Most people who read this blog know that I have been a big fan of the majority of new hires under District Attorney Kim Ogg's Administration. Most of these hires, however, came from the Defense Bar, and that has created a logistical issue on a sizable amount of cases.
When a defense attorney leaves his or her defense practice, it is extremely difficult to do so with an instantaneous "clean break." Cases pend for varying amounts of time and if an attorney is leaving his or practice to join the prosecution, the odds are that there will still be some cases pending at the time of that transition.
Since said defense attorney is leaving his or her practice to join the District Attorney's Office (aka "the other side"), it creates a per se conflict of interest for that D.A.'s Office to remain the entity in charge of prosecuting the accused. Whether that defense-attorney-turned-prosecutor actually knows any material information that would be damaging to a former client's case is irrelevant. The appearance of impropriety dictates that the D.A.'s Office recuse itself from that case.
About a month ago, the Ogg Administration announced that it would automatically recuse itself from any First Degree Felony cases previously handled by the Ogg Law Firm, Vivian King, David Mitcham, Nathan Beedle, Joanne Musick, Jim Leitner, John Denholm or any other member of her Administration. Second Degree Felony cases or below were to be handled on a case by case basis, largely dependent upon the wishes of the Defendant. Oddly enough, the First Degree Murder Case of David Temple seems to somehow have been exempted from this, despite John Denholm's work as an attorney on the case. I'll write more on that later.
Based on the Office's decision to recuse itself from those cases, Attorney Pro Tems had to be appointed to handle their prosecutions.
The judges of the individual courts signed off on the Harris County District Attorney's Office's self-recusal, and were then tasked with appointing attorneys pro tem to handle the cases. To my knowledge, almost all of those appointed to the pro tem job came from the Defense Bar. I was appointed on several cases in one court.
Many of the judges, however, pulled from the pool of the 38 former prosecutors whose contracts were not renewed by the Ogg Administration.
This apparently did not sit well with District Attorney Ogg.
According to credible reports, Ogg sent a letter to Presiding Judge Susan Brown, requesting that those 38 former prosecutors not be utilized as attorney pro tems on these cases. Ogg's reasoning was that these former prosecutors might improperly focus their outrage for losing their job on the defendants.
(NOTE: Judge Brown shared Ogg's concerns with all of the District Court Judges, as requested by Ogg. Neither Judge Brown nor any other Judge provided me with any of this information. However, this information quickly spread across the CJC.)
There are several things improper about D.A. Ogg's Letter to Judge Brown:
First and foremost, when the District Attorney's Office recuses itself from a case, it has absolutely no say or influence in who handles the case after that recusal. None. Look at it like a divorce case. A husband and wife are absolutely free to divorce one another, but they don't get to pick who the other marries after them.
Ogg's attempt to influence who prosecutes the case after recusal negates the entire purpose of recusal. The appearance of impropriety is a two-way street. The Office doesn't want to put itself in the position of appearing to be either too harsh or too lenient. That's why the Office simply washes its hands of the case and walks away. Defendants don't get to pick their prosecutor, and neither does a recused D.A.
Second, Ogg's letter expressing her concerns about the prosecutors
she fired whose contracts she did not renew belies a paranoia that seems to be consuming her. Ogg's anxiety about former prosecutors plotting against her administration has risen to levels that make Pat Lykos look like she was zoned out on Xanax. From her bizarre pre-inauguration press conference where she wrongfully accused Justin Keiter, Gretchen Flader and Nick Socias of undermining her future administration's credibility, to letting the leadership of HCCLA know that she was investigating some former prosecutors for unethical behavior, Ogg is really obsessed with the people she let go.
Trying to keep them from being appointed to do a job by an elected Judge who believes they are capable of doing the job is insulting to both the Attorney Pro Tem and the Judge.
And finally, the job of the Attorney Pro Tem is the same as the job of a Prosecutor: to see that Justice is done. It isn't to give a sweetheart deal to one of the Upper Administration's former clients. They are supposed to fulfill the role of prosecutor in this adversarial system. If they cross the line in how they handle their job, it is the duty of the Defendant's new attorney to bring that to light. It isn't the job of the recused D.A.'s Office.
Perhaps District Attorney Ogg should spend less time worrying about what all of these Attorney Pro Tems might do with their prosecutions, and focus a little more time worrying about her own appearance of impropriety.