Saturday, October 6, 2018

An Eye Towards November

We are now officially one month away from Election Day, and people have been asking me when I'm planning on making my endorsements in the Criminal Justice Races for 2018.

Quite frankly, I've been dreading it. 

The reason that I've been dreading is that in almost every race this year, I have two friends (in some cases, close friends) running against each other.  Making recommendations under these circumstances is kind of like when my 4-year-old asked me at my birthday dinner whether I liked him or his brother better. 

Not to mention that who I endorse in these elections has absolutely no effect on the outcome.  What happens on November 6th will be dictated by National politics and the Beto O'Rourke/Ted Cruz election -- not me.

So, basically, I've viewed writing my endorsements as a fantastic opportunity to alienate literally half of my friends who are running, while effecting absolutely no change. 

But, I do want people who do bother to read this blog to know about the candidates.  I really do.  There are a lot of great candidates on both sides of the political spectrum and I want those people outside of the CJC World who do read this blog to know about them.  There are also some candidates running that aren't qualified to hold the positions they seek at all, and I definitely want the outside world to know about them.

As tough as this situation is for me personally, I think that it is a positive situation for Harris County.  We've all seen Party sweeps in the past that led to some very bad candidates taking power.  I'd much rather see situations where I know that we'll be in good hands regardless of who wins.

So, what I've decided to do is write up my election reviews, but withhold the official "endorsement" part of it.  I'll profile the races and the candidates.  I'll tell you the good, the bad and the ugly.  In some cases, who I think people should vote for may be very apparent.  In others, not so much.

As I learned in the primary season, this method will still piss off some of the candidates.  I was privately criticized for failing to criticize one candidate enough

I'll just have to take my chances with that.

Friday, October 5, 2018

More Musickal Micromanagement

For as long as anyone can remember, there has been a written policy in the Harris County District Attorney's Office regarding the handling of criminal cases involving fatalities.  Cases such as Murder, Manslaughter, Criminally Negligent Homicide, Intoxication Manslaughter, etc. all fell under the umbrella of what we called "Dead Body Cases" back in the days when I was there.

Although a prosecutor with the rank of Felony Two or higher was allowed to take a fatality case to trial, some decisions could only be decided by more senior prosecutors.  For instance, when a murder case was first filed, charges could only be accepted by the acting Chief who was working Intake at the time.  Although the Chief could file a murder charge, only a Division Chief could make the recommendation for what term of years could be made as part of a plea bargain offer.

Capital Murders, obviously, had a higher level of scrutiny because there were more decisions to be made.  Decisions like "is this case best filed as a capital or a non-capital murder?" and, more importantly, "do we seek the death penalty on this case?" had to be made by the elected District Attorney himself.  Capitals were reviewed by the Chief of the court they landed in, who then consulted with his or her Division Chief, who then took it to the Trial Bureau Chief, and then we all presented it to the District Attorney for the final decision.

The decision on how non-Capital Murders were handled was far less complicated.  The case landed in the court.  The Chief read it and decided whether he or she was going to handle it or pass it on to the Two.  Once the prosecutor had reviewed the evidence and talked to the victim's family, he or she met with the Division Chief, who would make the plea bargain recommendation.

It was a pretty simple process -- unless the case was extremely complicated, it was usually just a quick meeting.  All of the prosecutors involved relied on each other's knowledge of what they were doing.  I had the great fortune during my time as Chief that I supervised some very good Felony Twos.  I could rely on their assessments of cases.  Hopefully, my Division Chief had some level of confidence in me, as well.  I can only remember one instance where there was any disagreement over what recommendation to offer on a Murder case.

When Kim Ogg took over the Harris County District Attorney's Office, she vowed a review (and possible reworking) of the Office's Operations Manual.  It's only been 22 months since she made that vow, so we can still hold out hope that she might actually get that done before her first term of office is over.

In the meantime, the Powers that Be have recently decided that process of getting recommendations on Murder cases was just too damn simple.  Clearly, that meant that there was waaaaay too much discretion floating around in the Office.  Felony District Court Chiefs (who, once again, I will note have more experience at being a prosecutor than the Felony Trial Division Chief) were apparently running amok with their willy-nilly recommendations on Murder cases.

As usual, District Attorney Kim Ogg turned to the Grand Master of Micromanagement, JoAnne Musick, to get some Rules up in this place.

JoAnne did NOT disappoint.

In a memo this week, she outlined a modern marvel of procedure in the handling of Dead Body Cases.

Offers on Homicide Cases:
All offers on homicide cases must be approved by the Division Chief [JoAnne Musick] or her designee.  
"Designee?"  I feel like I'm back in law school, taking Trusts & Wills.
The general procedure shall be as follows:
The Chief of the court shall prepare a memorandum setting forth basic facts as well as mitigating facts and conclude with the Chief's recommendation.  A sample is attached.
Well, thank God there was a sample.  A high school education, college degree, law degree, and being a Chief Prosecutor in a Felony District Court in Harris County, Texas does not mean that you are smart enough to write a freaking memo from scratch, people.
The memorandum shall then be emailed to the appropriate Section Chief. 
What the hell is a "Section Chief"?  When did the Office get those?  Did we really need an additional layer of management between District Court Chiefs and Division Chiefs?
The Section Chief shall review the memorandum and, if appropriate, request clarification or additional information be added by the Court chief.  Once the Memorandum meets approval of the Section Chief, the Section Chief shall add any additional notes and state whether or not they concur with the chief's recommendation.  The Section Chief shall forward the final memo to the Division Chief and Deputy Division Chief.  If the offer is deemed appropriate, the Division Chief and Deputy Division chief shall then indicate upon the face of the memo to that the offer is approved and the final copy of the memorandum shall be added to eCase.  If the Division Chief and/or Deputy Division chief disagree with the recommendation, they shall schedule a meeting with the Court Chief and Section Chief to address their concerns.  Once an offer is approved, then, and only then, is the Court Chief authorized to convey the offer to the Attorney for the Defendant, or, in the case of a pro se Defendant, the Defendant.  Any counteroffers or deviations from the approved offer must be approved by the Division Chief.
So, if getting a recommendation on a Murder case was a football game, the process would look something like this:



I love the "once an offer is approved, then, and only then, is the Court Chief authorized to convey the offer . . ." which is JoAnne's little way of saying "your ass better not even think of deviating from my carefully planned out system."  Additionally, JoAnne has created a buffer zone with the requirement that the Section Chiefs must approve the form of the recommendation before bothering her (JoAnne) with looking at it.  I suppose this will give her more time to make up some more rules.

And the funny part is that after ALL OF THIS, a counteroffer (which, make no mistake about it, there will be a counteroffer) just goes directly back to the Division Chief.

And then JoAnne wrapped up her e-mail with this gem:
We know this is a departure from what has been happening since January 2017, and I'm sure you have plenty of questions.  For that reason, we will have a Q&A on Friday at 2:00 to address your concerns.
Um, yeah.  Because nothing makes learning a new ridiculously micromanaged new policy more palatable than having a meeting about it at 2:00 p.m. on a Friday.  Were you sure that you didn't want to just call a mandatory meeting at 7:00 a.m. on a Saturday, Jo?

Look, I understand that Murder cases are the most important cases that a District Attorney's Office is tasked with prosecuting.  I'm not making light of that, nor am I suggesting that those cases not be taken seriously.   However, having good prosecutors who actually know how to try a murder case is far more important than having a regimented procedure of how to place recommendations of them.

Unfortunately, Kim Ogg and JoAnne Musick have proven to be much more adept at running experienced prosecutors out of the Office rather than cultivating them.  As long as they continue to get rid of good prosecutors, nobody is going to be all that impressed by the recommendations stemming from the Musick Plan.

It's just the sound and the fury, signifying nothing.

Tuesday, October 2, 2018

Client Communications

Like most attorneys, I'm heavily reliant on my cell phone for pretty much everything I do in the course of my job.  From my calendar to my contact list to my case management software, I have everything I need on my cell phone.

I've also found that text messaging with my clients is the fastest and most efficient way to deal with quick questions that don't require full-length conversations.   If my client is out on bond, I make sure that they have my cell phone number and I tell them that the fastest way to get an answer from me about something is to just shoot me a text message.

Obviously, there can be some pitfalls with letting clients have your cell number.  Clients and their family members sometimes don't respect the fact that you might not appreciate a phone call at 5:30 a.m., for instance.  Sometimes clients give your number to "prospective clients" who don't have any intention of hiring you, but would love some free legal advice since they have your number.

But, on the whole, the benefits have outweighed the downsides for me. So, I always exchange cell phone numbers with my clients when we first meet.

This morning, I was appointed on a new case.  After giving her my business card, I went through the usual steps of giving my new client my cell phone number.

It went something like this:

ME:  I usually communicate with my clients by text message, so let me get your cell phone number.

CLIENT:  Okay.  [GIVES ME CELL PHONE NUMBER]

I created a new contact for her.

ME:  I'm going to send you a text message now, so that you have my cell phone number.

CLIENT:  Okay.

I send her a text message that reads:  "This is Murray."

ME:  Okay, we don't have any of the Discovery on the case so I'm going to go get you a reset and get you out of here today.

CLIENT:  Okay,  Sounds good.

I then went to reset the case.  As I was talking to the coordinator, I received a text message.


Literally, two minutes had passed since I had texted her.

I got the reset and then walked over to the client, who was looking at her cell phone.

ME: I'm Murray.  I told you I was sending you my cell number.

CLIENT:  What?

ME:  You just texted me "Murray who".

CLIENT:  No, I didn't.

She then looked at her phone.  

CLIENT:  Oh wait, yeah I did.



These are the types of moments that never seem to make it into legal dramas.