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.

6 comments:

Anonymous said...

Question at the 2:00 PM meeting:

"Given that we outsource all of our high-profile murder cases (David Temple, the Goforth case, etc), is there a policy in place that helps Special Section Division Chiefs (or their designee) decide which cases Ogg is too scared to take to trial?"


Nathan Hennigan said...

I’m just glad they are getting serious about working out the twenty thousand + pending cases sitting around. If these memos to JoAnne are honest and point out the credibility problems of witnesses and evidentiary problems with cases, I assume they will be discoverable under Brady and 39.14. I’d like them uploaded to ecase to save me time if possible. Thanks JoAnne for your continuing pursuit of justice.

Tom said...

I continue to be amazed at how criminal lawyers, including experienced prosecutors like Nathan, fail to understand the work product privilege. The Texas Supreme Court describes it this way:
"The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his or her case. The privilege continues indefinitely beyond the litigation for which the materials were originally prepared. the privilege covers more than just documents: it extends to an attorney's mental impressions, opinions, conclusions, and legal theories, The work product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney's interviews with parties and non-party witnesses."
In re Bexar County Criminal District Attorney's Office, 246 S.W.3d 182 (Tex. 2007).
Internal memos within the DA's office generally would be covered by the work product privilege.
However, parts of those memos could be subject to constitutional or statutory disclosure such as Brady or a witness' statement under 39.14. What must be disclosed is the facts, not the lawyer's opinion of how the facts fit into the case or the witness; credibilty.
Over the years, I've seen ADAs argue offense reports are work product. That's OK if the lawyer and the DA's office wants the cops to be their agents and to be personally responsible for cop screw ups.
If there's Brady in a memo to JoAnne, the ADA should have disclosed that information long before asking for a recommendation. The chief's opinion as to things like witness credibility (his opinion, not impeaching material like the witness's prior for perjury) is work product and does not have to be disclosed to anyone ever. The same holds true for things like the chief's opinion on, for example, motions to suppress evidence. It's his opinion and never discoverable. However, underlying facts may be Brady or discoverable under 39.14.
Having one person responsible for making recs on the most serious cases could and should add some consistency to the system. It's not like it's a new idea. For many years when I covered the DA's office for the Chronicle only Ted Bush, the trial bureau chief, the first assistant and the elected DA had the authority to dismiss a murder.
It's not new to require written memos for senior prosecutors making decisions. AUSAs do it all the time and I once was in Johnny Holmes' office when Ira Jones presented his memo and recommendation on seeking the death penalty in a capital murder.

Anonymous said...

This is wildly fascinating. In January 2017 Ogg proclaimed that the days of prosecutors “not having discretion” were over and that she trusted the decisions made by prosecutors who knew their cases. When asked in the same meeting about “dead body cases” Ogg proclaimed the same philosophy would apply (that is, after she first asked what a dead body case was).

But hey, without these memos flowing to JoAnne, how else is the office management supposed to know which murder cases they can use for political gains? Duh, Murray

Attorney said...

The writing in that email is terrible. It's a great example of someone trying to look smart by using an overly formalistic style. Varily I doth tell thou of mine intellect.

And "they" is plural. Using it in lieu of "he or she" makes this borderline unreadable.

Attorney said...

That paragraph is keeping me up. Here's a grammatical version that's 1/3 shorter. It's still a convoluted process, but at least literate people can understand it now:

"The Section Chief will review the memorandum and request any appropriate clarifications. When the Section Chief approves the memorandum, he or she will state whether he or she approves of the recommendation and forward it to the Division Chief and Deputy Division Chief. If the Division Chief and Deputy Division Chief approve of the recommendation, they will mark the memo as such and add it to eCase. If the Division Chief or Deputy Division Chief disagrees with the recommendation, he or she will meet with the Court Chief and Section Chief to address his or her concerns. Once a recommendation is approved, the Court Chief may convey it to the defense. Any counteroffers or deviations must be approved by the Division Chief."

Of course, that lengthy procedural discussion adds nothing that couldn't be conveyed in a straightforward statement: "Any offer on a dead body case must be supported by a memorandum from the Court Chief and approved by the Division Chief and Deputy Division Chief." I think the convoluted procedure is meant to hide the obvious: "All your discretion are belong to JoAnne."