Wednesday, February 15, 2017

Kim Ogg's Letter to the District Courts

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.

23 comments:

Anonymous said...

Great post! Thank you for getting this info out.

Anonymous said...

God I hope somebody sues her. Those depositions would be solid gold. This is the Gang That Couldn't Shoot Straight on steroids.

Anonymous said...

The rules don't apply to Ogg or her new hires, remember? She's got a lot of promises she's got to keep for those donations she received. Harris County needs to remember that they elected the fox to guard the henhouse. She isn't here to see that justice is done. She's here to fill an agenda.

Anonymous said...

The easiest way for Ogg to get ahead of this conversation
is to produce communication from her office to the administrative judge and make them public. That way we can impartially vet the information she communicated. Then, if she wants, vehemently deny any response or that she knew about it. The real question is "what position will she take?".

Anonymous said...

So can we assume that this was done with the blessings of the General Counsel and the Ethics Czar?

Anonymous said...

As a compromise, she could ask Ligon's office up north to handle the cases...lol.

Anonymous said...

Ogg has made clear that ethics has nothing to do with her or her administration. She is a politician- that's all she cares about. It's no secret how she feels about her prosecutors and not too much of a secret how they feel about her.

Anonymous said...

Apparently some of the judges have chosen to ignore that letter. Two of the fired prosecutors were sworn in today to handle a death penalty case because Ogg had to recuse herself. That case is going to cost the DA's office a fortune, and not a small one.

Anonymous said...

I'm sure she will find a way to blame Devon for that and say these former prosecutors are running up her bill out of spite. Just wait. It's coming.

Anonymous said...

On another note, Ogg is bad for business. First, firing 38 experienced criminal lawyers added to the pool of available defense lawyers. Next with this marijuana diversion on the streets no lawyer is needed. No motions to suppress, no old style pre trial diversion contracts, no deferred adjudication. Less work for us with more competition.

Anonymous said...

I wondered how long it was going to take the defense bar to realize that.

Anonymous said...

"Bad for business" is not a valid reason to slow down reform.

Murray Newman said...

5:30 p.m.,
Agreed.

Anonymous said...

Anon at 1:56

I assuming that the condescension was unintended, so I will ignore.

The problem with the blanket policy is because the drug dealer conceivably could skate because of that policy. But how many 18-25 year olds need to be relegated to low earning jobs for the rest of their lives because they have a one-time drug charge for being stupid enough to have a pipe in their car?

What we need is some balance. And, I am sorry, but until Devon started first chance, there was none.

Anonymous said...

It is not a blanket policy. There are people that will be considered ineligible. For example, if they are on bond or probation, not eligible. Also, If there is intent to deliver, not eligible.

Anonymous said...

2:18,

We are aware of that. But often, you don't see beyond the police report.

Young people do stupid things, even slinging weed. The cost to society by not giving them a chance to start over is too high (no pun). Given a chance, 855 will not be back.

The 15% who will be back? Most of the defense bar usually doesn't waste our time asking.



Anonymous said...

Do you know how much 4 ounces of weed is? Have you ever seen that much spread out? It is NOT a personal use amount. There is no good reason to have that much just laying around. 4 ounces is plenty evidence of delivering. Giving a free pass to Class A amounts is a joke.

Anonymous said...

Can someone please point out to the administration that there is no such charge as possession with intent to deliver marihuana? It doesn't exist. So unless the drug dealers are actually delivering, it will just be plain old POM and go un-prosecuted.

Anonymous said...

3:14pm. I don't disagree with you, was just responding to correct the "blanket policy" comment. There is always also DADJ for the young person slinging dope.

7:52pm. No, if there is evidence of intent to deliver POM will be filed.

Anonymous said...

Thank you, Anon 7:52pm, for knowing the law. And I mean that sincerely. It's horrifying the extent to which the new DAO administration doesn't know or care about it.

T said...

On another note, how can one get around a prosecutor who refuses to transfer a case to the Felony Mental Health Court?

Anonymous said...

Cases have to be accepted to mental health court. They can't just be transferred.

Theodis Butler said...

The fact that Judge Brown used "fired" prosecutors to handle cases could be seen as impropriety by the public.