused? Even more encouraging, Ogg even gave a shout out to DeGuerin in her inauguration speech.
So far, Kim Ogg has expressed much more interest in prosecuting former prosecutors who angered her than prosecuting a man charged with murdering his pregnant wife.
I anticipate that Team Temple will argue with all its might that there is nothing wrong with the D.A.'s Office continuing on with the Temple case. They will do everything they can to invoke the image of Kelly Siegler and an unfair trial as they lobby for a dismissal. Unfortunately for Temple, a reversal is not the same thing as a dismissal. Cases get reversed and sent back for retrial on a fairly routine basis. They don't simply go away because an appellate court reversed them.
The irony is that now David Temple must proceed without the specter of Kelly Siegler. She is no longer a factor in the Temple Trial. The case was reversed in a narrowly split decision, and now Team Temple has to argue the case itself on its own merits. Their efforts to paint Kelly as the true villain in the case are no longer relevant.
Nowhere in their decision (or the Gist Findings of Fact) did the Court of Criminal Appeals indicate that Temple was wrongfully convicted. Nowhere in that decision (or the Gist Findings) did anyone indicate that the ludicrous Capital Murder warrant that Clappart and Denholm wrote was credible. Nowhere in that decision did it say anything other than David Temple was entitled to a new trial.
The State of Texas vs. David Temple is back to Square One.
All the evidence is still there and part of the record -- even those witnesses that DeGuerin would later regret calling to the stand on behalf of the defense (including David Temple, himself). All of that is available to the prosecution for retrial. The first time the jury heard that evidence, they had no issue in quickly convicting Temple and sentencing him to Life in Prison. The chance that another jury would do the exact same thing is substantial -- with or without Kelly Siegler.
There is a reason that Team Temple is begging that the case just be dismissed. What's a free murder amongst friends?
Dismissing the case against David Temple would be an absolute dereliction of duty on the part of the new Administration. Jim Leitner, Steve Clappart and John Denholm's roles in the upper hierarchy would scream of impropriety. It would send a message of Justice truly being for sale.
All of this could be avoided by simply recusing the D.A.'s Office and asking the Attorney General's Office to handle the case instead.
The Ogg Administration should recuse itself from the David Temple case, not out of a duty to David Temple, but out of a duty to the citizens of Harris County. The history of her Administration began being written on January 1st, and how she responds to this case will cast a long shadow. As she stated in her inauguration speech, she owes many people many things for her success.
But she owes the citizens so much more.
And that includes Belinda and Erin Temple.