Friday, March 17, 2017

Kim Ogg's Flaming Dumpster Fire of a Month

We're barely past the Ides of March, and Kim Ogg is already having a month that would make Julius Caesar feel sorry for her.

First off, she began the month by getting blasted in the Houston Press for participating in her March 2nd fundraiser, hosted by David Temple attorney Dick Deguerin.

The very next day, her 1st Assistant, Tom Berg, inexplicably made comments to the media regarding the already-expunged case of prominent attorney Tony Buzbee.  This would seemingly be in violation of Art. 55.04 of the Code of Criminal Procedure, which states:
Art. 55.04. VIOLATION OF EXPUNCTION ORDER.Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.Sec. 3. An offense under this article is a Class B misdemeanor.
The D.A.'s Office seemingly brushed off this apparent law violation by claiming that the Expunction was not valid, and this is where Ogg's personal dumpster fire really started burning.
For those of you who don't handle criminal cases in Harris County, when a person wants a case expunged off their record, the first step they take is determining whether or not the D.A.'s Office will oppose it.  If the expunction is agreed upon, the process is reasonably smooth.  Generally, the Office has been pretty user friendly on expunction cases.  If the person is entitled to the expunction under the law, they agree.  The person who usually makes that agreement is the Office's General Counsel, Scott Durfee.

On March 8th, multiple rumors started flying from multiple sources that there had been large kerfuffle between the Ogg Administration and Scott Durfee overnight.  As per normal procedure, Durfee was the Office's representative who had agreed to Buzbee's expunction, following Buzbee having successfully completed pre-trial diversion under Devon Anderson's Administration.  

Apparently, Ogg was not amused with whatever agreement Buzbee had received and sought to undo it, despite the fact that the Office had already agreed to the expunction.  She allegedly had a Motion for New Trial filed regarding the Expunction, which is legally permissible.  However, the reports were that Ogg wanted Durfee to claim he had acted without authorization in agreeing on Buzbee.   Durfee, understandably, was reported to have refused.

What happened next is not clear.  There were rumors of an affidavit that Ogg wanted Durfee to sign and then varying reports over whether or not he had, in fact, signed it.  There were also reports that Durfee had resigned, or that he had been fired.  The fine details of what actually happened aren't clear, and as of this writing, it isn't even clear whether or not Durfee still works for the Office.

On to the next scandal . . .
Late last week, multiple reports also surfaced that three, young, female prosecutors had filed a sexual harassment complaint against one of the new, high ranking members of Ogg's Administration.  Apparently, an intermediary supervisor did the right thing and filed a memo documenting the allegations.  How Ogg will respond to the allegations remains to be seen.  I have heard rumors that the three females were called to the 6th floor and explained how they must have understood some things "out of context," however, that has not been confirmed.  
And finally, there is apparently a massive dissension in the ranks over an upcoming murder case that Ogg wants filed, against the advice of her upper echelon.  I'm still waiting to see how this one unfolds, but my understanding is that Ogg wants charges filed for publicity's sake, while several of her high ranking prosecutors don't believe the case can be proven and that there is a strong possibility that the soon-to-be accused is actually innocent.  
We shall see.
All of this, coupled with the fact that the D.A.'s Office has suddenly "run out of money" to pay for coveted intake shifts, adds up to a huge disaster.  Courthouse folks who have seen or spoken with D.A. Ogg lately describe her as stressed and overwhelmed.
With all this going on, the description is not surprising.
Keep your chin up, Kim.  Only two more weeks until April.

Tuesday, March 7, 2017

Episode Two: Attack of the Clowns -- a One Act Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston.  [INTERIOR] The Imperial Throne Room.  A shrouded figure peers over a desk, looking over important documents.  The door opens and an Imperial Officer shuffles in.  The shrouded figure looks up.

SHROUDED FIGURE:  What is it, Corporal Leitner?

CORPORAL LEITNER:  I'm sorry to interrupt you, Empress Ogg.  I know you are busy reviewing the Temple case.

EMPRESS OGG:  I'm not reviewing the Temple case, I'm looking at cases that I want to have Vice-Admiral Berg talk to the media about.

CORPORAL LEITNER:  Wait.  Aren't those the expunged cases?  I don't think we are allowed to speak about cases that are expunged.  I thought talking about an expunged case was a 3rd Degree Felony.

EMPRESS OGG:  Silence!  "Expunged" means "talk a lot about" in Latin.  Everyone who went to law school knows that, Corporal.  Hmm.  This Buzbee case looks like a good talking point . . .

CORPORAL LEITNER:  You are letting Vice Admiral Berg talk to the media?  Empress Lykos never let me talk to the media when I was Vice Admiral.

EMPRESS OGG:  Can't imagine why . . .

CORPORAL LEITNER:  What do you mean?

EMPRESS OGG:  Nevermind, was there something you needed, Corporal?

CORPORAL LEITNER:  Yes, your majesty.  We must talk about the Intake System for the Death Star.

EMPRESS OGG:  What about it?

CORPORAL LEITNER:  We can't afford it anymore.

EMPRESS OGG:  What do you mean "we can't afford it?"

CORPORAL LEITNER:  Well, apparently after you took over and did things the way you wanted, we failed to calculate a budget for the Intake System.

EMPRESS OGG:  Do we need it?

CORPORAL LEITNER:  Um, yes.  That is how we get the cases that are what keeps this building running.

EMPRESS OGG:  Dammit.  I barely have enough in the budget to pay for the fifteen Stormtroopers that I require to be guarding me at all times.

CORPORAL LEITNER:  Fifteen?  You have fifteen Stormtroopers on your security detail?  I don't think President Trump has that many people.  Have there been threats against you?

EMPRESS OGG:  No, but it looks rockin' cool.  Kind of like Beyonce when she did the Super Bowl.

CORPORAL LEITNER:  For thirty years, the D.A.'s Office had had someone working intake 24/7.  We can't just stop doing that.

EMPRESS OGG:  You're right.  Just tell the Jawas that they have to work intake for free as part of their jobs.

CORPORAL LEITNER:  Jawas?

EMPRESS OGG:  Jawas.  ADAs.  Whatever.  And let's just get one of our supervisors to just sit there and do nothing while they do all the work.  Somebody like Jabba.

CORPORAL LEITNER:  The Hutt?

EMPRESS OGG:  No,  Denholm.

THE INTERCOM ON EMPRESS OGG'S DESK BUZZES.  EMPRESS OGG HITS A BUTTON.

EMPRESS OGG:  Go for Kimbra.

VOICE:  Empress Ogg, Jar Jar Rogers from the Chronicle is here to see you for your interview.

EMPRESS OGG:  Send him in.

A SLIDING DOOR ENTERS, and JAR JAR ROGERS comes bouncing into the room.

JAR JAR:  Oh, Mooey, Mooey, Boss Ogg!  Meesa so happy for happy positive article writing time about you today!

EMPRESS OGG:  It is always so good to see you, Jar Jar.

JAR JAR:  Meesa so happy to be writing about bestest D.A. Ever!

CORPORAL LEITNER:  Are you brainless?

JAR JAR:  Meesa know how to write!

CORPORAL LEITNER:  The ability to write for the Chronicle does not make one intelligent.

JAR JAR:  Mooey mooey, Boss Ogg, peoples be saying yousa be up to no good.  They saya you going to dismissa David Temple because you big buddy with Datha Deguerin.

EMPRESS OGG:  Nonsense, Jar Jar.  That is just angry talk from the old Jedis that I got rid of under Order 38.

JAR JAR:  Dose Jedis useda be my friends.

EMPRESS OGG:  They are very bad people, Jar Jar.  They say very bad things about me.

JAR JAR:  So do the Jawas!

EMPRESS OGG:  Silence!  That's not the point!  The point is that I am launching very thorough investigations into those Jedis who might have said bad things about me.

JAR JAR:  Is that againsta the law?

CORPORAL LEITNER:  You would think . . .

EMPRESS OGG:  It needs a thorough investigation.

JAR JAR:  Like yousa investigating David Temple?

EMPRESS OGG:  Um, sure.

JAR JAR:  Meesa want to get a picture of you investigating David Temple file!  Can meesa get a picture with you and the file?

EMPRESS OGG:  Of course!

AWKWARD SILENCE

JAR JAR:  Where da file?

EMPRESS OGG:  Um,  I think right now I have it in Corporal Leitner's office.  Right, Jim?

CORPORAL LEITNER:  Yes, my lord.

EMPRESS OGG:  Very important that the Temple File be kept in a safe place.  That's why we have Corporal Leitner's weights sitting on it so that nobody moves it.

CORPORAL LEITNER:  That's right.

JAR JAR:  Me sees!  Only Big Jimbo be strong enough to lifta the weights offa the Temple File!

EMPRESS OGG:  Exactly, Jar Jar.  We wouldn't want anyone else to be able to look at it right?

JAR JAR:  That's why meesa and the Chronicle say you da bestest DA ever!

EMPRESS OGG:  And that's why I say you're the best newspaper reporter ever, Jar Jar!




Thursday, March 2, 2017

Why the Appearance of Impropriety Matters

Back in 2009, when I was first starting my career as a defense attorney after nine years as a prosecutor, one of the first courts I received an appointment in was the 338th District Court.  At the time the chief prosecutor in the 338th was Craig Still (who now works at the Public Defenders Office).  After I had read over the new case that I had just been appointed on, I went to discuss it with Craig.

When I started to hand him the case for him to review, he stopped me and politely pointed out that he was going to let his Two handle the case and he would not be involved.  He wasn't being rude.
The reason he didn't want to involve himself in any case I was handling was because Craig was (and is) one of my best friends.

Not that Craig would have ever done anything inappropriate regarding a case based on our friendship.  Nobody who knows him or his reputation in the courthouse would have ever accused him of such a thing.  However, Craig was savvy enough to realize that there was no need to create even an appearance of impropriety.

And that was just on a crack pipe case.

I've thought about that moment in the 338th many times over the past few months as I've watched Kim Ogg steadfastly refuse to remove herself and the Harris County District Attorney's Office from the handling of the David Temple Murder case.  Maybe Ogg's motives are pure.  Maybe they aren't.  Whatever her reasoning is, our new District Attorney certainly has not helped herself in avoiding an obvious appearance of impropriety.

The purpose of this particular post isn't to address whether or not David Temple is guilty of murder.  Volumes have been written about the facts of the case itself.  I would suggest reading Kathryn Casey's Shattered if you want to familiarize yourself with the details, or some of Craig Malisow's articles about the case in the Houston Press.  I will freely admit that there are many who are much more knowledgeable about the details of the murder than I am.

Additionally, the purpose of this post isn't to address what Kelly Siegler did or didn't do during the trial that resulted in Temple's murder conviction in 2007.  The Court of Criminal Appeals has ruled that Temple deserved a new trial and no matter what happens from here on out, Kelly Siegler won't have any involvement in the case.  For all intents and purposes, the case is at Square One from a legal standpoint.  Although advocates for David Temple like to drop Kelly's name in hopes of inciting some level of outrage on David's behalf, the reality is that she is no longer relevant to the future of the case.

The ball is completely in Kim Ogg's court.  Unfortunately, she seems to be making every effort to demonstrate that the one person in Harris County who shouldn't be handling the case is Kim Ogg.

As Kim Ogg took office on January 1st, the Temple case was a very hot topic.  The Court of Criminal Appeals had just reversed the case in late November and Ogg had already raised eyebrows with her earlier announcement that Temple Defense Team members, John Denholm and Steve Clappart, would be joining her administration.  That's the two of them here with Casie Gotro and Stan Schneider, receiving an award for their work on Temple's defense team from the Harris County Criminal Lawyer's Association.

On January 1st, Ogg gave her inauguration speech, where she added fuel to the impropriety fire by thanking Temple's trial counsel, Dick DeGuerin, for the influence he had been in her own legal career.  DeGuerin had been calling for Temple's case to be dismissed from the moment he learned it had been reversed.

Ogg was also not done any favors with Temple attorney Stanley Schneider talking to the press and explaining how Ogg would be proceeding with the case.  Schneider expressing how "comfortable" he was with whatever her decision would be sounded as if he already had a strong indication of what that decision would be.

Additionally, Ogg issued an edict about a month ago that the Office would recuse itself from all first degree felony cases previously defended by anyone in her upper echelon (which would presumably include John Denholm).  Oddly, the Temple case was mysteriously left out of that recusal.  Ogg had initially told the Houston Chronicle that she would have a team looking at the case, but later retracted that statement, saying she and only she would review the case.  That's a pretty daunting task considering she would presumably be reading an enormous offense report, a full trial transcript, listen to multiple witness statements, not to mention re-interview those witnesses, read a writ hearing transcript and review all the corresponding documents associated with the case.  And further, it would be expected that she would also talk to the detectives involved in the case and (gasp!) probably even the original prosecutors.

The most blatant appearance of impropriety came last week when it was revealed that DeGuerin was headlining a fundraiser for Ogg on the eve of Temple's next court date -- a date when Ogg was scheduled to announce her decision about retrial.  In addition to DeGuerin, former Temple attorney Paul Looney was also on the host committee.  This was so egregious that even Brian Rogers was forced to write a mildly negative article about Ogg in the Chronicle.  Of course, in typical Brian Rogers style, he buried the mention of the controversial fundraiser somewhere around the tenth paragraph of his article.

The encouraging news in Brian's article was that Ogg was still open to the idea of recusing the Office from the case.  She should.  I've heard from former prosecutors, judges, defense attorneys, and prosecutors and judges in other counties, who are astounded that she hasn't done so.  I've even heard from members of Ogg's own upper Admin who have expressed their belief that the Office should recuse itself.  And by the way, I'm talking about upper Admin that she brought in with her on January 1st.

I'm hopeful that Ogg is finally starting to realize what message she is sending to the public about her definition of Justice:

It is a message that there will be no checks and balances when it comes to what Kim Ogg wants to do with her administration.

It is a message that Kim Ogg has no interest in the advice of the legal community around her.

It is a message that the her concerns for the family members of victims of violent crimes are not very high on her priority list.

It is a message that the wealthy client who can afford a lawyer like Dick DeGuerin can get special treatment.

It is a message that the right connections can make even a murder case go away.

Some defense attorneys are rallying behind the idea of Ogg biting the bullet and just dismissing the case, because, you know, "Kelly Siegler."  Others are pointing out that the Disciplinary Rules which govern attorneys in the State of Texas do not require Ogg to recuse herself.  Many have correctly pointed out that donations from criminal defense attorneys are commonplace for judges and elected District Attorneys.

But the David Temple Murder case isn't just any case.  And Dick DeGuerin isn't just any defense attorney.

I started this blog post a couple of days ago, but I didn't have time to sit down and finish it until tonight, 6:45 p.m. on Thursday, March 2, 2017.  As I wrap up this post, the family of Belinda and Erin Temple sit at home, wondering whether or not the man who was once convicted of murdering their loved one will even face trial again.

And the District Attorney who will make that decision is at a party in her honor, hosted by that same man's defense attorney.

Is there really any question as to what kind of message that sends?