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.

Wednesday, February 14, 2018

Top 10 Excuses from the D.A.'s Office for Hiring a Convicted Felon to Be a Prosecutor

As most courthouse regulars know by now, the Harris County District Attorney's Office had an embarrassing situation this week after hiring Marlene Bovell, a convicted felon, to be an Assistant District Attorney.  Here are the Top 10 Excuses that I think the Office could potentially use in this scenario.  So, here we go . . .

The Top 10 Excuses from the Harris County District Attorney's Office
for Hiring a Convicted Felon to Be an Assistant D.A.

10.  The Office was just feeling kind of self-destructive ever since Drew Rountree left.

9.  Someone needed to drive the Justice Trolley.

8. Still had Parental Controls activated on the Investigators' Google accounts, so there was no way they could have ever found out plainly obvious information from the Internet.

7. Hey, if the Trump Administration can employ crooks, why can't we?

6.  She told us that she didn't like Keiter, either.

5. She had a law degree and a pulse.  Have you seen our attrition numbers lately?

4.  She came highly recommended by David Temple.

3.  Leitner needed a personal trainer at his intake gym.

2.  Denholm smeared ketchup all over the Criminal History portion of her job application.

1. Let's just say that with the way we've been managing our budget, a little check fraud in the future wasn't totally out of the question.

Tuesday, February 13, 2018

A Lack of Civility

It isn't difficult to empathize with the Civil Judges and lawyers who regularly practice at the the Civil Justice Center located at 201 Caroline.

When Hurricane Harvey wiped out the Harris County Criminal Justice Center (for the third time), the Criminal Bar showed up at the Civils' doorstep like Cousin Eddie at the Griswolds'.  We had no place else to go and the Civil Court judges welcomed us in.  That couldn't have been easy.  Imagine if someone came to you and asked you to vacate your office for a group of relative strangers.

The vast majority of the Civil Judges have been more than gracious hosts.  For those that didn't outright give up their courtrooms to bunk up with other judges, the rest have been very generous in sharing their space with criminal court dockets.  On those occasions when the Civils have needed their courtrooms back for their own trials and hearings, they have been pretty accepting of the Criminal Courts working their dockets in the front foyer.

I'm sure news that the CJC would be closed for six months, wait, I mean a year, no two years, make that two years at a minimum, didn't help the Civils maintain a cheery outlook about the current situation.  For two of the Civil Court judges, things reached a boiling point today.

Judge Kyle Carter

125th Civil District Court Judge Kyle Carter has been sharing his courtroom with the 208th and 209th Criminal District Courts since the flood.  This week, the 208th was in trial, so the prosecutors and defense attorneys with cases in the 209th relocated to the kitchen area behind the courtroom.  On Monday, when Judge Carter's staff came to use the kitchen area, they were apparently none too pleased to find the area occupied.

Shortly after this, Judge Carter (who, keep in mind, was not the Judge in trial) appeared and wanted to speak to the prosecutor in charge.  When the Felony Two responded to the Judge that he was a prosecutor, Carter is reported to have dressed him down in front of his court staff, admonishing him that the next person who was "loud" in the area would be held in contempt.

I'm not exactly sure what the grounds would be for holding a prosecutor in contempt.  There was no indication that the prosecutors were disturbing any court proceedings.  It sounds much more like Judge Carter was just appeasing his staff who wasn't happy about having their lunch space invaded.  Apparently, Carter lost sight of the fact that these are taxpayer-funded public buildings, not personal property belonging solely to him and his staff.

The prosecutors of the 209th made the decision that discretion was the better part of valor, however.  Rather than inform Judge Carter that his threats of contempt weren't, shall we say, legal, they elected to move today's docket to a spot in front of the windows at the end of the hallway.

For those of you unfamiliar with the layout of the floors of the Civil Building, please be aware that this is a small alcove at the end of the hallway.  It blocks no doors or elevators.  There are no violations of the Fire Code.  It is simply a table and chairs set up in an area where people are free to congregate in hopes of not offending the delicate ears of Judge Carter.

Problem solved, right?  Not so fast.

Enter, Judge Ravi K. Sandill of the 127th Civil District Court . . .

Judge Ravi K. Sandill

This morning, Judge Sandill was walking down the halls of Civil Building and saw the 209th's set up in the hallway.  Apparently, it didn't sit well with him.  He inquired as to what exactly the prosecutors were doing in the hallway.  They explained the situation to him and he left.

He returned a short time later and began taking pictures of the prosecutors. Shortly thereafter, Clay Bowman, the District Courts Administrator showed up to express his displeasure.

So, to recap, the 209th can't be in the courtroom because there is a trial going on.  They can't be in Judge Kyle Carter's break room because he will hold them in contempt.  They can't be in the hallway because it makes Judge Sandill uncomfortable.  I'm genuinely curious to see where the Fighting 209th will be tomorrow.  Perhaps District Attorney Kim Ogg can requisition a Justice Trolley that just slowly makes circles around the Civil Building.

Again, I'd like to point out that the vast majority of the Civil Judges have been nothing less than completely welcoming and cognizant of the fact that the Criminal Justice System is currently operating under emergency conditions.  

By the way, it is also worth noting that the Judge of the 209th District Court is Judge Michael McSpadden, who has been on the bench for over 35 years.  That's longer than Judges Sandhill and Carter have even been attorneys . . . combined.

Monday, February 12, 2018

The 2018 Contested Republican Primaries

The contested primaries on the Republican side are fewer and farther between than on the Democratic side, due to the fact that many of the benches are held by incumbents. 

In total, there are two contested Criminal District Court benches (both where there is no incumbent) and two Criminal County Court at Law benches that are contested.

Before I get to those, I would like to bring to your attention that former prosecutor and longtime defense attorney Terry Yates is running for Justice of the 1st Court of Appeals - Place 7 against Katy Boatman.  I don't know Katy Boatman, but I've known Terry pretty much since I walked in the door of a Harris County Courthouse.  I'm a big fan of his, as I am his brother, Denny, and his wife, Judge Leslie Brock Yates.   Terry has viewed the Criminal Justice System from both the prosecution and defense sides.  He would make a great Justice.

Now onto the District Court benches.  I will start off by saying that I've dreaded writing about both of these races ever since the fields were finalized.  The reason being that in both races, I have friends running against friends.  I'm glad that the primary is only a few weeks away, because I look forward to this contest being over.

In the 185th District Court race, former Judge of the 176th District Court, Stacey Bond, is running against former Harris County Assistant District Attorney Maritza Antu.  Maritza left the Office at the end of 2016 as a Felony Chief prosecutor.  She was a talented prosecutor and she has carried on in the world of prosecution as an attorney pro tem on behalf of the State of Texas.  She was/is a tough prosecutor, but I always found her to be fair.  She, and her husband, Matt Peneguy, are family friends and our kids go to school together.

Stacey Bond was a phenomenal judge during her entirely-too-short tenure as Judge of the 176th.  She was a victim of the Democratic sweep of 2016 despite being highly regarded by both the State and the Defense.  Prior to becoming a judge, she was a former Harris County Assistant District Attorney and a longtime Defense Attorney.  I practiced in her Court regularly, and it was truly one of the best courts to work in (even with that mildly cantankerous court coordinator).  Stacey had compassion, knowledge, and the guts to make tough decisions.  I have nothing negative to say about Maritza, but Stacey was one of the best judges I have ever practiced in front of.

In the 263rd District Court race, former Harris County prosecutor Justin Keiter is running against longtime Defense Attorney Charles Johnson.  I've known Charles since I was a prosecutor and have always enjoyed working with him.  In my experience, he is professional, diligent and caring about his clients.  He is laid back and would exercise great judicial temperament. 

Justin (who is normally referred to just as Keiter) is a former prosecutor who is also currently practicing as a defense attorney.  Keiter's demeanor as a prosecutor was something that can probably best be described as "die hard."  He was very vocal about his job and his cases and that sometimes tended to rub the Defense Bar the wrong way.  I should know.  I was his Chief.

As Keiter's chief, I saw a side to him that most people who only saw him in court did not.  He was one of the hardest working and most dedicated people that I ever supervised during my tenure.  He wrapped himself up in his cases and fought hard for the victims on those cases.  He was passionate, almost to a fault.  Okay, sometimes to a fault.  But that was because he was so driven to see that Justice was done.  Those who bothered to get past the verbal sparring that came with dealing with Keiter in court were often surprised to find a compassionate and reasonable prosecutor.  He was also a talented trial attorney when it came down to it.

Keiter is also probably one of the most intensely loyal friends I've ever had.  I had a lot of preconceived notions about him when I first began supervising him, but those all changed the more I got to know him.  He has a perspective into the System that he isn't given enough credit for, as well as a tremendous amount of compassion.  Although I know some in the Defense Bar may disagree, I believe he would make a very good judge.

I've already written at length about the pros and cons of the candidates in the nasty battle for County Court at Law # 8, where defense attorney and former prosecutor Dan Simons is running against longtime incumbent Jay Karahan.  I'm not going to repeat what I already wrote over here.  I will just say (as I did in the other post) that Judge Karahan is a very good judge and he deserves to be re-elected.  I've got nothing whatsoever against Dan, but Judge Karahan is the clear choice in this race.

And finally, in the race for County Court at Law # 11, a longtime prosecutor, Aaron Burdette, is running against a longtime defense attorney, Lori Botello.  I have to admit bias on this one, because I know Burdette so much better than I know Lori.  He's actually my neighbor.  I consider him to be a very good friend and I think he would make a great judge.  That's not to say that Lori wouldn't.  I don't recall having too many dealings with her during my time as a prosecutor, but I know that she is an active member of the Defense Bar who has a good reputation as an attorney.

I'm sure if you have read over this, you may notice that I failed to make an actual recommendation in 75% of the races.  That wasn't an accident.  I have too many friends running in these races, and, as I noted in my write up on the Dems, this blog isn't worth losing a friend over. 

Feel free to share your insights.  Just keep them above the belt.

Sunday, February 11, 2018

The 2018 Contested Democratic Primaries

With the Democratic sweep of 2016 in Harris County, it is not much of a surprise that candidates came out of the woodwork to run for the remaining judicial benches in 2018.  With one exception, all of the Dems running for Criminal District Court benches are uncontested.  One of the three Juvenile District Court benches is contested in a three-way race and seven of the Criminal County Court benches are contested.

In the vast majority of these races, I have nothing negative to say about the candidates, other than noting years of experience and dedication to criminal law.  In a few of the races, I have a friend running against another friend.  I'm not going to pick favorites in those races.  This blog is definitely not worth losing a friend over.

Before I dive into the contested criminal benches, I do want to point out that we have at least three attorneys with ties to our CJC world who are running for either Civil or Family Court benches.

In the 234th District Court, Harris County Assistant District Attorney Lauren Reeder is running in a contested primary against Jeff O'Dea.  I don't know anything about O'Dea but I'm a big fan of Lauren's.  Lauren got her start as a lawyer in the Civil arena, although she's been a prosecutor for awhile.  As a prosecutor, she is diligent, fair and kind.  Those are the qualities that would make her a great judge regardless of what type of bench she is running for.

In the 269th District Court, HCDA Alum Cory Sepolio is running in a contested primary against Shampa Mukerji.  Again, I don't know anything about Cory's opponent, but Cory was a good prosecutor who is doing great in the civil arena.  He's also a good friend and a great person.  He would also make a fantastic judge.

In the 280th Family District Court, Harris County ADA Beth Barron is running for the Democratic nomination against Barbara J. Stalder.   I could fill an entire blog post on how highly I think of Beth.  She has devoted almost her entire career as a prosecutor to handling family violence cases, and she started at that Office long before I did.  For years now, she has been handling Protective Orders exclusively, which means she's been working in the 280th on a daily basis, helping secure legal protection for women (and sometimes men) in abusive relationships.  I've dealt with Beth on a professional level and I am also proud to call her a friend. She is uniquely qualified for this position and if you are voting in the Democratic primary, I hope you vote for her.

Now, onto the District Court bench . . .

The 185th District Court appears to be the only contested bench on the felony criminal side, and that race pits HCDA alum and current defense attorney, Jason Luong against attorney Brennen Dunn.  I don't know that I've met Mr. Dunn, but his attorney profile on indicates that he practices several branches of law in addition to criminal law.  There's nothing wrong with that, but Jason has devoted the entirety of his career to criminal law.  He was a prosecutor and now a defense attorney.  Criminal law is what he deals with every day.  Additionally, Jason has been practicing for 17 years, compared to Brennen's 7. 
Jason Luong is unquestionably the more qualified candidate in this match up.

And the County Courts . . .

In the County Court at Law # 2, Defense Attorney Harold Landreneau is running against Ronnisha Bowman.  Here again, Harold devotes the vast majority of his practice to criminal law while Ronnisha only lists 20% of her practice as being devoted to criminal.  She includes personal injury and entertainment law as other practice areas.  Additionally, Harold has been a licensed attorney over twice as long as his opponent.
Harold Landreneau is the more qualified candidate in this race.

In the County Court at Law # 5, there is a three-way race between Defense Attorneys David Fleischer, Armen "Hammer" Merjanian, and Aaron Saldana.  I'm not familiar with Aaron Saldana, but that's not surprising.  He's only been licensed as an attorney for three years.  I do know Armen Merjanian, and he's a very very nice guy, but he's only been licensed for four years.  By contrasat, David Fleischer has been practicing exclusively criminal law for the past 13 years, and he was trained by some of the best defense lawyers in the business.  He spends the majority of his practice in the county courts and I've seen him in there, day in and day out, doing every thing he can to make the County Courts more fair for his clients.  His years of experience are almost twice that of his opponents' combined.,
David Fleischer is the clear choice for this race.

In the County Court at Law # 7, Defense Attorney Andrew Wright is running against Danval Scarbrough.  I've never heard of Danval Scarbrough, which isn't surprising considering the fact that (according to AVVO), he doesn't practice criminal law.  When it comes to elections, nothing is more infuriating to me than a lawyer who runs for a bench in a field he or she knows nothing about.  I suppose the desire to be called "Your Honor" supersedes the necessity for being qualified.  By contrast, Andrew Wright has been doing exclusively criminal defense during his ten years of practice.  Like David Fleischer, he is a staple of the misdemeanor courts who can be found, every morning and afternoon, trying to help his clients charged with crimes.
Andrew Wright (with his Rock Star hair) is unquestionably the best candidate for this race.

In the County Court at Law # 11, Defense Attorneys Gus Saper and Sedrick Walker are running against each other.  I know both Gus and Sedrick and I like them both immensely.  I dealt with Sedrick when he was a prosecutor and enjoyed working with him, and Gus has been practicing criminal law, literally, since I was two years old.  Both of these candidates are good men and would be good judges, but Gus has a significant advantage in the experience category.
Gus Saper is the best candidate for this race.

In the County Court at Law # 12, Defense Attorney Juan Aguirre is running against Cassandra Holleman.  Here, again, I don't know Cassandra, but the reason for that is that she does not appear to practice criminal law.  As noted above, that bothers me greatly.  Making decisions that affect human freedom is not something that should be handled by people who don't know criminal law.  By contrast, my friend, Juan, has done nothing but criminal law since being a lawyer.  In addition to being a former prosecutor and longtime defense attorney, Juan is also, quite literally, one of the best people I know.  He is the embodiment of the first person to volunteer to help whenever humanly possible.  He's a devoted husband, father and friend.  He would make an amazing judge.
Juan Aguirre is unquestionably the best candidate for this race.

In the County Court at Law # 13, Defense Attorneys Mike Renfro and Raul Rodriguez are running against each other for the Democratic nomination.  I'm proud to call both of these guys my friends and attorneys that I respect.  I won't be picking a candidate in this race because either candidate would do a great job.  Both have decades of experience with Mike having practiced for 39 years and Raul for 26.   Either choice would be great.

In the County Court at Law # 15, Defense Attorneys Kris Ougrah and Tonya Jones are running for the Democratic nomination.  Kris has seniority over Tonya with his 13 years of practice compared to her 6.  Honestly, I don't know either candidate well enough to give any personal insight to their qualifications.  I did read this morning that the Houston Chronicle had endorsed Kris after calling him "loquacious" (which I had to ask my wife to define for me), but they also said some very nice things about Tonya.  I spoke to Tonya by email a week or so ago, and she seems like a very nice person.  I hope to get to know both attorneys better in the future, because they both sound like great candidates.

And finally . . .

The 313th District Court has a three-way race with attorneys Tracy Good, John Stephen Liles, and Natalia Oakes running against each other.  The only candidate that I know personally in this race is John,  whom I dealt with during my brief stint assigned to the Juvenile Division back in 1999.  He seems like a nice guy, but I don't know much about him other than that.  Analyzing qualifications for a juvenile court is a challenge, because the Court handles matters other than just criminal.  It also handles CPS issues, and (I think) adoptions on occasion.  My understanding is that all of the candidates are routinely practicing in the juvenile courts.  I'll just have to leave it to the commenters here to discuss their individual qualifications.

So, that's a wrap for the Democratic side of things.  I will try to do a write up on Republicans in the next few days.

Thursday, January 25, 2018

The Nasty Battle for Court Eight

The vast majority of judicial races that I've observed during my time in Harris County are relatively dull events.  The candidates tersely refer to each other as "my opponent" and tout their dueling resumes, but that's the extent of the battling for the most part.  Things can be a little more heated during a contested primary, but those races rarely get as ugly as "Top of the Ballot" races like District Attorney or Sheriff, etc.

The lack of viciousness in the judicial races is probably due to the fact that there are so many races to run in at the judicial level.  In the 2018 election in Harris County, there are 15 criminal county court benches up for grabs and 13 criminal District Courts (plus 3 juvenile District Courts).  There are so many different races available to those who want to be judge, that most of them don't even have contested primaries.

But there are exceptions to every rule, and sometimes judicial races do get a bit nasty in the primaries.

Especially in the Republican primaries.

The reason that the Republican primaries are more susceptible to nastiness is directly attributable to what all aspiring candidates refer to as "The Slates."  When speaking of the Slates, one is typically addressing the "Big Three" of publications put out by self-anointed Republican moral spokespersons Stephen Hotze, Gary Polland, and my personal favorite, Terry Lowry -- the lizard who's assessment of how Godly a candidate is seems to directly correlate with how much money that candidate donates to Lowry's publication, The Link Letter.  Don't get me wrong, all three of them take pay-for-play money before making their endorsements.  Lowry's just appears to be the most-unapologetically mercenary and the hit pieces he writes on his non-endorsed candidates are far more below the belt than Polland and Hotze.  Usually.

For Republican candidates, to get the "endorsement" of all three of the Slates is an almost insurmountable advantage.  They use the money they collect from candidates to generate mailers that go out to voters who have a history of voting in Republican primaries.  The mailers have a check list telling the reader who to vote for.  Sadly, the Sheeple who read their garbage take those mailers to the polls and vote accordingly.  I've worked a couple of polls on election days over the years and the amount of voters who carry their mailers in to vote is truly distressing.

The climate that Lowry, Polland and Hotze have created within the Harris County Primary is that to win in the GOP primary, you simply have to be the candidate who is the furthest to the Right.  There is no room for moderation.

Which brings us to the Republican Race for Judge of Harris County Court at Law # 8, a bench that has been held by Judge Jay Karahan for the past 14 years.  Traditionally, an incumbent with so many years under his or her belt would never draw a primary opponent.

Unfortunately, Judge Karahan has run afoul of the Slates by <gasp> officiating over a same-sex marriage.  For some of us (who were raised in Republican families and have historically voted in every single Republican primary since 1992), Judge Karahan's decision to officiate over a same-sex wedding is a good thing.  Republican views on homosexuality are stupid, homophobic, and self-destructive.  NOTE:  I could write an entire post on the Republican platform on Gay Marriage, but suffice it to say that I know a large amount of gay men and women who are very dear to me and that is not a topic that is debatable here.  If you want to bash gay marriage, feel free to go over to Lowry's website.  He exists because you feel the way you do. On my website, judicial qualifications aren't based on who can be the most hateful.

But I digress.

Because Judge Karahan ran afoul of the Far Right within the Harris County Republican Party, the Slates summoned a pre-approved candidate to run against him.  That candidate is former-prosecutor and now a defense attorney, Dan Simons.

Now, before we go on, I want to be clear about something.  Dan is a controversial candidate to some, but he has never been anything but professional and nice to me.  I don't know him particularly well, but when I dealt with him as a prosecutor, he was reasonable, heard me out, and took the time to listen to my client's side of the story in a felony case.  I appreciate that.  But I want to acknowledge that there are others who know him far better than I do.

When I first heard that Dan had been recruited to run against Judge Karahan, my first thought was "that's a shame."  Not because I had anything against Dan.  I just felt that his recruitment was an utterly ridiculous thing to happen.  Judge Karahan is an excellent and very active judge.  He is well liked amongst the prosecutors and the defense attorneys who appear in front of him.  Regardless of how one feels about him performing a same-sex marriage, it is completely immaterial to the job he does as a criminal county court at law judge.  

The next thought I had about Dan running was "how many years has he been practicing?" If I recall correctly, Dan hadn't been at the office all that long before going to work for my friend, Mark Thiessen.  He served for over three years at the D.A.'s Office (which is the "gentleman's agreement" that incoming prosecutors sign up for) but Judge Karahan has been on the Bench since long before Dan even entered law school.

It didn't take long for things to get ugly.

Both Team Karahan and Team Simons came out swinging.  Much like in the Han Solo/Greedo debate over "who fired first," I'm not exactly sure who fired the first shot.  Dan gave a speech at a Republican function that blasted Karahan for the amount of weddings he performed, as well as the amount of money in Karahan's campaign war chest.  At some point along the line, Simons was arguing that he needed to be elected to "restore integrity" to Court Eight.  The obvious implication being that Court Eight was somehow lacking it.

Team Karahan responded with a website entitled "Never Dan Simons" and held nothing back.  A highlighted list of negative evaluations from Dan's time at the D.A.'s Office and some spotlighted cases that questioned his judgment as a prosecutor were the lead off.  It went deeper after that with some pretty personal mudslinging.

Judge Karahan posted on Facebook, encouraging his Democrat friends to cross party voting lines in the primary for him, and Simons blasted his disloyalty to the party.  The back and forth continues even as of this writing.

The situation dismayed me from a personal standpoint, and I made the comment on a friend's Facebook page that I was sorry to see it getting to that level.  That friend properly called me out for my own hypocrisy considering how many times I've gone negative here on the blog on people I considered to be unqualified candidates for benches.  It was a fair point.  Consider this paragraph my mea culpa on that.

In the final analysis, Judge Karahan deserves to be re-elected.  He has an amazing resume leading up to his time on the Bench, and he's been a damn good judge on the bench.  That's nothing against Dan.  It's just that I believe that good judges should keep on judging.  I wish this race hadn't gotten to the point that a Never Dan Simons website had popped up, but that's because I personally like Dan.  I don't think he has the resume and qualifications that Judge Karahan does, but I don't think that he's the demon portrayed on the campaign sites, either.

It will be interesting to see how powerful the Slates are in this particular battle.  Judge Karahan has some big name endorsements outside of the Slates, including but not limited to County Judge Ed Emmett.  The winner will face off against Democratic candidate (and my former roommate!) Franklin Bynum in November.

My write up on Franklin will probably be contingent upon how well we are getting along on the day I write it.  He's like the little brother I never had.  I love him to death, but we fight all the time.  I do need to point out that this picture makes him look like he should be showing kids how to do a science project on PBS.

Those are just my random and disjointed thoughts on the Race for Court Eight.  Whether you are Team Karahan, Team Simons or Team Mr. Wizard Bynum, please just remember to get out there and vote.

Tuesday, January 16, 2018

A Blizzard of Confusion

Okay, maybe calling the small ice storm a "blizzard" is a mild exaggeration, but it works well for the title. 

In all honesty, it probably doesn't even qualify as a "storm," but it is cold outside with precipitation and we all know that tends to confuse Houstonians.  It's kind of like having a successful pro sports team.  We hear that those exist in other parts of the country, but it's been so long since it happened here that we don't know what to do with ourselves.

Most governmental agencies in Harris County tend to err on the side of caution and just shut everything down.   With the weather forecasters predicting a freeze coupled with precipitation, the Houston Independent School District had announced school closures by mid-afternoon yesterday.  With that announcement, those of us with kids (who were now slated to stay home from school) turned our attention to what was going on with the criminal courts.

County Judge Ed Emmett was the first to speak on the topic by indicating that Harris County buildings would remain open.  By doing this, he basically punted to the different elected officials who resided within those buildings to determine whether or not they would be open.  I can understand why Judge Emmett would punt.  He didn't want to be the guy who singlehandedly gave the entire county a paid day off.

But by punting, he caused all of us who work within the Harris County Criminal Justice System to require 38 different answers from 38 different elected judges.  Complicating matters was the fact that Monday was Martin Luther King. Jr. Day, so none of those elected judges were at work to give definitive answers.

Fortunately, through the District Courts' website and Facebook page, the answers became available quickly for some of the felony courts. 

Additionally, Harris County District Clerk Chris Daniel was quick to announce that jury service for Tuesday was cancelled.

While this was certainly a substantial number of courts, it wasn't all of them.  There were several District Courts not on the list of closures, not to mention none of the sixteen County Courts had made a formal announcement.  Two of the County Court Judges (Judge Mike Fields and Judge Jay Karahan) took to their Facebook pages to announce that they would be closing their courts.  This morning, word was informally shared that ALL of the County Courts would be closed.

But there were still a couple of District Courts that had not spoken up yet, and there was total confusion as to whether or not the male and female Jail Dockets were being held.  One of the District Courts had a recorded voice message stating that the office was closed due to inclement weather, but the judge of that court had announced that he planned to have his afternoon docket as scheduled.  He ultimately relented and cancelled his 1 o'clock docket, but not until noon.

I'm sitting second chair on a case in that court with my good friend, Korey Huff, and the advice we gave to our client this morning went like this:

Call 1 -- "We haven't heard anything.  You probably need to come in."
Call 2 -- "The voicemail for the Court says they are closed, so you don't need to come in."
Call 3 -- "Nope.  Wait.  Sorry about that, they are now saying Court is open.  You need to come in."
Call 4 -- "Sorry again, now they are saying you don't need to come in."

It was embarrassing.  Nothing instills confidence in a client like decisiveness from his or her attorney.

Criminal Defense Attorneys on Facebook were blasting the lack of consistency and advance notice from the Judges.  That wasn't really fair to the judges who had made the effort to give quick notices of cancellations, but I understand the frustration. 

Believe me, I understand.  I was one of a handful of attorneys who drove in this morning for a jail docket, only to be told that they weren't able to bring over prisoners because the jailers were short-staffed.

It would seem to me that there should be a pretty simple solution to this confusion.  Both the District Court and County Court Judges have a presiding judge.  The individual judges should just vote to bestow power to those presiding judges to make the uniform decision of whether or not to shut down the courts.  They can make a decision the day before and they can publish that on a unified web page.

I get that the decision to shut down court is not one to be made lightly.  A missed day in court can lead to people being incarcerated longer than necessary.  But at the end of the day, sometimes public safety demands just that.

Sunday, January 7, 2018

Ryan Patrick Swearing In

Happy belated New Year, everyone.  I'm glad to be starting the New Year with some good news.

Former 177th District Court Judge Ryan Patrick is being sworn in tomorrow, Monday, January 8th as the U.S. Attorney for the Southern District of Texas.  Although a ceremonial investiture will be taking place in February or March, he will formally begin his job by being sworn in tomorrow at 8:45 a.m.

He is being sworn in in the courtroom of Chief Judge Lee H. Rosenthal (in the Federal Courthouse at 515 Rusk, Courtroom 11B) and all are invited to attend.

Ryan was a great prosecutor during his time at Harris County and a great judge.  I know he'll do well in his new position, and I'm proud to call him my friend.