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.