Tuesday, January 24, 2017

Good Additions to the Ogg Administration

The Ogg Administration has continued to make some positive additions in the personnel department over the past two weeks.

On January 11th, Ogg announced that retired-178th District Court Judge David Mendoza was joining the Administration as the head of the newly created Office of Professional Integrity.  As regular readers of this blog know, I'm a big fan of Judge Mendoza.  Although he had previously been a judge, I had never met him before he won the 178th bench in 2008.  I quickly developed a strong respect for him after appearing before him in his court.

Judge Mendoza is a quiet and thoughtful man who will be a tremendous asset to the Office in the days to come.  I'm glad to see that he'll remain a regular in the CJC as well.

Today, the Office announced two other solid additions to the CJC team with the addition of veteran defense attorney (and actual veteran) Tom Berg. As noted in Ogg's e-mail to the staff, Tom is a defense attorney and former Federal Public Defender, as well a retired colonel in the United States Army reserve.  He is joining the office as "First Assistant over the Trial, Appellate, and Special Crimes Bureaus."

Based on the specific title, I'm not certain if this means he will be the First Assistant in the same role that previous First Assistants have held.  Either way, he's a good choice.  He is highly respected by his peers and he is passionate about the Criminal Justice System.  He's also an experienced leader who will do well with the troops.

The other addition is Ruben Perez, a former Harris County and Federal prosecutor.  I don't know Ruben personally, but we seem to have a lot of friends in common.  Everything I've heard about him has been extremely positive.  His resume is impressive.  He is a 25 year veteran with the Feds who headed Human Trafficking, Civil Rights, and the Organized Crime Drug Enforcement Task Force.

He is taking over as head of Special Crimes and his resume seems to indicate that this will be a great match for him.

As I've written before, the personnel choices made by Ogg thus far are actually pretty strong (with three notable exceptions).  Hopefully the Office continues in this positive trajectory.

Saturday, January 14, 2017

HCCLA and the Former Prosecutor

As I've always said (and truly believed), Harris County, Texas is home to some of the greatest criminal litigators in the Nation -- on both the prosecution and defense side of things.  Therefore, it stands to reason that Harris County would also be home to one of the best (and largest) criminal defense lawyers' association in the form of the aptly named Harris County Criminal Lawyers' Association (HCCLA for short).

Historically, HCCLA has been a highly respected organization with a Who's Who of distinguished and prominent criminal defense attorneys, as well as Lloyd Oliver, on the list of past presidents.  They sponsor numerous CLE seminars that are free to members, have a Strike Force to help attorneys who find themselves on the wrong side of a contempt charge, and a Christmas Party that is the social event of the Criminal Justice Season.

And then there is the Listserve.

In theory, the Listserve is a message board for attorneys to assist each other with legal issues or to ask for advice.  Oftentimes, that actually is what it is used for, and longtime defense attorney Troy McKinney serves as HCCLA's greatest asset when it comes to giving outstanding legal advice to those who seek it.  The Listserve is more often used for gossiping and complaining about prosecutors and judges, and although everyone on the Listserve is sworn to utter secrecy, information leaks out of it like water through the Titanic.

When I left the D.A.'s Office, Mark Bennett and Tyler Flood (who is, coincidentally now HCCLA's President) strongly encouraged me to join the Group.  I did, and I was glad that I did.  I became involved and after a year or so, I ran for the Board and won.  A year or so after that, incoming President Todd Dupont asked me to run for Secretary, which I did and also won.  Despite having a baby on the way and dealing with chemotherapy, I did the best I could with the position.  I co-hosted HCCLA's weekly television show, Reasonable Doubt.  I even planned a CLE from my hospital bed with my then-friend and President-Elect Carmen Roe sitting in the room, helping me.

But my position on the Board didn't sit well with some of the more senior members of HCCLA.  One in particular really didn't like me working as a legal consultant on Cold Justice.   When I ran for Vice President the following year, my good friend Carmen and some others made sure I had opposition.  Incoming President Roe wrote a mass email encouraging people to vote for Mark Bennett over me.  Somehow, I wasn't included on the e-mail and didn't find out about it until somebody else told me.  To this day, I've never felt more betrayed by a closer friend.  We haven't spoken since.

Mark won the election, and I was the first to congratulate him.  I then resigned from HCCLA over his encouragement not to.  I knew it looked like sour grapes, but I just couldn't bring myself to pay membership dues to an organization run by Carmen Roe and others who clearly didn't want me involved in it.

That was three years ago.  I didn't write about my reasons for leaving then.  I still thought that HCCLA was a good organization.  It just wasn't for me -- clearly.  Despite my personal experience, I still encouraged new criminal defense lawyers to join.

But I was reminded of my negative experience with HCCLA this week after the organization's treatment of recent HCDA alum, Nathan Hennigan.

Hennigan, who was one of the 38 prosecutors fired not offered positions under the Ogg Administration, was vocal in the wake of his termination.  He was a senior prosecutor and a District Court chief with a good reputation with the vast majority of the Defense Bar. Shortly after Nathan's termination, the hosts of Reasonable Doubt invited Hennigan to appear on the show and share his thoughts.

The next day, the hosts told him they had to rescind their invitation because someone high up in HCCLA didn't think he needed to be on the show.  The reason he was given at the time was that he wasn't an actual member of HCCLA and therefore their rules prohibited him from being on the show yet.

Of course, that whole thing about having to be a member of HCCLA to be a guest on their show is a bunch of crap.  I should know.  Not only was I one of the hosts on the show for a good chunk of time, I was also invited to be a guest on the show two weeks ago.  As noted above, I'm not a member, either.

Hennigan applied to become a member of HCCLA and his membership came up for a vote before the Board of Directors this week.

His membership was rejected.  When he shared the rejection on his Facebook page, the CJC community went nuts.  Several Board members posted that they had voted for him, although nobody gave any details as to what had happened.  Other members expressed outrage that Hennigan's membership hadn't been approved and encouraged him to reapply.

Obviously I wasn't there, but as I mentioned before, confidentiality within HCCLA is about as leak-proof as the Titanic.  There has been word that a senior defense attorney sent one of his lackeys to convey the message that if Hennigan were granted membership, the senior defense attorney would quit the organization (God forbid).  What happened after that is anybody's guess.

The thing that is interesting about this is that nowhere in HCCLA's Mission Statement does it mention that it only helps defense attorneys that are universally loved.


And apparently, in HCCLA, some members are most definitely more equal than others.

At the end of the day, there are plenty of us who are not members of HCCLA that are doing just fine on our own.  That doesn't mean it isn't a good organization, but it isn't critical to survival.  The Texas Criminal Defense Lawyers' Association offers outstanding support and help like HCCLA does, just without the petty backroom drama.  The Houston Bar Association also has a drama-free Criminal Law section.  As of this writing, my understanding is that President Flood is much more concerned about figuring out how the details of the Hennigan Vote got leaked rather than the larger issue of why one attorney gets to dictate membership.

Ultimately, I'm not sure why any former prosecutor would want to be a part of HCCLA if this is going to be the example the organization sets. 


Monday, January 9, 2017

Kathryn Casey's Letter to Kim Ogg

In case you missed it, on Friday, the Houston Chronicle ran an open letter from True Crime writer, Kathryn Casey, to Harris County District Attorney, Kim Ogg.  Casey, author of the book Shattered which profiled the Temple Case, reached out expressing her concerns with the D.A.'s Office refusal to recuse itself from the case.

The article is worth a read for a couple of reasons.  First, it contains the entirety of Casey's letter, in which she logically rebuts the allusions that Team Temple has been making about having "proof" that the time frame involved with the case exonerates Temple.  Second, it clearly articulates why there is such a tremendous appearance of impropriety if Ogg doesn't recuse the Office.

Casey, who attended the trial, has a much better grasp of the details of the case than I do and she also can't be accused of having any personal stake in the outcome.  She is writing based on logic.

Unfortunately, it doesn't appear that Ogg is listening to anyone other than Team Temple when it comes to how to handle the case.

Friday, January 6, 2017

Episode One: The Phantom Kimness - A One Act Sci-Fi Play

SCENE:  A small Y-Wing transport ship flies toward a Space Craft Base.  [INTERIOR] A human inside a healing Bacta tank is awakened by associate droids.

DROID:  Lord DeGuerin, Admiral Schneider has arrived.

DEGUERIN:  Send him in, Jim.

The DROID retreats through the doorway, as ADMIRAL SCHNEIDER enters, and kneels.

SCHNEIDER:  Lord Vade . . .

DEGUERIN:  DeGuerin.  It's Lord DeGuerin.  This blog doesn't have the money to pay royalty fees.

SCHNEIDER:  Oops.  Sorry.  Lord DeGuerin.

DEGUERIN:  Rise, Admiral Stanley.

SCHNEIDER:  You wanted to see me, your worship?

DEGUERIN:  Yes.  You've been making some statements to Jar Jar . . .

SCHNEIDER:  Binks?

DEGUERIN:  No, Rogers.  With the Chronicle.

SCHNEIDER:  I think his name is Brian.

DEGUERIN:  Whatever.  Anyway,  you've been making statements about the Temple case.

SCHNEIDER:  Yes!  I thought with Empress Ogg finally taking over . . .

DEGUERIN:  Silence!!

SCHNEIDER:  Yes, my lord.

DEGUERIN:  You made a lot of statements to Jar Jar.

SCHNEIDER:  Brian.

DEGUERIN:  Whatever.  You made a lot of statements to the Houston Chronicle about Empress Ogg's plans regarding the Temple case.

SCHNEIDER:  Yeah, I basically told them how she was going to spend the next couple of months acting like she was really thinking hard about what to do and then dismiss it.

DEGUERIN:  Fool, what part of "Phantom" in Phantom Menace do you not get?

SCHNEIDER:  I don't understand.

DEGUERIN:  It is supposed to be a secret, you imbecile.

SCHNEIDER:  It is?  I thought when she hired Clappart and Denholm that we were all totally out in the open . . .

DEGUERIN:  Silence!

SCHNEIDER:  Sorry!

DEGUERIN:  Empress Ogg does not wish to reveal herself to the Je --

SCHNEIDER [Interupting]:  . . .  General public (remember licensing).

DEGUERIN:  Oh.  Thank you.  Yes, General public.  She does not wish to reveal her plans to the general public yet, or there may be dissent.

SCHNEIDER:  Dissent?  Why would there be dissent?  Why would anyone fail to support the Empress if she were to dismiss the Temple case?

DEGUERIN:  Apparently, there are some fools who believe his case should be retried.

SCHNEIDER:  Have we not vilified Siegler enough?

DEGUERIN:  Of course we have.

SCHNEIDER:  What about the alternative theory of pinning it on the disgruntled high school children?

DEGUERIN:  That was a more foolish idea than adding Ewoks to Return of the Jedi.

SCHNEIDER:  But we had General Gotro add Finding 37 . . .

DEGUERIN:  And she got caught.  That was foolish.

SCHNEIDER:  I told her not to do it.

DEGUERIN:  I thought you said it was an accident.

SCHNEIDER:  Whatever.  Bygones.

DEGUERIN:  The fact of the matter is that we must continue to operate in complete secrecy.  No one can know what we are doing on the Temple case.

SCHNEIDER:  I'm pretty sure everyone knows at this point.

DEGUERIN:  Silence!  We have the time to make this all go away after we are done.

SCHNEIDER:  But the Empress said in her campaign ads that she was here for the victims . . .

DEGUERIN:  She said she would never jail a rape victim.

SCHNEIDER:  That's what I mean.

DEGUERIN:  This isn't that type of case.

SCHNEIDER:  Oh.  But what about other victims?

DEGUERIN:  We've made the phone number for Victim Witness unlisted.  It will be another three and a half years until the next election . . .

SCHNEIDER:  Wait, I forgot that she has to run for re-election.

DEGUERIN:  It's okay.  So has she.

The One Woman Review Team

Contrary to initial reports in yesterday's Houston Chronicle that Kim Ogg would be presiding over a review team consisting of prosecutors Andrew Smith and Donna Cameron, as well as Temple Defense Team Surrogates, John Denholm and Steve Clappart, the paper is now reporting that District Attorney Ogg will be reviewing the Temple Case solely by herself.

Interesting choice.  The reason cited by Ogg is that she needs to review it because of the controversial actions taken by then Assistant District Attorney, Kelly Siegler.

Unfortunately for Ogg, that makes absolutely zero sense.

The Court of Criminal Appeals has already reversed the case and sent it back for retrial after evaluating Siegler's actions on the case.  As I noted in my last post, she is no longer a factor in what happens on the case from here on.

If there is sufficient evidence to proceed on the case, then it should proceed.  If there is not, then it shouldn't.  Plain and simple.  Unless Team Temple wants to make the argument that Kelly Siegler was the actual killer, there is no longer any involvement that she has in the case.

So, why would Kim Ogg keep it herself?

Well, as the elected District Attorney she certainly has that right, I suppose.  However, it sure seems suspicious.  It seems even more suspicious when you have Temple Defense Team Leader, Stanley Schneider, acting as Ogg's spokesperson.

Schneider said he thinks it will take her [Ogg] at least two months just to read all of the information.
"And then comes the hard part, she has to digest it all," he said.  "She has to come to her own conclusions."
Schneider said he and Temple are comfortable with Ogg taking the time to personally review the file.
"If she's comfortable with it, I'm comfortable with it," he said.
No mention was made of whether or not Stanley kept a straight face during the interview.  Mental note:  never rob a bank with Stanley.  Why on earth is he so well informed on everything that Ogg will be doing?  It's almost like they are on the same side or something.

Here's a small tidbit, when the Defense Attorney is telling you everything that the District Attorney is going to be doing, that usually means that the District Attorney is doing everything the Defense Attorney wants her to be doing.

Think about it.  So, Stanley and Temple are "comfortable" with whatever Kim decides, are they?  Will that be true if Kim decides that Temple needs to just plead guilt to murder?

Of course not.

Stanley and Temple declaring their high level of comfort with Ogg's decision seems to strongly indicate that they already know what that decision is.  Ogg's rejection of having a panel review means that there will never be the unpleasant possibility of one of the panel members later telling somebody what factors went into making a controversial decision.

By acting as a One Woman Review Team, Ogg can simply do whatever she pleases, and then give a stoic, Harry S Truman-esque speech about how the Buck Stops With Her, and she will shoulder criticism in the name of Justice.

That would be more impressive if any of us actually believed she was reviewing it with an open mind.

As I, and others, have noted, Ogg can avoid the massive massive massive massive appearance of impropriety by just asking another agency to review the case in her stead.  She has now rejected that.

Kim seems more than willing to tarnish her legacy before it begins.

Her One Woman Review Team absolutely reeks of the fix already being in.


Tuesday, January 3, 2017

Kim Ogg and the David Temple Decision

David Temple returns to court tomorrow morning (January 4th) in the 178th District Court to check on the status of charges against him for murdering his 8-month pregnant wife, Belinda, in 1999.

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.