Tuesday, May 22, 2018

Judge Marc Carter wins 2018 Jesse Brown Distinguished Leadership Award

Congratulations are in order (yet again) for 228th District Court Judge Marc Carter, who has been named the recipient of the 2018 Jesse Brown Distinguished Leadership Award by the NAACP Veterans Task Force.  The Award is awarded to an American who works diligently to ensure that all veterans are provided the benefits and service they have earned through the honorable service to their country.

As noted in the Harris County District Courts' press release, Judge Carter voluntarily presides over the first Veterans Treatment Court Program established in the State of Texas.  It was created for veterans in need of mental health and drug treatment by diverting veterans with felony and misdemeanor offenses directly into treatment courts, reducing jail time costs and recidivism.  He has run the Veterans Court since its creation in 2009.

For those of us who have the opportunity to practice in front of Judge Carter, the award comes as no surprise.  He consistently proves himself to be one of the most compassionate and fair judges in the Harris County criminal courts.  In 2016, he was awarded the William H. Rehnquist Award for Judicial Excellence.  In short, he's an amazing judge and human being.  

The Award will be presented to Judge Carter on July 17, 2018 at 12:30 p.m. at the Henry B. Gonzalez Convention Center in San Antonio.

Congratulations, Judge Carter on this well-deserved honor!

Sunday, May 20, 2018

Judge Frank Price

Judge Frank Price passed away today after a hard-fought battle with cancer.  He was a wonderful man and judge.  I had the honor of trying cases in front of him and appearing before him on many occasions. 

He was 79-years-old at the time of his passing, but I would venture to say that Judge Price had more street cred than probably any lawyer appearing before him.   He knew the law, but more importantly, he knew people.  He knew how to treat people and he did so with kindness and fairness. 

Judge Price's legal career spanned decades although those of us in our mid-40s or younger knew him mainly through his time as a visiting judge.  His obituary tells of an amazing and storied life.
Frank started his legal career as a prosecutor, serving 5 years as a Harris County assistant district attorney, followed by private practice as a criminal defense lawyer. Frank's exhaustive attention to every case and his strong commitment to justice did not go unnoticed. In 1974, Frank became the youngest appointee in history when he was appointed by Gov. Briscoe to serve as the judge of a criminal court, the 209th District Court. Frank was truly born to be a judge. His gracious temperament, knowledge of the law and sense of fairness made people in his court feel that the system of justice was indeed just. Prosecutors and defense counsel both state that they left Judge Price's courtroom wishing that they could try every case in the level playing field of his court. 
Judge Price presided over some of Houston's most famous criminal trials, such as the trial of Lilla Paulus who was convicted of being a co-conspirator in the "Blood and Money" murder of Dr. John Hill in River Oaks. He stood firm in his convictions and guarded the integrity of the system without compromise or regard for self-interest. He had the courage to make the very unpopular decision to grant a new trial in the front-page case of a man who was convicted of abducting and killing his own niece. Judge Price had learned that evidence had been withheld from the defense. In the end, the new trial served the system well, and also brought a second conviction. Judge Price presided in the trial of the notorious "Candyman" who killed Halloween and his young son with poisoned pixie sticks he handed out to five neighborhood children, seeking to gain $31,000 in insurance. In 1981, Gov. Clements appointed Judge Price to serve on the First Court of Appeals, starting his years of service on the appellate bench. Eventually he served as a visiting judge in both trial and appellate courts, serving over 30 years in the Texas State Judiciary. Judge Price personally wrote every appellate opinion himself, with hundreds of published opinions to his credit. His writing beautifully reflected his goal of perfection in both language and reasoning. He was known for mastering tough issues and cutting quickly to the heart of a case by asking a single insightful question. 
Judge Price was also known to know a little bit about magic.
As a judge, he was reserved and shunned attention. It is impossible, but true, that this same man was guilty of trickery and deceit – he was among the greatest practitioners of sleight of hand and close-up magic, performing routinely as a professional magician at Magic Island and many other venues. Training his hands to betray the closest scrutiny took the kind of discipline that was his forte. He took immense pride in the craft of magic and considered it a noble art, his "other" profession. He served as President of the Texas Association of Magicians and occasionally hosted local meetings at night in his courtroom. He kept separate his two professions, with few exceptions. An attorney who had once recognized Judge Price at Magic Island needed an emergency ruling, so he raced to the club, paid the admission and asked Frank if he could turn a magician into a judge. Frank did. On another occasion, Frank finished sentencing a convicted con-artist and then had him deal Three-Card Monte for 2 hours so Frank could study his reveal.
He was absolutely a character, and an honorable man.  He will be greatly missed.   I am very glad that I got the opportunity to practice in front of him, and I'm proud that I tried a case to him.

A celebration of his life will be held at Memorial Drive Presbyterian Church, 11612 Memorial Drive, Houston 77024, on May 24, 2018, at 10:00 am. Those desiring to honor Judge Price's memory are welcome to make a donation of choice or to The American Cancer Society.

Friday, May 18, 2018

Services for James Dyer

From the family of James Dyer:

There will be a Viewing Service at Cypress-Fairbanks Funeral Home (9926 Jones Rd, Houston, TX 77065) on Sunday May 20, 2018 from 5-7pm.

A Memorial Service at St. Stephen's United Methodist Church (2003 W. 43rd Street, Houston, TX 77018) on Monday May 21, 2018 at 2pm, reception to follow.

Tuesday, May 15, 2018

No Jacket Required


If you haven't heard the news already, the Criminal County Courts of Harris County yesterday relaxed the dress code for the summer in light of our current conditions:
We suspend the requirement for male attorneys to wear coat and tie, instead requesting a collared shirt and slacks, with comparable attire for the female attorneys, when they attend our bond docket courrooms in the Family Law Center.  This rule shall take efect May 21, 2018 and remain in effect until October 1, 2018, and shall apply to the bond docket courtrooms of all the undersigned judges.
And, yes, it is signed by ALL of the County Court Judges.

It is still advised that, given the concerns of the Fire Marshals at the Old Family Law building,  all occupants of the building dress accordingly.

Monday, May 14, 2018

James Dyer

I was very saddened to learn yesterday of the passing of my friend and longtime criminal defense attorney, James Dyer.  I knew that he had suffered through some health issues fairly recently, but he was still up and covering dockets as recently as last week.  He was a kind man, and I probably learned one of the most valuable lessons I ever learned from him during my time as a young prosecutor.

I wrote about it in this post.  It's a long post, and I think I was having (yet another) blog spat with my friend, Mark Bennett, as well as arguing with that Rage Judicata guy that used to be around the blog (wonder whatever happened to that guy).

Anyway, I was lamenting the lack of collegiality within the criminal law profession, and I cited a moment from early on in my prosecutorial career.
Of course on both sides of the Bar, there are always going to be examples of those who have somehow abandoned the idea of collegiality and replaced it with bravado, arrogance, and often, rudeness. Some prosecutors do it. Some defense attorneys do it. Hell, even some judges do it, I suppose. 
It has been my experience that those members of the legal profession often exhibit rude behavior in their younger and less-experienced years. When you've gone to trial and you've both won and lost many tough cases, you don't really have the need for bravado. You are comfortable in what you've accomplished and you don't really feel the need to go around puffing or treating your opposition like crap just to make yourself feel better. 
I would like to think that by the end of my career as a prosecutor that I was known for treating everyone with respect, but I know that in my younger years as a prosecutor I could be quite a tool. I remember the day I realized what a tool I was being. 
I was giving James Dyer (whom I still fondly refer to as "Chewbacca") a mean-spirited and rude speech. I don't remember what it was about or why I felt my rant was necessary, but I remember what he said to me. He looked at me, sadly, and said "I don't know what I did to make you so mad at me, but whatever it was, I'm sorry." 
I felt like a bully and jerk (which I was). There wasn't any need for it, and in his understated way, Mr. Dyer pointed that out to me. If there was ever any "turning point" in my career and who I wanted to be as a prosecutor or a criminal lawyer, in general, that's the moment I can point to.
After I wrote that post, word trickled back to Mr. Dyer that I had written it, and it apparently made him very happy.  Whenever I would see him around the courthouse, he'd put his arm around my neck and tell whoever was standing nearby: "This guy wrote something nice about me once!  I keep waiting for him to do it again!"

We were always friends after that.  He always seemed to be upbeat and happy when I saw him.  He talked about his family quite a bit.  He always had a joke that was usually the epitome of a "Dad Joke."  If the joke bombed, he just started a new one.  Mr. Dyer always wanted to leave you laughing.

He had a great sense of humor about himself, too.  Back in the days of when Todd Dupont and I were hosting Reasonable Doubt on behalf of HCCLA, Todd went through a lengthy period of time without shaving.  I asked Mr. Dyer if he would help me do a quick video clip, making fun of Todd for his unkempt beard.

Mr. Dyer happily complied.  (NOTE: The video is so old that I can't figure out how to download it and migrate it over to this post.  It's a little slow to load, but check it out.)

Mr. Dyer was a courthouse staple and I will miss seeing him there.  I'll miss his sense of humor and cheeriness.

And I will never forget the lesson he taught me when I was a young, hotheaded prosecutor.

For that lesson, I'm profoundly grateful.

Rest in Peace, my friend.

Saturday, May 12, 2018

Lisa Falkenberg's Alfred Brown Double Down

Lisa Falkenberg and I have always had a bit of an up and down friendship.

To be fair, I may have been a little bit antagonistic during the heated 2008 D.A. Election when I referred to her as Pippi Longstocking.  To her credit, when I actually met Lisa a year or so later, she was very gracious despite some of the potshots I took at her on the blog.  Although we didn't agree on many issues, we shared the common interest of the Harris County Criminal Courthouse.  Despite the opposing views, I like her and consider her a friend.

When she first began writing about the Alfred Dewayne Brown case, she asked me a couple of questions here and there about the Grand Jury process for background information.  I was more than happy to share my thoughts, and I thought she was on the right track.  I was happy for her when she won the Pulitzer.  Even though I didn't know enough about Brown's case back then to form an opinion on his guilt or innocence, I agreed with Lisa that the Grand Jury system had been abused and that needed to be brought to light.

I've never had a problem being friends with somebody that I disagreed with -- something that irks some of my friends in prosecution/law enforcement from time to time -- and I disagreed with Lisa on several issues over the years.  Unfortunately, we had a falling out over her coverage of the David Temple case.  She wrote an article singing the praises of John Denholm and Steve Clappart, and I responded with this post, pointing out that I felt they were dishonest morons.

Lisa sent me a tersely worded e-mail, blasting me for my response and telling me I had my facts wrong on Clappart and Denholm.  I disagreed.  I was (and am) pretty comfortable in my assessment of those two.  That exchange was pretty much the last time we spoke.

The reason I write all of that backstory is that I want to make it clear that I don't feel any animosity towards Lisa for what she writes.  Whether I think her point is correct or incorrect, I think she usually writes from a place of intellectual honesty.

But I think that she's gotten too close to the Alfred Dewayne Brown case and it is drastically coloring her perspective on it.

Just to clarify, I write from a completely biased perspective every time I write something for the blog.  I try to justify what I'm thinking with logic and I also acknowledge counter-views, but I'm biased as hell.  It would be silly to argue otherwise.

But I'm a blogger with small to medium readership --not a Pulitzer Prize-winning columnist for a newspaper in a major metropolitan area.

Earlier this month,  Lisa wrote a column demanding that Harris County hurry up and pay Brown for all the years he "wrongfully" spent on Death Row.   The column itself didn't surprise me.  It is natural for Lisa to feel tied to the Brown case -- it won her the Pulitzer, after all.  I thought it was a little strange that an investigative journalist was criticizing the idea of John Raley looking further into the case.  What really surprised me, however, was a pretty gross misstatement of the law and facts that Lisa made in that article.  She strongly insinuated that Brown had been found practically innocent by the Court of Criminal Appeals, which couldn't be further from the truth.  I called out the misstatement in this post.

Last week, the news broke that the Harris County Attorney's Office was in strong disagreement over Brown's innocence. Their argument was that a phone call that could have potentially exonerated Brown, actually proved his guilt.

Given Lisa's closeness to the case, I was curious as to what she would have to say about Mr. Brown now.  This morning, she answered that question quite clearly by doubling down on her belief in Brown's innocence.

In a column entitled "It's Harris County Attorneys, not Alfred Dewayne Brown, bluffing in federal court," Lisa assails the County Attorney's allegation of Brown being guilty as a "ridiculous claim."
If the records didn't help Brown's defense, then the county attorneys reason that they weren't exculpatory, and so Brown's prosecutors didn't violate his rights by withholding them.  Thus, they conclude Brown's conviction shouldn't have been reversed, and he lacks a civil rights claim as well.
See, I told you they got creative. 
Not exactly.  As one of my commenters in the last post noted:

Brown's lawsuit is demanding compensation because he was factually innocent.  The County Attorney's response is counter to that.  A person can be factually guilty and still have his rights violated.  If that happens, he deserves a new trial.  A new trial doesn't make one factually innocent and thus entitled to millions of dollars.  

And Lisa knows that.  

Lisa's article is attempting to equate the fact that Brown deserved a new trial to his factual innocence.  She's vilifying the County for not wanting to pay cash money to Brown and saying that they are arguing he should have never gotten his case reversed, either.  I haven't seen the entirety of the County Attorney's pleadings, so I don't know if they are arguing that exact point.  If they are arguing that he didn't deserve a new trial, they are wrong.  

There is no dispute in my mind (or the minds of prosecutors or defense attorneys) that Brown deserved the remedy of a reversal of his case due to the exculpatory evidence being hidden.  The dispute arises over whether he should receive a nice lump sum payment in addition to the reversal . . . or another trip back to Death Row.

Lisa concludes this morning's column with this:
A prosecutor has a duty not to convict, but to do justice.  The moment Rizzo realized he had evidence that had even the potential to help Brown, he was bound by law to turn it over.  He didn't.  He sat on it, and then claimed years later the phone record was lost inadvertently.
That's a violation of Brown's rights.  That comes across loud and clear.  The rest is just static. 
Now, who's being creative?

In essence, this is what has happened:

HARRIS COUNTY:  Mr. Brown did not receive a fair trial so his case should be reversed.
LISA:  Pay him millions, too.
HARRIS COUNTY:  Slow down, Lisa.  We are going to see if we have enough evidence to retry him.
LISA:  Pay him his millions.
HARRIS COUNTY:  Doesn't look like we are going to be able to try his case again, so . . .
LISA:  So, you're going to pay him his millions?
HARRIS COUNTY:  No.  For him to get his millions, we have to believe that he actually didn't commit this crime.
LISA:  That's ridiculous.  Pay him his millions.
HARRIS COUNTY: We don't think he deserves his millions.
LISA:  You're all idiots.  You violated his rights.  Pay him his millions.
HARRIS COUNTY:  After looking at these phone records, we actually think we may be able to prove he's guilty.  We may even take him back to trial.
LISA:  You're just being difficult.  That's impossible.  Pay him his millions.

The first blog post that I wrote about Lisa's coverage of the Alfred Dewayne Brown case was entitled "Tunnel Vision & The Falkenberg Articles."  In that post, I criticized people who have tunnel vision to the degree that they aren't willing to examine any other possibility than the theory they believe in.  In that post, I was talking about Rizzo's tunnel vision, but I could borrow that same title for this post.

Lisa's articles on Brown reflect an absolute inability to consider the possibility that he may actually have been responsible for murdering Houston Police Officer Charles Clark.  In the picture accompanying today's column, she is literally seen hugging Brown as he is released from custody.  This case is the one that won her the Pulitzer.

Maybe Lisa is the one suffering from a little bit of tunnel vision now.

Wednesday, May 9, 2018

Leave the Money and Run

Remember that time I pointed out that I thought Harris County District Attorney Kim Ogg's words about the Alfred Dewayne Brown case seemed to be a little cagey for her?

I believe I said something to the effect of:
Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.
Houston Chronicle reporter Keri Blakinger just published this bombshell of an article, which details that the notorious phone call that is the heart of Brown's alibi may actually not be quite as exculpatory as Brown's legal team would like the general public to believe.

To recap (extremely) briefly, Brown claimed he couldn't have committed the Capital Murder that he was sent to Death Row for because he was at his girlfriend Ericka Dockery's home at the time.  The phone records (withheld by Dan Rizzo, apparently) in question showed a landline phone call from Dockery's home to her place of work.  Dockery claimed that this phone call was Brown calling her from her home.  It was this piece of evidence that got Brown off of Death Row.

That same piece of evidence now may become the thing that puts him back there.

From Blakinger's article:
But now, the county is alleging the phone call doesn't prove Brown's innocence because it was actually a three-way call, showing he was at the scene of the slaying. The shifting interpretation of the old records stems from a new expert analysis that Brown's attorneys have already begun calling into question.
Hmm.  As I mentioned before, Brown's actual innocence may not be quite the well-settled issue his legal team would like the public to believe.

Brown's civil attorney, Cate Edwards had this to say:
"The county's '3-way call' theory is simply incorrect," [Edwards] said, "and is inconsistent with Ms. Ogg's recent actions referring Mr. Rizzo to the Texas State Bar and appointing of independent counsel to determine whether Mr. Brown is actually innocent."
This statement is the legal equivalent of Donald Trump yelling "Wrong!" every time he doesn't like what he's hearing.   In actuality, Ogg's recent actions are perfectly consistent with this information.  Whether the calls were three-way or not, they still should have been turned over to the defense.  Ogg referring Rizzo to the Bar is still the right move on that level.  Her referral of the case to John Raley is also perfectly consistent with having an outside set of eyes look at this situation from a neutral standpoint.

The bottom line is that Alfred Brown got his freedom from Death Row, but ultimately decided that wasn't enough for him.  He wanted compensation.  His highly publicized attempt to get that compensation is what brought this information to light.

In retrospect, he probably should have just left the money and enjoyed his freedom.

Wednesday, May 2, 2018

Actual Innocence and Alfred Brown

Harris County District Attorney Kim Ogg announced yesterday that she was asking attorney John Raley to lead an independent investigation into the "actual innocence" of former-Death Row prisoner Alfred Dewayne Brown.  It was a wise move for a couple of reasons.

For starters, Raley is a highly respected attorney who has dealt with claims of factual innocence on previous occasions, most notably, the case of Michael Morton, who was wrongfully convicted for the murder of his wife, Christine. As most of you know, Raley's work on that case led to the exoneration of Mr. Morton, which, in turn, brought Christine Morton's actual killer to justice.

More importantly, it keeps the Ogg Administration from potentially being boxed into a decision that would not be well received by the Harris County Defense Bar.  As I've noted before, Ogg is in a tight spot with this.  If Ogg declines to declare Brown factually innocent, it isn't going to sit well with the Defense Bar. Ogg would be put in the awkward position of acknowledging that Brown is legally not guilty but not deserving of the money paid out to those proven factually not guilty.

Chronicle columnist Lisa Falkenberg characterized the Raley investigation as an unnecessary delay to Brown's desired compensation, asserting her belief that Brown has already been proven factually innocent . . . more or less.
That standard [for a legal finding of actual innocence] is roughly similar to the one that led the Texas Criminal Court of Appeals to toss Brown’s conviction due to constitutional error. An inmate must show that the constitutional error at trial “probably” resulted in the conviction of one who is actually innocent and that no reasonable juror would have voted to convict in light of the new evidence.
Um, maybe in the same sense that Sesame Street is "roughly similar" to The WireBoth deal with life on the streets in an urban area, right?

Brown's case was overturned based on a Brady violation when the D.A.'s Office realized that the defense had not been provided with a copy of telephone records that supported Brown's alibi by his girlfriend, Ericka Dockery.  The D.A.'s Office agreed that Brown deserved a new trial and the Court of Criminal Appeals signed off on a Writ of Habeas Corpus.

I'm not sure why Lisa is insinuating that the Court of Criminal Appeals practically made a finding that there was a constitutional error at trial that "'probably' resulted in the conviction of one who is actually innocent."  That is not the case.

In fact, whether or not Alfred Dewayne Brown is factual guilty is very much up for debate.

I've spoken with a couple of the prosecutors who handled the Brown case after it came back from the Court of Criminal Appeals.  Without hesitation, they will gladly state unequivocally that he deserved a new trial.  There is no debate that the evidence withheld by Rizzo was exculpatory and should have been turned over to Brown's defense counsel during trial.

But they will also tell you that they fully believe that Brown is factually guilty.  So will every HPD Homicide investigator that worked on the case.  I don't know enough about the details of the case to form my own opinion on Brown's guilt or innocence, but I will say that there can be a tremendous difference between legal innocence and factual innocence.

There can also be a tremendous variance in the strength of alibi evidence.  Some alibis can unequivocally exonerate somebody.  Others are less definitive.  The people who I've spoken to about the phone records that supported Ericka Dockery's story acknowledge that they were evidence of an alibi, but they were far from definitive.  They say if Rizzo had just turned over the phone records, he could have easily explained them away at trial.

Despite Brown and Falkenberg's protestations to the contrary, Brown's factual innocence isn't quite the no-brainer they portray it to be.

I'm going to hazard a guess that D.A. Ogg was a little concerned about Brown's innocence herself.  Having watched how she has handled this case, as well as others, I believe that she would have loved nothing more than to declare Brown factually innocent while lambasting the "toxic culture" of previous administrations.  She certainly had no problem notifying the press of other shocking developments on the case.

But I found this paragraph in Falkenberg's column to be very interesting:
But if Raley does not find Brown “actually innocent,” Ogg said she may have decide whether to charge him again in Clark’s murder. She chose Raley, she said, not to pass the buck, but because she felt the case needed an independent, fair review by someone outside the DA’s office.
Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.

I'm not accusing her of "passing the buck;"  to the contrary, my guess is that she wanted a credible voice such as Raley's to support whatever decision is ultimately made.

That's just smart politics.

Sunday, April 29, 2018

LaGrappe's Trial Socks

I ran into my friend and fellow defense attorney, John LaGrappe, on Friday in the basement of the parking garage. 

If you don't know John, he's a big personality and also one hell of a trial lawyer.

He was in trial on Friday, but had to take his boots off for the metal detector.  When he did, all of us in the vicinity got a look at John's lucky trial socks.

Who in the hell goes barefoot with boots?

Thursday, April 26, 2018

A 4-year-old's Views on Self-Defense

As a blogger on serious matters, I generally try to avoid writing funny stories about my kids.  Sometimes, I find that unavoidable.

This afternoon, I picked my 4-year-old up from after-school care and his counselor told me that he had gotten into a fight with another 4-year-old.  She told me he wasn't in trouble, because he was defending a friend.  Naturally, I asked him what happened.

ME:  Smith, what happened?

SMITH:  [Other kid] hit me and pulled my hair.

ME:  What did you do?

SMITH:  I told him that was not acceptable.

ME:  "Not acceptable?"  Who told you to say that?

SMITH:  [My teacher.]

ME:  That's very good, Smith.  What happened then?

SMITH:  I punched him in the forehead.

Services for Mark Vinson

The services for our friend, Mark Vinson, have been released.

There will be visitation on Tuesday, May 1, 2018 from 5:00 p.m. to 8:00 p.m. at the American Heritage Funeral Home Chapel located at 10710 Veterans Memorial Drive, Houston, TX 77038.

A Celebration of Life will be held at the same location on Wednesday, May 2, 2018 from 2:00 p.m. to 3:00 p.m. with a Repass from 3:00 p.m. to 5:00 p.m.

Wednesday, April 25, 2018

Mark Vinson

The CJC Community was shocked and saddened yesterday to learn of the unexpected passing of longtime former-prosecutor and defense attorney, Mark Vinson.   It is no exaggeration to say that Mark was an icon at the courthouse who was very loved and respected.  He was 79 years old.

Mark was a Vietnam veteran who served in the United States Army, before retiring as a Major.  He then attended law school and joined the Harris County District Attorney's Office in 1983.  During his lengthy tenure at the D.A.'s Office, he served as a teacher and mentor to many prosecutors for several decades, and he was known for being a skilled trial lawyer.  Mark was also highly regarded as a fair, honorable and friendly prosecutor.

After his retirement from the D.A.'s Office in 2005, he practiced criminal defense and was an adjunct professor at Texas Southern University's Thurgood Marshall School of Law.  Mark never stopped mentoring younger lawyers.

I never had the pleasure of being directly supervised by Mark, but I knew him and highly respected him.  He was a classic example of the gentleman lawyer who represented everything good about there was about our profession.  He defined collegiality and believed in fighting hard in the courtroom, but respecting your opponents outside of it.  Everyone he saw, he greeted with a smile and a firm handshake.

Mark's passing was a tremendous shock to all of us because he was the picture of health.  I saw him last week, and he didn't appear to have aged a bit.  Quite frankly, I was shocked to read that he was 79.  I thought he was younger than that.  Former Harris County prosecutor and 9th District Court Judge Phil Grant saw Mark in his court in Montgomery County and posted this picture.

Mark's obituary can be found here.  He lived an amazing life.  As of this writing, I do not know about his funeral arrangements.  I will post them as soon as I know something.

My condolences go out to Mark's family.  I hope they know that he was a very loved and respected member of our courthouse family, as well.

Friday, April 20, 2018

I'll Take Dumb Comments for $1000, Alex

Yesterday, the lawyers that practice in and around the Harris County Criminal Justice World were all abuzz about the attack on Danny Lacayo by one of his clients, Luciano Olivarez, during the felony male jail docket.  Danny is a very well-liked colleague who is highly respected by judges, prosecutors and his fellow defense attorneys.  We were all very relieved to know that his injuries were not serious and we hoped that the incident might lead to some changes in the way the jail dockets are handled.

The focus of yesterday's incident shifted slightly in the afternoon when the Houston Chronicle published an article by Keri Blakinger about the incident.  Although the PD's Office and Danny had not given a statement for the article, the president of the Harris County Deputies Organization Union, David Cuevas, was apparently more than happy to talk.

In response to learning that the Harris County District Attorney's Office had filed felony charges of Assault on a Public Servant against Olivarez, Cuevas "questioned whether prosecutors would have filed similar charges in the case had a jailer or deputy been the target."
"Our union will be monitoring the district attorney's office as to whether or not they'll be accepting charges when this happens to other public servants that are not public defenders," said union president David Cuevas.  "We want to make sure that there is not a double standard." 
Cuevas's statement was laughable for a host of reasons.

First off, I'd like to know exactly what "monitoring the district attorney's office" means to him.  Was he planning on setting up shop at D.A. Intake to monitor all incoming calls?

Second, the very idea that the D.A.'s Office under Kim Ogg (or any of her predecessors, for that matter) is reluctant to file Assault on a Public Servant charges on behalf of police officers is absurd.  Those cases are filed every single day at a very high frequency.

Cuevas might as well have questioned whether or not the Ogg Administration was still accepting charges on murder cases.

Police officers and jailers have dangerous jobs that lead them into dangerous interactions with suspects.  Nobody has ever disputed that.  When a suspect reacts violently and attacks a police officer or jailer, those charges get filed.  Period.

I've seen charges of Assault on a Public Servant filed against people for punching an officer in the bulletproof vest.   I've seen mentally ill suspects who were flailing their arms get charged if they made skin to skin contact with a police officer.  Trust me when I tell you that in almost 19 years of practicing in the CJC, I've seen the word "assault" stretched to some pretty great lengths when it comes to public servants.  In my time, I've seen hundreds, if not thousands of Assault on a Public Servant charges filed against people who have attacked police officers and jailers. 

This is only the second incident I remember charges being filed where a defense attorney got attacked. 

Cuevas's statement implying that somehow the D.A.'s Office prioritizes the safety of defense attorneys over the safety of police officers and jailers was just silly. 

And kind of offensive.

Thursday, April 19, 2018

The Powder Keg

Prior to the damage caused by Hurricane Harvey, each court in the Harris County Criminal Justice Center held a docket every day of the work week.  These dockets were (obviously) held in normal courtrooms, where there were holdover cells for the incarcerated defendants.  Attorneys who were speaking with their "in custody" clients, did so through glass partitions.  If a defendant was brought out of the holdover into the courtroom, they were handcuffed.  If a defendant had acted with particular aggressiveness, they might find themselves in leg restraints before being allowed outside of the holdover.

After Hurricane Harvey rendered the CJC unusable (yet again), one of the biggest challenges facing the Harris County Criminal Justice System was determining how to get incarcerated inmates their day in court.  There were rules and regulations that had to be followed.  Locations had to be secure and there had to be adequate personnel to guard the inmates.  The Civil Courthouse was fine for defendants who were out on bond, but it was not equipped to handle inmates.  There are no holdover cells attached to a civil courtroom.

Ultimately, it was decided that the vast majority of the "in custody" cases would have to be held at the actual jail.  The female felony jail docket is held daily on the 4th floor of the Harris County Jail located at 1200 Baker Street.  The misdemeanor jail docket is held across the street in "Little Baker."  The felony dockets for incarcerated males are held in the basement of the Harris County Jail located at 701 N. San Jacinto.  While the female and misdemeanor dockets are generally pretty safe occasions, the felony male dockets are a completely different story.

The felony male dockets are a disaster waiting to happen, and lawyers who practice there got a small taste of that danger this morning.

To understand what happened today, one must understand the layout of the basement of 701 N. San Jacinto, as well as the procedures followed for each docket.  Each weekday, the 22 District Courts, as well as the Reintegration Court, take turns having a jail docket for male inmates with charges pending out of the respective courts.  Two courts will hold a docket in the morning and two will hold a docket in the afternoon.  Based on the normal cycle, this allows each court to have a jail docket every six business days.

In the basement, there are essentially four rooms used by the lawyers and court personnel.  Two of those rooms function as actual courtrooms, where lawyers can approach the judge, and defendants can be brought for pleas (or any other matter requiring judicial attention).  The third room, held in 701's infamous law library,  is where prosecutors bring their files and meet with the defense attorneys.  This place can look like Grand Central Station during a busy docket.

Attorney Vic Wisner, exercising in the Law Library.

The fourth room is where attorneys and their clients meet to discuss cases, and that's where things get dangerous.

The attorney-client meeting room holds roughly around thirty male inmates.  It is actually a converted "pod" with two tables placed inside of it so that inmates can do paperwork, if need be.  Around the perimeter of the room are plastic chairs for the inmates to sit in while they wait to talk to their attorneys.  The room is extremely overcrowded.

None of the inmates in the room are secured by handcuffs or leg restraints.  Although they are all told to sit down and wait for their attorneys to come speak with them, there are no physical restraints on them.  There is nothing there that would prevent them from getting up and walking across the room.

There is nothing there to prevent them from fighting with each other.

There is nothing there to prevent them from attacking one of the lawyers who enters the room.

The deputies who are in charge of securing the inmates, sit in chairs outside of the meeting room.  In short, it is a windowless room with one door for an entryway.  It is filled to capacity with inmates charged with felonies ranging from theft to drugs to sexual assault to murder.  And every day, civilian attorneys wade into this room, filled with inmates, with the hope that none of the inmates feel like attacking anyone.

The potential for something terrible happening is tremendous.  It only continues to operate under the optimistic belief that each and every one of the inmates will follow all of the rules and not lose their temper.

But, here's one thing you quickly realize when you become a defense attorney -- you often find yourself being the messenger of very bad news.  Whether it is telling the client what the evidence is against him or just conveying the plea bargain offer from the prosecutor, defense attorneys have the unpleasant duty of upsetting their clients on a daily basis.  The vast majority of those clients take the news in stride and understand that is how the System works.  

Others don't.  Some will become quite angry over the news they receive.  Some will lose their minds simply over the length of a reset.

Oh, and did I mention that a decent amount of the inmate population in the meeting room has some level of mental illness?

Today, a mentally ill inmate attacked Public Defender Danny Lacayo in the holdover.  Danny had just told his client that his case was going to be reset and placed a pen on the table for the client to sign his paperwork.  The client became very agitated and Danny quickly picked up the pen, moving it from his client's reach.  The client then punched Danny in the face.

Danilo "Danny" Lacayo
Fortunately, Danny is a pretty stout guy.  He stood up and walked out of the room before the situation escalated further.  He said the punch hurt, but mostly he was relieved that he had the wherewithal to move the pen. Ultimately, someone told the deputies outside the room what had happened and they removed the defendant from the meeting room.

The situation could have been far more tragic.

To my knowledge, this is the first physical assault on an attorney in the meeting room, but there have been several close calls.  Earlier this week, a male inmate began losing his temper with his female attorney.  She was able to escape the room before it turned physical.  Every lawyer that works a jail docket worries about what would happen if the situation truly got out of control.  

It will get out of control one day.  It isn't a matter of "if."  It's a matter of "when." The quarters are too close.  There are no safety protocols.  The jail is understaffed.  The inmates are angry.

The whole situation is a powder keg, waiting to explode.

Tuesday, April 17, 2018

Portrait Unveiling for Judge Poe

There will be a portrait unveiling for former Judge of the 228th District Court and Current United States Representative Ted Poe on Friday, April 20, 2018 at 11 a.m.  The event will be held on the 17th Floor of the Civil Courthouse in the ceremonial courtroom.  The address for the courthouse is 201 Caroline, Houston, TX 77002.

Judge Poe is a legendary part of the Harris County Criminal Justice System both as a prosecutor and later as Judge of the 228th.  I am very proud to say that I tried my first murder case in front of Judge Poe and I still have the souvenir he gave me when the trial was over: a note from the jury requesting to hear the prosecutor's argument again.

Even though I hadn't talked to Judge Poe in years, he was nice enough to get tickets for me and my son to tour the United States Capitol last Spring Break.  It was great to see him. 
Whether you practiced in front of him or not, I highly encourage you to attend Friday's unveiling.  Judge Poe truly is a legend and an icon of Harris County History.  

You might actually hear a good War Story or two, as well.

Monday, March 12, 2018

Dan Rizzo and the Alfred Dewayne Brown Case

It's not easy being Dan Rizzo these days.

After retiring from the Harris County District Attorney's Office some time during the Pat Lykos Administration, he probably thought that he put all of the uncertainty and acrimony of being a prosecutor behind him.  While most prosecutors who leave the Office make some effort to keep in touch with one another, he kind of faded into oblivion.

He hadn't been gone all too long before he found himself in the crosshairs of the Houston Chronicle's Lisa Falkenberg, who was working on a story about the potential abuses of the Grand Jury system.  Initially, the story Falkenberg was working on dealt with how Rizzo and a member of the Grand Jury had used the Grand Jury's power to intimidate a potential alibi witness on a capital murder case.

It just so happened that the case where that occurred was the State of Texas vs. Alfred Dewayne Brown, which Rizzo not only presented to the Grand Jury, but also prosecuted at trial.

The case itself was a bad one, but it didn't grab as many headlines as some other capital murder cases in Harris County.  At least, it didn't until Falkenberg's Pulitzer Prize-winning investigation.

The allegations were that on April 3, 2003, three men robbed a check-cashing business where a woman named Alfredia Jones was working.  One of those men, Elijah Joubert, held a gun to Ms. Jones' head during the robbery, but Ms. Jones was able to notify her supervisors of a robbery in progress.  Because she alerted a supervisor of what was happening, the Houston Police Department dispatched patrol and Officer Charles Clark was the first to arrive on the scene.  When the police arrived, Joubert is believed to have executed Ms. Jones by shooting her in the head.  A second person (allegedly Alfred Dewayne Brown) shot and killed Officer Clark.

A third person, Dashon Glaspie, acted as a lookout and he named both Joubert and Brown as the principal shooters.

As noted in Falkenberg's original articles, Rizzo used the Grand Jury to bring in Alfred Dewayne Brown's girlfriend, Erika Dockery, as a witness.  Dockery had initially attempted to alibi Brown, but the transcripts from that Grand Jury meeting ultimately led her to recant the alibi testimony.  Before doing so, she was threatened with a multitude of things -- from charges of aggravated perjury to never being able to find employment.  Dockery not only recanted her alibi, but testified against Brown in trial, testifying that he admitted his presence at the check-cashing business at the time of the murder.

However, Dockery's original alibi of Brown actually had some corroborating evidence in the form of phone records.  Those records as (also) reported by Lisa Falkenberg were never admitted into evidence.  They were ultimately found in the garage of Homicide Detective Breck McDaniel.  Those records are what ultimately led the Harris County District Attorney's Office to agree that Brown was entitled to a new trial.  When the Court of Criminal Appeals granted that new trial, the D.A.'s Office decided that there was no longer sufficient credible evidence to retry him.

As I noted in a blog post last June, Alfred Brown decided to seek compensation for the time he spent on Death Row.  The trouble with that was that he had to be found "factually innocent" for the compensation to kick in.  Under Devon Anderson's Administration, that was going to be an uphill battle for Brown.  The Anderson Administration as well as the Homicide Investigators on the case believed that Brown was factually guilty, although they didn't feel they could prove it at trial.  What I wrote back then was that it put District Attorney Kim Ogg in a difficult position -- if the D.A.'s Office were to agree that Brown was factually innocent, it would be damaging to relations with HPD.  If she refused, it would be damaging to her relationship with a Defense Bar that looked to her to be a progressive and open-minded District Attorney.

A couple of things have changed since that blog post.  First off, D.A. Ogg has proven that she isn't really all that bothered about upsetting the Houston Police Department.  More importantly, however, was Ogg's revelation last week that an email had been discovered from HPD's Breck McDaniel to Dan Rizzo, notifying him of the corroborating phone calls.
"I was hoping that it would clearly refute Erica's claim that she received a call at work," McDaniel wrote, later continuing: "But, it looks like the call detail records from the apartment shows that the home phone dialed Erica's place of employment on Hartwick Street at about 8:30 a.m. and again at 10:08 a.m."
To put this into context, prior to the e-mail revelation, Rizzo had been able to maintain that he didn't know that there were phone records in existence that corroborated Erika Dockery's alibi of Alfred Brown.  It was a mistake. A miscommunication.   McDaniel's e-mail clearly shows that Rizzo was informed of it.  He just chose not to disclose it to the defense.  He also lied about it later.

And because of that e-mail, Rizzo is now joining the ranks of vilified ex-prosecutors at the levels of Charles Sebesta and Ken Anderson.

As well he should be.

I knew Dan when he and I were both at the Office.  He was a Division Chief and far senior to me.  Although I didn't have a personal problem with Dan, I didn't trust him.  I thought he was a dishonest guy.  I can think of at least two different scenarios where he lied to me personally.  The reason I knew that he was lying was because he contradicted himself.  They weren't on big issues.  They were pretty minor, but the guy couldn't keep his stories straight to save his life.  He just wasn't bright enough, quite frankly.

If you were to ask me if I thought Dan would downplay or neglect to mention some exculpatory evidence on a case, I would tell you that it wouldn't surprise me if he did.  It wasn't that he was evil.  He just suffered from tunnel vision.  He regarded the phone records in question to be an inconvenient piece of evidence that would distract from his firm belief that Alfred Dewayne Brown was one of the shooters.  He didn't think that it proved Brown's innocence, so therefore it wasn't exculpatory.

He was wrong about that.

Whether or not those phone records conclusively prove Brown's innocence or are something that could still be explained away is an argument that I will leave to someone more familiar with the case than I am.  But the records are most definitely exculpatory.
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt.
The Harris County Criminal Lawyers Association today called for Rizzo to be prosecuted for Attempted Murder for seeking the death penalty on Brown.  That earned a big eye roll from me.  They know that is never going to happen and to pen a public letter to the D.A. advocating for it is just grandstanding.

But an investigation should be launched into whether or not Rizzo should hang on to his law license.  If proven to be true, his actions are no different than those of Sebesta or Anderson.

If his actions were no different, then the consequences for those actions should be no different, either.

Saturday, March 3, 2018

10 years of Blogging

The other day I was browsing the internet and checking out some different blogs when I noticed that Scott Greenfield was celebrating his 11th year of legal blogging at Simple JusticeFirst off, congratulations to Scott for writing the best legal blog on the web for 11 years.  He publishes several well-written, scholarly and insightful posts a day.  I am in no way, shape, or form comparing my blog to his here, but it did make me realize that I just passed my 10 year blogging anniversary and had failed to notice it.

My first blog post on this site was January 8, 2008.  Since then, I've written over 1200 posts, had almost 19,000 comments, and 3.5 million page hits.  Although the posts are all mine, some of those comments and page hits actually came from other people!  Looking back at some of my posts, a lot of the topics and a lot of the writing are cringeworthy.  Others are not so bad.  Every once in a while, I find one that I'm actually proud of.

I started the blog when I was a felony chief prosecutor in the 339th District Court under Judge Caprice Cosper.  I was married to a fellow prosecutor and we had a two year old son.  That seems like a different lifetime ago.  Today, I've been a defense attorney almost as long as my career as a prosecutor lasted, I've divorced and remarried, that 2 year old is now 12 and has a 4 year-old younger brother.

Blogging grizzles a man, I tell ya.  Makes him fat, too, apparently.

This blog began anonymously, shortly after the beginning of the e-mail scandal that would ultimately cost then-District Attorney Chuck Rosenthal his job.  The racist and sexist e-mails from our leader had led to a complete backlash against the District Attorney's Office as a whole.  We were getting slammed in the Chronicle and every other media outlet.  At one point, when picking a jury I started asking potential jurors if they already had decided that they hated the State because of who our elected D.A. was.  The answers were distressing.

The public perception of prosecutors had flipped from the "good guys" to the "bad guys" in the space of a few e-mails, and it just seemed to get worse every day.

So, I started writing in a small attempt to push back against all of the negative attention we were getting.  It started slowly at first -- like dipping a toe in the water to see how cold it was.  I didn't want to announce whether or not I was a prosecutor or a defense attorney, because I didn't want to get fired for what I was writing (that worked out well in the end, let me tell ya!)

But how do you publicize your blog without blowing your super secret identity?

Simple -- you just casually mention it to the most talkative person you know and then wait thirty minutes. (Thanks, Alexis Gilbert Bruegger!) By the end of the day, word of an Anonymous blogger was all over the CJC.  It was both exciting and terrifying.

And then came Mark Bennett.

Mark had been running his blog Defending People for some time before I wandered into the blogging neighborhood.  I enjoyed his articles and reading them very much made me want to write, as well.  I had a feeling that once he got word that there was an anonymous blogger out there, he would engage.  I was correct about that.  Mark absolutely engaged the anonymous blogger.

And then he threw out an ultimatum:  tell me who you are privately, or I'll find out on my own and out you publicly.

Well, shit.  That backfired.

So, I gave Mark a dollar.  Told him he was now my attorney and confessed my secret identity.  True to his word, he kept it a secret until I got fired went public.  Over the past ten years, Mark's writing has gone on to be recognized on the national level for some of the great work he's put together.  I've kept my writing on local topics for the most part.  I've semi-jokingly said that my blog was The National Enquirer compared to his Wall Street Journal.  But I would be very very remiss if I didn't point out that this blog would have never existed if it weren't for Mark.

And, of course, Pat Lykos.

During the 2008 election, this blog went nuts with comments on the D.A. race.  In the aftermath, when people would ask me if I was surprised that Lykos fired me, I would always respond, "Not really. I mean, I did compare her to a Bud Lite Lizard."  Politics are such nasty things.

The biggest misconception that I think people have had about my outlook on the Lykos Administration was that I just missed the "Old Guard Ways" of the Holmes/Rosenthal days.  That seems to be the standard refrain from people who disagree with what I write.  They forget that Lykos was an extremely controversial judge who brought her self-aggrandizing and paranoid tendencies to the D.A.'s Office.   And man, those tendencies gave me so much material to work with.

I think that's why I'm so disappointed with the way that Kim Ogg has been running the Office lately.  Lykos took over like an enemy combatant and she wasn't wrong when she thought the rank and file disliked her.  Kim listened to Lykos too much when she took over, but she didn't need to.  The prosecutors didn't hate her like they hated Lykos.  At least, they didn't until she fired about 40 of their co-workers.

But I digress.

Over the years, this blog has had highs and lows.  The motivation to write has ebbed and flowed and the readers and commenters have done the same.  At times, I've thought of scrapping it because it served no real function anymore, only to have something come up that made me really motivated to write.  I've made some amazing friends through the blog and I've made some pretty angry enemies.  I hope that, on occasion, I've helped effect some positive changes here and there, but who knows?

In the end, I keep writing this blog for (more or less) the same reason that I started writing.  I think that the Criminal Justice World is the most fascinating aspect of American domestic life.  It is a convening of heroes and villains, tragedy and triumph, brilliance and profound stupidity, hilarity and bereavement.  I can't imagine being involved in any other profession.  Only those of us who practice within it (not just write about it from the outside looking in) can truly understand what it's like.

This blog just tries to show that to the outside world.  I know I may miss the mark on conveying that effectively more often than not.

But for the past ten years, it sure as hell has been fun trying.

Friday, March 2, 2018

Judge Mary Bacon

I was very saddened yesterday to learn of the passing of Judge Mary Bacon, retired judge of the 338th District Court.

Judge Bacon retired from her bench just before I became a prosecutor, but I got the opportunity to know her during her occasional stints as a visiting judge.  She was one of my favorites and I hope that you will take the time to read Brian Rogers' excellent write up about her in the Chronicle.  She was a trailblazer of a lawyer and a judge, but you would never have known it to talk to her.

I got to know Judge Bacon while trying the first in a series of co-defendants who had murdered a 15-year-old boy.  She was the visiting for Judge Caprice Cosper and I was trying the case against Mack Arnold.  I didn't really know her before then, except in passing, but I during breaks and during deliberations, Mack and I would just go sit in chambers with her and swap stories.  She loved to laugh and she had this twinkle in her eye when she would talk about old stories from the old days.

She reminded me so much of my grandmother that it was almost surreal to be trying a pretty brutal murder case in front of her.  But she ran that trial like a complete pro.  Everything ran smoothly, and of course, the jury adored her.

We became friends during the trial and I was very happy that we kept up with each other after the trial.  I was very honored to know that she read this blog and (secretly) even commented in on it from time.  More often than not, she would call or text me to let me know her thoughts on things that I had written.  Although I can't remember how she found out, she was one of the first people who knew I was I was the anonymous blogger.  I probably confessed to her.

She had lots of opinion on the 2008 race for District Attorney.

Even though we didn't talk quite as much as the years went by, I would still hear from her every now and then with some frequency.  She was on Instagram, and although she didn't post much, she would always like any pictures that I put up of my family.

I last saw Judge Bacon in person during her portrait unveiling in May of 2016.  She was 86 years old, wearing a leather jacket and walking around like she was in her 20s.  She gave me a huge hug and we talked for awhile.  She seemed a little embarrassed about all of the festivities around her portrait being unveiled, but was happy to talk to so many people who came by to pay her their respects.  The courtroom was packed for the ceremony.

Reading Brian's article on Judge Bacon made me realize that she was even cooler than I always thought.  It also made me realize how much I will miss my sweet friend.

She was truly one of a kind.

Tuesday, February 27, 2018

Kim Ogg's War with HPD

I'm really beginning to think that Harris County District Attorney Kim Ogg skipped the day they taught diplomacy at politician school.  KPRC Channel Two is reporting this evening that the D.A.'s Office suddenly revoked the City of Houston Police Department's access to the Consolidated Criminal History Database (CCHD) without warning.

The database is an extremely handy website available to all prosecutors and apparently, all (but one, now) law enforcement agencies in Harris County.  The way it works is that it gives the user the ability to enter the name of person and that person's entire Harris County criminal history pops up.  It shows every case the person was ever charged with, as well as the outcome of those cases.  That information is something that is readily available via a standard NCIC/TCIC criminal history check, but the CCHD gives much more detailed information.

Each listing of a criminal case provides links to a tremendous amount of additional information.  In most cases, each case is linked to the offense report.  It may also link to all the persons involved.  It can provide information on where the crime happened and past known addresses of a suspect.  In many cases, it even has digital downloads of audio and video recordings.  It is a valuable asset for prosecutors and police agencies.  Here's why.

Let's say that the Houston Police Department is working on a case and they are looking for a suspect.  They enter his name into the CCHD and it shows that he's had several cases filed on him by the Harris County Sheriff's Office, the Constables, or Pasadena.  The CCHD provides an easy click to read the offense reports from those other agencies.

It allows the multiple police agencies within Harris County to quickly access each other's relevant information, without having to go through the (sometimes painfully slow) process of reaching out to each other and asking for that same information to be shared.  It puts local criminal history at an officer's fingertips.

Defense attorneys even have (a very limited) access to it for their clients.  When I have signed on as attorney of record to a case, I can use the CCHD to look up my client's criminal history and have access to all of the old offense reports related to it.  It is an amazing website that makes my job so much easier.  I can see the related offense reports, get interviews, and see evidence on cases where my client was charged.  It saves the prosecutors an immeasurable amount of time because they don't have to make copies of everything and provide it to me.

But the irony is that now I have access to something that the freaking City of Houston Police Department does not.  HPD.  The biggest law enforcement agency in the county.

It's hard to decide where to begin with this, but I'll give it a shot.

When Kim Ogg fired decided not to renew the contracts of approximately 40 senior prosecutors in her new regime, she sent a very loud message that she was not to be trifled with.  She clearly had her own vision of the direction she wanted to take the Office and she wasn't really too bothered by the opinions of those who disagreed with her.

Ogg was more than happy to take on the ire of the police agencies when she decided to stop taking felony charges on residue or "trace cases" or small amounts of marijuana.  Those criticisms were to be expected for a "progressive" District Attorney.

But recent public complaints from HPD to the media have apparently pushed Ogg over the edge.  Some members of HPD have been complaining of prosecutors pleading out cases for too little punishment.  Ogg's way of dealing with the criticism was to simply ban her prosecutors from talking to the police about what was happening.

This memo in and of itself is pretty telling about the deteriorating relationship between the Ogg Administration and surrounding police agencies.  The very idea that police officers who worked on cases aren't allowed to speak to the prosecutors who handled those cases is absurd.

I'm not saying that a police officer's opinion of a case should be the controlling factor on how that case is handled -- prosecutors are trained to spot issues and make judgment calls on cases that a police officer may not see -- but that doesn't mean officers should get the silent treatment on the cases they work on.  Imagine a scenario like this:

OFFICER:  Hey, are you the prosecutor that handled that Agg Assault on a Public Servant case where the suspect shot at me?

ADA:  I'm sorry, sir.  I can neither confirm nor deny that.

OFFICER:  He got probation.  What the hell happened?

ADA:  Sir, you may speak to my supervisor if you are displeased.

OFFICER:  Aren't you the prosecutor who handled it?

ADA:  I can neither confirm nor deny that.  Would you like my supervisor's name and number?

But even that pales in comparison to the idea of shutting the county's largest police force out of a shared database.  In essence, Ogg has responded to the criticisms by withdrawing access to an investigative tool.   That could be construed as a declaration of war.

And that probably wasn't the best decision she could have made.  This war is not one that Ogg can win.

Suppose HPD decides to retaliate by blocking access to their databases to all HCDA personnel?  Prosecutors who want an offense report will have to request a printed version that is copied and turned over to them.  What would happen if every name an HCDA investigator wanted to look up was no longer available at the push of a button?  

It would bring the D.A.'s Office to a standstill.  What would the D.A.'s Office do then?  Stop filing all HPD cases?  Good luck with that.  What Ogg is withholding from HPD will inconvenience them.  If they retaliate, they could devastate a D.A.'s Office that is already reeling from the side effects of Hurricane Harvey.

I'm sure there is more to the story than is currently in the media.  Ogg giving a comment might help enlighten us.  The fact that she isn't in front of a camera, sharing her side of things is telling.  It will be interesting to see how this all plays out.  If we know nothing else about Kim Ogg, we know that she doesn't back down from challenges very often. 

No matter how devastating the repercussions.   

Tuesday, February 20, 2018

An Open Letter to Kim Ogg About Her Prosecutors

Hi Kim,

Long time, no talk.

I heard that your upper admin recently started some new thingy called "Selfies and Plans for Success" or something like that.  If I understand it correctly, the "Selfies" component is for each prosecutor to keep a file on his or her computer of all the professional accolades accumulated over the years.

I'll be honest with you -- it seems a little silly to me.  Prosecutors are too busy working their butts off these days to take time for patting themselves on the back.  Self-aggrandizing is really more of a sport for the politicians.  Not to sound too much like a grumpy ex-prosecutor, but back in my day, the upper admin knew the difference between the great, good, average and bad prosecutors.  They watched them in trial.  They read their evaluations.  They didn't ask them to make a "sizzle reel" as if they were trying out for American Idol.

Real prosecutors ain't got time for that.  But if you are keeping tabs on the compliments that the prosecutors in your office receive, let me pass one along:

Harris County prosecutors are the best in the business.

Now, I know I'm biased since I'm a former Harris County prosecutor and all, but over the past nine years I've spent in private practice and the last five years I've spent consulting on other projects, I've had the chance to see quite a few more jurisdictions than I had before 2009.  I've dealt with prosecutors in numerous other counties and numerous other states.  I'm not saying anything negative about the ADAs in those other locales, but there are few that can compare to a seasoned Harris County prosecutor.

Harris County prosecutors have seen every type of case and prosecuted it.  They know the rules of evidence like the backs of their hands because they've gone to trial so many times that procedure is ingrained in them.  They know the value of the case.  They respect their adversaries.  They honor their word.  They know what in the hell they are doing in ways that too many other jurisdictions miss the boat on.

And since Hurricane Harvey, your prosecutors have been absolutely killing it.

I'm not just talking about keeping intake up and running through the storm.  I'm talking about the aftermath.  The past five or six months where they have had to drag buckets of cases to various and sundry makeshift courtrooms across the county.  They have had to keep up with their Discovery obligations and learn a little bit of eFiling in the middle of all this too.  They literally work around the clock on their jobs.

It has not been unusual during post-flood conditions for prosecutors to answer texts, emails and phone calls late into the evening.  I got a (timely) Discovery notice the other night from a prosecutor at 11:45 p.m.  I've seen prosecutors lug additional files to court so some defense attorneys who really really really hate driving in the Galleria area wouldn't have to come to your Office.  I've had two prosecutors drop Discovery off at my house.  I've had another let me come talk to her about a case at her house.

For a displaced group of prosecutors, they couldn't be more accommodating or professional.  They do their jobs and do them well because they love what they do.

You should be proud.  Actually, you should be honored to lead such a group.

But I kind of get the impression that you aren't honored.  I keep seeing and hearing more and more horror stories about folks in your upper admin who treat your rank and file prosecutors like untrustworthy idiots with bad judgment.  I keep seeing more and more outstanding prosecutors leaving Harris County to go to Fort Bend or Montgomery or Travis County.  I know of others praying to get on with the Feds.

They don't want to leave the prosecutorial profession.  They just want to leave you.  That's a shame, because I'm really a big fan of your outlook on the Criminal Justice System.  That's why I voted for you.  That's why I normally defend you when the media is looking for somebody to give a negative sound byte about you.  I know we had our differences on the whole David Temple thing, but on the whole, I still like your policies.

But dammit, Kim.  You have got to start treating your prosecutors better.  They've been through a lot and they've made you look good in the process.  It's time you started treating them like the highly skilled professionals that they are.

And the first thing you need to do to make that happen is have a little chat with JoAnne Musick, your trial bureau chief.

I've known JoAnne since I was a baby prosecutor back in 1999.  She was the misdemeanor chief of Court Six (I believe) back then and we were friends.  It's a good thing we were friends back then, because I saw the way she treated people she didn't like.  She was one of those chiefs who picked a favorite in her court, and God save you if you weren't it.  I watched her nitpick the living hell out of prosecutors she supervised and then share her scathing reviews with all who wanted to hear.

She was a career prosecutor back then.  She bragged about how she was "raised on the knee of Johnny Holmes" and she acted as though she was heir to the throne.  Don't get me wrong.  JoAnne was good at her job.  She was smart and she liked to teach.  But that mean streak, man.  You didn't want to run afoul of that.

When plans changed for JoAnne, she moved to the defense bar.  Now, as someone who initially believed himself to be a career prosecutor, I can tell you that the change to the defense attorney can sometimes be a little awkward at first.  It wan't for JoAnne.  Within the space of one job change, JoAnne's D.A. "family" became known as the vilest group of liars and unethical cheats known to mankind.  The razor sharp tongue and opinions that she once used only on confused Misdemeanor Threes suddenly were being applied to the entirety of the Office.  She was so angry towards the Harris County District Attorney's Office that her former co-workers honestly didn't know what to make of it.

I remember one very senior chief dryly remarking, "I don't know why y'all are so surprised that JoAnne is just as big of a [expletive deleted, but you can probably guess] for the defense bar as she was for us."

And of course, the Defense Bar just ate that up.  They loved JoAnne and her insightful hatred of where she used to work.  To date, she's the only person to serve as President of the Harris County Criminal Lawyer's Association twice.

In the spirit of full disclosure (and in case you haven't guessed already), JoAnne and I aren't exactly buddies.  We got crossways when I was still with the Office after she left.  That got magnified greatly during the whole David Temple case reversal.  She was blasting me on Twitter from the HCCLA account.  It probably had something to do with the fact that one of her law partners at the time was Temple Defense Team Member John Denholm.  Those were good times.

Many of us were stunned when JoAnne took a job with your Administration, Kim.  After all of the things she had said about prosecutors, cops and victims of crime, we all thought those bridges had been burned, nuked, and spat upon.

But all we really needed to do to understand why JoAnne went back to an Office she hated so much was remember what she truly loves:


JoAnne loves being the person in charge and belittling those beneath her.  It's like, her thing.

Her move to Felony Trial Bureau Chief (replacing the far more respected and liked John Jordan) was right up her alley.  She's been going to town ever since she took over her spot, too.  Calling out prosecutor after prosecutor over long-disposed cases and demanding explanations as if she were addressing a renegade pre-commit.  You can call Harris County prosecutors many things, but "soft on crime" has never been one of them.

JoAnne clearly still has the same enthusiasm for belittling those under her as she did when she was a misdemeanor chief.  I've heard the way she talks to prosecutors.  I've heard about her memos. It is so very very vintage JoAnne.

JoAnne isn't talking to renegade pre-commits, Kim.  She's talking to seasoned, trained, ethical, professional, stand up prosecutors.  Prosecutors who have somehow managed to remain upbeat and together despite all they've gone through after Hurricane Harvey.  I wouldn't talk to my dog the way JoAnne talks to prosecutors.

And I don't really like my dog that much.

In short, Hurricane JoAnne is having a far more detrimental effect on your prosecutors than Harvey ever did.  I hope that you'll do something about it.

Many moons ago, when you were working for the D.A.'s Office under Pat Lykos, I ran into you at the elevator bank of the CJC.  It was in the middle of all that crazy Grand Jury surveillance-era and you shook your head and said, "We really need to go grab a beer and catch up on what is happening around here."  Over the months and years that followed, when you and I saw each other around the building and always noted how we still needed to have that beer.

We never did have it, and I'm guessing you probably wouldn't want to have one with me now.  I understand. But all of this is what I would tell you if we were to have that beer today.

You have some of the best prosecutors in the world working for you right now. Treat them with the respect that they have earned and deserve, and they will help you accomplish all of those things that you want and need to do.