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.