Tuesday, December 3, 2019

Supporting Other Candidates in a Kim Ogg World

Around 9 a.m. on December 24, 2008, Acting Harris County District Attorney Ken Magidson called me into his office and told me (for the second time in a month) that I was fired.

"I'm firing you for what you wrote on your blog.  It's too much."

He actually uttered those words.

Under the circumstances, I was caught off guard.  I was already planning on that day being my last at the Office and taking comp time for the remainder of 2008.  My contract wasn't going to be renewed so I was done effectively at midnight on December 31st, anyway.

But getting fired cost me some money.  There was no taking comp time if you didn't work there anymore.  I think all in all, Magidson's decision to pull the trigger as an early Christmas present cost me around $4,000.  Given the fact that I was going through a divorce and had child support looming, that was kind of a kick in the financial crotch.

Over the past eleven years since that fateful day, I've revisited the idea of whether or not I should have filed a lawsuit on many occasions.  I thought about it.  In the end I decided it really wasn't worth the effort.  My life was going through a reboot at the time, and adding the pet project of a lawsuit wasn't really all that appealing.

There is still a part of me that wishes I had, because when Magidson uttered those words, he was telling me that he was terminating my employment because of words I had written -- outside of work -- while expressing my opinion.   Sometimes I wish I had made a different decision at the time, just for the principle of defending my 1st Amendment rights. On occasion, I get really angry at 2008 Me for not doing that.

I bring this up now for a couple of reasons.

Campaign season is upon us, and as I have mentioned before, there are already six candidates lined up to challenge incumbent District Attorney Kim Ogg for her job.  Several of those candidates are immensely more popular with prosecutors at the Office than Ogg is.  Given their druthers, most prosecutors that I know (and I know a whole lot of prosecutors) would love nothing more than to support the candidate of their choice.

But unfortunately, they work for Kim Ogg.  And as Ogg demonstrated last month by firing Andrew Smith, she is not afraid to fire an employee for blatantly unethical (and quite possibly illegal) reasons.  Although the job of a prosecutor is to seek justice, in Ogg's paranoid world, the primary job is to be loyal to her.  As she demonstrated with Andrew, she ain't afraid to shank somebody for crossing her.

As a result of Kim's erratic and ruthless behavior, don't expect to see too many current prosecutors exercising their 1st Amendment right to support a candidate other than her Royal Oggness.  Ogg's level of paranoia and retaliatory nature make Pat Lykos seem like Mahatma Gandi.  And keep in mind that Lykos had some of her loyalists staking out fundraising events for Mike Anderson, and she also seriously jacked with Carvana Cloud to retaliate against Carvana's support of Clarence Bradford for D.A.

I would imagine that Kim Ogg will be far more retaliatory towards any employee that she finds supporting any other candidate.  I say this in advance because I hope that nobody thinks that a lack of current prosecutors showing up at fundraisers for other candidates means that they don't support those other candidates.  They just don't want to get fired for that support.

From the outside, looking in, it is easy for critics to say, "Well, if they hate working for Kim Ogg so much, why don't they just quit?"  I heard that line a lot in 2012 when Mike Anderson was running against Lykos.  I'm sure we'll hear it again over the next few months.  It was a stupid criticism then and it would be equally stupid now.  Losing a job is a devastating event -- especially when you have a family to support and need things such as money and insurance.

Not to mention being a prosecutor is a fantastic job.  One can be loyal to the job without being loyal to the paranoid despot who is the current District Attorney.

If you are a current employee of the Harris County District Attorney's Office and you don't want to risk your job by supporting another candidate, there are still many things that you can do to give support. 

First and foremost, tell your family, friends, and neighbors your thoughts in private conversations.  Let them know what you think of your current boss and tell them why you think somebody else would make a better choice.  Encourage those same family, friends, and neighbors to learn more about those candidates and attend those fundraisers and "meet and greets" that you can't safely attend.  Let them know why you can't speak out in public, but find a way to educate them.  Encourage THEM to make a donation since you can't.

Although I don't know if this is still the current law, back in 2012, a candidate only had to list a donor who gave $50.00 or more to a campaign.  There were a lot of folks who donated $49.99 to Mike Anderson's campaign back then.  You don't have to go out in a blaze of glory by starting a blog that bashes Ogg or anything stupid like that, but you can still help other candidates if you so choose.

Sometimes, those little gestures of support are far more sincere and powerful than any donation or attendance at a fundraiser.

Monday, November 18, 2019

Episode Four: A Glimmer of Hope - a One Act Sci-Fi Play

SCENE:  The Star Destroyer Jefferson hovers over Downtown Houston.  It has been two years since the Death Star was destroyed by Harvey and workers are now occasionally working to make it fully operational again.  [INTERIOR] The Observation Bridge leading into the Imperial Throne Room.  Two Imperial Officers are standing outside the entryway to the Throne Room, speaking in hushed whispers.

VICE ADMIRAL MITCHAM:  Corporal Leitner, do you have news?

CORPORAL LEITNER:  Yes, Vice Admiral, and I'm afraid it is all bad.

VICE ADMIRAL MITCHAM:  How bad?

CORPORAL LEITNER:  Bad enough that I'm afraid to tell her.  She's been in such a terrible mood since firing Denholm the Hutt.

VICE ADMIRAL MITCHAM:  Yes, I know.  I had hoped that firing Andrew Wan-Kenobi would have cheered her up some, but it hasn't.  As it turns out, most of the Jawas were big fans of his and when she struck him down, he became more powerful than she could have possibly imagined.

CORPORAL LEITNER:  What can we do?

VICE ADMIRAL MITCHAM:  I do not know.  We hired Jar Jar Rogers as a full-time stormtrooper so that she could give around-the-clock press conferences.  Those do make her so very happy.  He and Cad Dane are in with her now.

As if on cue, the doors open and Jar Jar Rogers and Cad Dane exit the Imperial Throne Room.

JAR JAR ROGERS:  Mooey mooey Boss Ogg!  Deesa be the bestest pressa conference ever!  Even da Cad Dane Schiller say so!

CAD DANE:  Yes, Empress.  You are truly beloved by the masses.  Only a truly biased person would find error in any of your ways.

JAR JAR ROGERS:  Deesa deferred adjudification plan off your is the besta ever, Boss Ogg!  Yousa the smartest prosecutor ever for inventing it!

EMPRESS OGG:  You two are wonderful.  You know I love giving press conferences.   Have a press release out immediately about my deferred adjudication program.

JAR JAR and CAD DANE leave.

EMPRESS OGG:  Mitcham and Leitner, you may enter.

MITCHAM and LEITNER enter the Throne Room.

EMPRESS OGG:  This had better be good news.

MITCHAM and LEITNER look at each other uncomfortably.

VICE ADMIRAL MITCHAM:  Did I hear correctly that you are starting a new deferred adjudication program?

EMPRESS OGG (smiling):  Why, yes.  It is very exciting and innovative.  I'm glad I invented it.

CORPORAL LEITNER:  What is it?

EMPRESS OGG:  A new program where a Defendant enters a plea of guilty, but the judge withholds a finding of guilt and places the Defendant on community supervision.

CORPORAL LEITNER:  But . . .

VICE ADMIRAL MITCHAM (to LEITNER):  Just let it go.

EMPRESS OGG:  So, I hope you bring me good news.  The year has been terrible.  First there was the Temple Disaster.

CORPORAL LEITNER:  The Jedi Temple?

EMPRESS OGG:  No.  David Temple.  I was really hoping that Admiral Schneider could pull that one off.  Darth DeGuerin is livid.  He won't return any of my phone calls.

CORPORAL LEITNER:  You did all you could, Empress.

EMPRESS OGG:  Yes.  I know.  And then we had that whole scandal with Amir promising cantina owners on Mos Eisley that he would legalize their gambling clubs. 

VICE ADMIRAL MITCHAM:  Speaking of Mos Eisley . . .

EMPRESS OGG: What about it?

VICE ADMIRAL MITCHAM:  There have been protests from the locals and the Stormtrooper Union president.

EMPRESS OGG:  Over what?  We investigated and Greedo shot first.

CORPORAL LEITNER:  Accounts vary.

VICE ADMIRAL MITCHAM:  There is still a lot of backlash over Denholm the Hutt asking about Greedo's legal status.

EMPRESS OGG:  And after careful consideration over 8 parsecs, I jettisoned Denholn into hyperspace.

VICE ADMIRAL MITCHAM:  Some feel that you should have dispatched him as quickly as you dispatched Andrew Wan-Kenobi.

EMPRESS OGG:  Don't be ridiculous.  Kenobi made me angry.  Denholm?  Not so much.  Andrew should have learned the lessons of former Vice Admiral Berg that you should only disagree with me if you wish to spend the rest of your days frozen in carbonite.

VICE ADMIRAL MITCHAM:  Speaking of all the people you've been terminating, Your Worship, we have still not received approval from the Galactic Senate for the budget for more Jawas.

EMPRESS OGG:  This is an outrage.

VICE ADMIRAL MITCHAM:  The situation is critical, Empress.  You may need to slow down on firing people . . .

CORPORAL LEITNER:  Speaking of which, Your Highness, I can't help but notice that everyone but me got a promotion.  I've been a corporal since you took over.  You know, under Emperor Patricia, I was a Vice Admiral.

EMPRESS OGG:  Meh.  We all kind of talked about it and decided you were good where you are.

CORPORAL LEITNER: Yes, Empress.

EMPRESS OGG:  What news do we have for the upcoming battle of 2020?

CORPORAL LEITNER:  The news is bad.  There are many who are lined up to take your place.

EMPRESS OGG:  I know of Audia and this Skystreeter person.

VICE ADMIRAL MITCHAM:  Overstreet.

EMPRESS OGG:  Whatever.  Who else?

VICE ADMIRAL MITCHAM:  Lloyd Oliver, Lori Deangelo, Mary Nan Huffman, and there are rumors that Carl from maintenance is eyeing a run.

CORPORAL LEITNER:  And I'm afraid that I have bad news about an additional candidate.

EMPRESS OGG:  Who?

CORPORAL LEITNER:  Carvana Skywalker.

EMPRESS OGG:  Why does that name sound familiar?

CORPORAL LEITNER:  She worked here until last Friday.

EMPRESS OGG:  Hmm.  I can't be bothered to know everyone who works here.

CORPORAL LEITNER:  You handpicked her as part of your staff when you took over.  Made her Bureau Chief recently.  Houston native.  Lifelong Democrat.  Highly respected amongst her peers.  A really really strong candidate.

EMPRESS OGG:  Not ringing a bell.

CORPORAL LEITNER:  You have a picture with her on your desk.

EMPRESS OGG:  No I don't.

CORPORAL LEITNER:  Yes, it's right there.

EMPRESS OGG:  Boba Clappart, please escort Corporal Leitner to the carbon freezing chamber.

BOBA CLAPPART, head of security drags CORPORAL LEITNER kicking and screaming out of the Throne Room.

VICE ADMIRAL MITCHAM:  Well, it isn't like he didn't know what happens when someone disagrees with you . . .

EMPRESS OGG:  I mean, seriously.  Right?! And he wonders why he never got promoted above Corporal.



SEE PREVIOUSLY

Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Thursday, November 14, 2019

A Tale of Two Firings

As I alluded to at the end of Friday's blog post about The Belated Firing of John Denholm, the former Intake Division Chief was not the only person who found himself on Kim Ogg's chopping block last week.  On Monday, Ogg fired Section Chief Prosecutor Andrew Smith from the Writs Division following a heated argument with Smith that occurred Thursday.

Unlike Denholm, Andrew Smith was a longtime prosecutor from within the Office who actually earned his position as Section Chief through years of hard work, intelligence, and honesty.  Unlike Denholm, he wasn't fired for anything improper or racist.  Unlike Denholm, Kim Ogg didn't spend eight days deliberating over whether or not she was going to fire Andrew.  She decided to fire him on Thursday evening.  The only reason he wasn't fired on Friday was that he had taken a sick day.  When he returned to work on Monday morning, he was promptly given the opportunity to resign or be fired. 

On principle, he chose the latter option.  As a result, the highly respected Section Chief Writs Prosecutor was ushered out of the Harris County District Attorney's Office under escort.

The grounds for his immediate termination?  He had contradicted Kim Ogg on the record in a Writ Hearing.  

The lengthy details are in this article written by the Houston Chronicle's Keri Blakinger, published this evening.  If you are not able to access the story, here is the most condensed version I can muster:

Shortly after taking Office, Ogg had a conversation with Andrew regarding former HCDA prosecutor Gretchen Flader.  Flader had been one of 38 prosecutors that Ogg had fired/not renewed their employment contracts when she took Office in January of 2017.  In this conversation, Ogg mentioned that she had felt compelled to not renew Flader's contract of employment due to Flader's romantic relationship with another prosecutor, Nick Socias (whom Flader subsequently married).  Ogg was terminating Socias' contact because of the notorious "Jenny Scandal" that was an issue during the 2016 D.A. Race. 

NOTE:  Again, for the record, I would like to point out that Nick got a really bad rap on that, but I'm not going to argue that point here.

There were at least three people Ogg terminated on "Bloody Friday" that lost their jobs because of whom they were married to or in a relationship with.  When Ogg told Andrew that Flader was terminated because of her relationship with Socias, that seemed to make sense.

After Flader's termination, she filed for unemployment.  Inexplicably, Ogg decided to fight Flader on the issue and the Office hired attorney Katherine Mize (who coincidentally was a large donor to Ogg's campaign) to litigate the issue.  Mize argued, on behalf of the Office, that Flader had been non-renewed for prosecutorial misconduct -- a direct contradiction of what Ogg had said to Andrew.  

NOTE:  The amount Flader sought in unemployment was roughly $1500.  I'm not sure how much Mize was paid to fight the case.

Fast forward to last year.  Andrew finds himself in the middle of a Writ hearing against prominent Writ Attorney Randy Schaffer in the State of Texas vs. Feanyichi Uvukansi, a case that Flader had prosecuted at trial.  During the hearing, Schaffer asserted on the record that Flader had been fired for prosecutorial misconduct.  Andrew, recalling his earlier conversation with Ogg, responded on the record by saying:
"Ms. Ogg told me the reason she let go of Ms. Flader is because she was sleeping with the man who was dealing with the Jenny case."
It seemed like a rather innocuous comment at the time it was uttered.  He simply recalled an earlier conversation with Ogg where she said something contrary to what Schaffer was claiming on the record.  In the big scheme of the Writ Hearing, the grounds for Flader's termination were tangential at best.

But if you're Kim Ogg and you've hired one of your campaign donors an outside lawyer to fight an unemployment claim for reasons contrary to what you've previously stated, Andrew's on-the-record statement becomes a little more troubling to you.

On Thursday, she called Andrew into her Office and told him that he must have "misremembered" and that he needed to fix the error.  Andrew told her that he recalled the conversation distinctly, noting it was the first time he had a one-on-one meeting with Ogg.  He noted that he still had the meeting on his calendar, so he could even specify the date, as well.    Nevertheless, she insisted he "correct the record" and he refused.

As noted above, Andrew was encouraged to resign on Monday.  When he refused, he was fired.

Take a moment to fully appreciate the courage of Andrew's actions.

He loved his job at the D.A.'s Office.  He loved it a lot.  He had extremely close friends there and he was good at what he did.  All he had to do to keep his job was to say that he made a mistake on the record.

Except, Andrew knew he didn't make a mistake so he refused.  It would have been so easy to have just said "maybe I was wrong" and get to keep his job.

But he knew he wasn't.

He wasn't going to be bullied into lying, no matter how much the angry elected District Attorney was screaming at him.  Not a lot of people would have had the intestinal fortitude to stand and deliver like Andrew did.

So, in front of his colleagues, he was marched out of the Office.

Yesterday Kim Ogg took it upon herself to file a "Correction of Record" in the State of Texas vs. Feanyichi Uvukansi, which said Andrew had made a "false statement."  The "correction of record" makes no mention of why exactly Andrew would have been motivated to make such a statement.

That's probably because Andrew didn't make a false statement.  And if that's the case, it would seem to me that Kim's sworn statement to correct the record might be construed by some as aggravated perjury.

In an amusing side note, Ogg claims in the "Correction of Record" that she only learned of Andrew's statement last week.   Ironically, Randy Schaffer attacked Ogg's credibility for entirely different reasons.  He pointed out that he had emailed Ogg about Andrew's statements in August.  Confronted with this easily provable point, Ogg noted that she would be filing a Motion to Correct the Correction of Record.

For the unofficial record, I don't know of anyone in the CJC that would put Ogg's credibility ahead of Andrew's.

On a personal note, I would like to specifically tell Andrew how much I admire the stand he made against our elected District Attorney.  He lost a lot in the process.

The world could use more people like Andrew Smith.

Monday, November 11, 2019

Carvana Makes It Official

In the midst of all the chaos and scandal going on over at the Harris County District Attorney's Office this week, um, month, um, year, um entire Administration, lately, it is nice to see some positive news coming out the Criminal Justice World.

Former Bureau Chief Carvana Cloud has announced her official candidacy for the Democratic nomination for the Office of the Harris County District Attorney in 2020.


Her official website is https://www.carvana2020.com/.

As I mentioned in a post last week, I think the world of Carvana as a person with honesty, integrity, intelligence, and kindness.  I was a fan of hers when she was a brand new prosecutor, and I have always remained a fan and a friend of hers.  

When Kim Ogg hired Carvana to be in her Administration, I thought it was the best move Ogg could have possibly make, and I was glad to see Carvana promoted to Bureau Chief earlier this year.  As you probably know already, Carvana announced her immediate resignation the week before last.

Over the weekend, her website went up, confirming her candidacy for District Attorney.

Carvana is a tremendous candidate and a force to reckoned with.  She has a large amount of support from within the Harris County District Attorney's Office, which will be interesting.  Given Kim Ogg's level of paranoia and low threshold for accusing people of disloyalty, that's going to be a really horrible challenging place to work until the primary on March 3, 2020.

Somewhere, somehow this all seems familiar.  I think I heard a story once about a District Attorney who was wildly unpopular with her prosecutors.  She treated them with suspicion and paranoia and ruled with an iron fist.   And then a charismatic and better-qualified candidate ran against that District Attorney and beat her in her own primary.   

Seems like there is a moral to this story somewhere.  Something about people who don't learn the lessons of history being doomed to repeat it?   

Friday, November 8, 2019

The Belated Firing of John Denholm

So, after eight days of looking desperately for excuses not to have to fire careful deliberation about John Denholm, Harris County District Attorney Kim Ogg fired the former Intake Division Chief.  As I'm sure you know, Denholm was thrust into the spotlight earlier this week after rejecting charges on an attempted sexual assault case because the victim on the case might possibly be "an illegal."

Ogg had apparently hoped that the story of Denholm's absolutely inexcusable behavior would blow over with a little time.  Unfortunately for Ogg and Denholm, however, statements from the Houston Police Officer's Union (HPOU), the League of United Latin American Citizens (LULAC), and Texas Congressman (and former Harris County Assistant District Attorney) Gene Wu have made it clear that the story was not going away.  The story broke on television a few nights ago and Keri Blakinger followed up with an article in the Houston Chronicle.  This morning, the Washington Post brought Denholm's stupidity to the level of national attention.

Why it took Ogg eight days to arrive at the seemingly obvious conclusion escapes me.

Ogg is far more well-known for her impetuous decision-making and general hotheaded responses when angered than she is for using cool rationale to respond to problems.  The fact that she waited eight days before firing Denholm is indicative that it was not a decision that she wanted to make.  That's not all that surprising, I suppose, given her history.  Let's not forget how long it took her to decide to recuse the Office from the David Temple case, despite extremely obvious conflicts of interests she had with the case.

But, alas, poor John Denholm's last day did come today.  It is my understanding that Denholm was given the option of resigning, but he refused.  Apparently, in his mind, he did nothing wrong.  He certainly wasn't willing to "take one for the team" and bow out gracefully.  So, Kim did what she had to do and finally sent a minion to take Fredo fishing.



Kim's belated firing of Denholm is not likely to placate anyone with any common sense, and the fact of the matter is that she wouldn't have found herself in this situation if she wasn't such a shameless politician.  Denholm was an unabashed political hire who was put in a position of leadership that he had neither the credentials nor the intellect to handle.

Before I go into Denholm's credentials (or lack thereof), I will, once again, point out that he and I have a personal grudge with each other that I will cover below.

I first met Denholm when he was a lieutenant with the Harris County Sheriff's Office Homicide Division.  He seemed alright to me back then, but I didn't know him particularly well.  His group of Homicide Investigators drank beer with the group of prosecutors that I hung out with back in the early 2000s.

Denholm went to law school and when Kelly Siegler was prepping for trial on David Temple, she asked Denholm to use his law school "expertise" to play defense attorney in a mock trial run-through.  John thought he did a wonderful job, but told Kelly that if he had been the lead homicide investigator on the case when it first happened, he'd have gotten a confession out of him.  Denholm was never short on confidence.

After Temple had been convicted and Denholm had gotten his law license, he started up with his talk about how David Temple was innocent.  One of the people he told about it was none other than Dick DeGuerin, Temple's trial lawyer.  It was a dramatic reversal of opinion coming from Denholm, and many of his former co-workers at HCSO looked at it as Denholm saying whatever he could to ingratiate himself with the famous defense attorney.  One HCSO Homicide Detective went so far as to tell me: "If Denholm dropped dead tomorrow, you couldn't find six guys around here who would carry his casket."

Although Lisa Falkenberg would later portray Denholm (and his cohort, Steve Clappart) as heroes who lost friends for making a stand for Justice in their defense of David Temple, that wasn't the reality.  The reality was that the two of them lost friends because none of those former friends believed that Denholm was doing anything other than trying to advance his defense attorney career with the help of Dick DeGuerin.  The fact that Denholm and Clappart were willing to file capital murder charges on a kid (that not even Temple's own defense team would accuse during the second trial) didn't go over very well with those former friends, either.

I can't help but wonder what Lisa thinks about Denholm in light of this week's events.

A few months after I had blogged about what Clappart and Denholm had tried to do with their secret warrant, I received notice from the State Bar of Texas that John Denholm had filed a grievance against me for trying to "subvert justice" by exposing their plan in my blog.  The State Bar dismissed Denholm's complaint as meritless, of course, but I won't lie -- it was infuriating to know that he had pulled such a pathetic ploy.

When Ogg took Office and hired Denholm as a Division Chief, I was shocked.  I knew that he was a campaign donor, but he had only been a lawyer for about eight years.  Eight pretty undistinguished years.   He had the credentials to maybe start as a junior Felony Two, at best.  The idea of making him a Division Chief was absurd.

Yet, thanks to political patronage, there he was.

Unsurprisingly, Denholm did about as well as one would expect in the Intake Division slot.  He considered himself to be an all-knowing combination of ex-cop and super prosecutor.  Multiple officers claimed he was condescending and rude when they called in for charges. He seemed to enjoy rejecting charges that didn't live up to his high standards.  Those charges that he did take were often baffling.  His reputation with the Defense Bar and his fellow prosecutors ultimately coined the term "Denholm Special" for describing charges that were inexplicable.

For those of us who know John Denholm, learning that he had refused charges on somebody because the victim "might be illegal" didn't really come as too much of a surprise.  Stupid is as stupid does, after all.  The only thing truly shocking about this was Kim Ogg's utter lack of appropriate reaction to Denholm's actions.

Upon learning of Denholm's actions, what Kim should have done was suspend him with pay pending an investigation. 

But, that's not what she did.  What she did was immediately announce that he had been promoted to a coveted spot in Special Crimes reassigned.  Make no mistake about this fact:  any attempts that Kim Ogg makes to pretend she was "investigating" Denholm for the past eight days are utter crap highly suspect.  They knew everything that had transpired immediately.  Another prosecutor had already filed the charges that Denholm had so flippantly rejected.  The decision to move him had already been made.

If it hadn't been for HPOU President Joe Gamaldi's press statement and demand that Denholm be fired, it is reasonable to believe that Kim thought the issue had been handled.  She had removed Denholm from Intake and she probably thought that would alleviate the problem.


The fact that she waited for eight days and a Washington Post article before firing him clearly illustrates that her decision was based more on politics than on outrage over what Denholm had done.  Kim has fired many other people for far less and she has done so far more quickly.  Hell, she's fired other people for less and more quickly today, according to some information I received this evening.

We'll talk more about that later.

Tuesday, November 5, 2019

The Implosion of Kim Ogg

Harris County District Attorney Kim Ogg is having a rough year.

It started back in February when she incurred the wrath of the Texas Criminal Justice Commission by having the audacity to ask for funding for more prosecutors at the Office.  As it turns out, Ogg's progressive supporters don't want money spent on more prosecutors, because they believe it only leads to more prosecuting.  They preferred that any extra money received by the D.A.'s Office be spent on rehabilitative programs instead.  Ogg defended her request by pointing out that overworked prosecutors were no gift to Justice either, and she repeated her request several more times throughout the year.

As it turns out, she was using some seriously fuzzy math when making her non-progressive plea for prosecutors.  In June, Houston Chronicle reporter Keri Blakinger called out Ogg for using misleading stats to inflate the number of cases each individual prosecutor supposedly carried.  So, not only did Ogg violate the progressive spirit in asking for more prosecutors, she kinda sorta lied to the Commissioners' Court in doing so.  Oops.

Even though things were rough with her Progressive base, Ogg could at least rely on some stability in her upper Administration, right?  Not quite.  In April, Blakinger wrote an article noting that 140 prosecutors had left the Office since Ogg took over the reins.  Ogg and her supporters dismissed this as "normal" and blamed the departures on Hurricane Harvey and prosecutors not willing to embrace her awesome progressiveness.  The following month, Ogg fired her own 1st Assistant, Tom Berg.

The firing of Berg was probably one of the most telling moments of the Ogg Administration.  As I noted in this post, Berg was (and now is again) a highly respected defense attorney and military veteran.  He was handpicked by Kim Ogg when she became District Attorney and he lent credibility to her tenure.  Although all of the details have never been clearly established, Ogg fired Berg because he disagreed with her.  In doing so, she clearly demonstrated that advice from a respected colleague did not stand a chance in the face of Ogg's ego.

By the end of the summer, Ogg had two of her former employees, Audia Jones and Lori DeAngelo, announcing that they would run against their former boss for D.A. in 2020.

With Ogg's support waning with her progressive base, Ogg seemed to shamelessly shift into a new "tough on crime" campaign.

On October 11th, Ogg posted a photograph on her Twitter account that showed her walking with Cassidy Stay, the surviving victim of a rampage that left Stay's entire family dead.

In this clearly staged photo, Ogg takes implied credit for the jury delivering the death penalty to Ronald Haskell for the murders. In addition to this sending a decidedly unprogressive message about Ogg's willingness to seek death on some cases, it was also insanely disingenuous.  Ogg had absolutely nothing to do with Haskell's trial.  Her post neglected to mention that prosecutors Samantha Knecht, Lauren Bard, and Kaylynn Williford actually tried the case.  

Personally, I find this egregious on so many levels.  First of all, rolling out the victim of a horrific crime for your own personal photo shoot is mortifying.  I mean, beyond words mortifying.  The fact that Ogg did it on a case she didn't have anything to do with is a level of shamelessness that I don't know that I've ever encountered before.  The true prosecutors didn't publish any photos with Cassidy.  They just did their jobs.  

Ogg wouldn't understand that.  She's not a prosecutor.  She's a politician.

Moving on . . .

In October, Ogg napalmed the last bridge between her and her progressive base with an abrupt about-face on her feelings towards the notorious "Bail Bond Settlement."  Asserting herself into a lawsuit settlement (to which she was not a party), Ogg invited "about 100 police chiefs" to come to court with her and oppose the settlement.  My, how far we have traveled since the days when we were cutting off HPD's access to criminal databases!  

I just have this visual image of how this news was received at Progressive Prosecution headquarters:  Kim is doing what?!?!  And she invited who?!?!

If Ogg was hoping that the month of November would be better for her, she was sadly mistaken.  Late last week, Bureau Chief Carvana Cloud announced her resignation from the District Attorney's Office, effective immediately.   The ramifications of this development cannot be overstated.

To begin with, Cloud is immensely popular with both prosecutors and the defense bar.  She is highly regarded as smart, honest, and kind.  She was initially hired as a prosecutor during the Rosenthal Administration and rose quickly through the ranks.  She supported 2008 Democratic candidate Clarence Bradford for D.A. and was retaliated against when Pat Lykos prevailed in the election.  She left the Office in July of 2009.

Cloud was recruited to return to the Office by Kim Ogg in 2016 as the head of the Family Criminal Law Division -- a move that I was very excited to learn about.  Earlier this year, she was promoted to Bureau Chief by Ogg.  Given her history with Ogg, her abrupt departure last week speaks volumes.  Although she has yet to confirm anything officially, it is all but certain that she plans to challenge Ogg in the Democratic primary in March.

Ogg should be afraid.  Very afraid.  Cloud is charismatic, experienced, and respected.  Unlike Ogg, she is not at all controversial.  She's a stellar candidate.

And, as if all of that weren't enough to make Kim Ogg want to just hibernate until 2020, we have this late-breaking news.  Today, the Houston Police Officer's Union issued a statement blasting the Harris County District Attorney's Office for refusing attempted sexual assault charges at intake.  It reads, in part:
Our officer contacted Assistant District Attorney John Denholm and relayed the details of the attempted sexual assault, a 3rd degree felony.  Denholm asked the officer whether the complainant was "illegal."  The officer advised that he did not ask and did not think it was relevant.  Denholm then advised the officer that the officer should know if the complainant is illegal or not and futher inquired whether the complainant had a driver's license.  The officer advised Denholm that the complainant had a "Mexican Consulate ID card."  Denholm then stated that he would not touch that case since the complainant is "illegal" and declined any charges.
Now, anyone who reads this blog knows of my opinion that John Denholm has been an unethical idiot and suck up.  He once filed a grievance with the State Bar because I did a negative blog post about the ludicrous warrant that he and (now Chief Investigator) Steve Clappart drafted in their defense of David Temple.  That being said, I knew that Denholm was stupid when he tried to draft a Capital Murder warrant against an innocent kid, but I never knew he would be so dumb as to do something like deny charges on someone because they were potentially in the country illegally.

Some might call Denholm's response somewhat . . . insanely racist?

Inexplicably, rather than firing Denholm, the Ogg Administration just chose to "reassign" him.  They moved him from the Intake Division to the Gangs Unit which I believe still falls under the umbrella of Special Crimes.  Maybe things have changed drastically since I left the Office in 2008, but when I was there, Intake was a punishment (or starter) position and Special Crimes was a reward position for talented and senior prosecutors.

So, the Ogg Administration more or less just rewarded a numbskull prosecutor who was rejecting charges at Intake based on the status of the victim?   In what world does that make any sense?

Kim Ogg's repeated implosions make the scandals that rocked the Lykos Administration seem tame by comparison. It will be interesting to see if Ogg makes any attempt to start making things right, or if she will just continue to double down on disaster.  If things continue the way they have been going, Ogg seems destined to suffer the same fate that Lykos did in her own primary back in 2012.

Monday, October 14, 2019

Voice-To-Texting With Clients

Thanks to the miracle of Siri and voice-to-text technology, a road trip to Brazos County can usually provide an opportunity to catch up on returning some phone calls and text messages.

Unless your voice-to-text technology is as bad as the one I use.

ME:  I have already talked to my investigator about your case.  He will be calling you shortly.  His name is Roy Underwood.

SIRI:  Texting [CLIENT]: "I have already talked to my investigator about your cats.  He will be calling you shorty.  His name is Roy Underwood." Ready to send?

ME:  No!  Change message.

SIRI:  Okay.

ME:  I have already talked to my investigator about your CASE.  He will be calling you SOON.  His name is Roy Underwood.

SIRI:  Texting [CLIENT]: "I have already talked to my investigator about your case.  He will be calling you too.  His name is boy underwear."  Ready to send?

ME:  No!  Change message.

SIRI:  Okay.

ME:  "I have already talked to my investigator about your CASE.  He will be calling you SOON.  His name is ROY UnderWOOD."

SIRI:  Texting [CLIENT]: "I have all ready talk to my investigator about your case. He will be calling you soon.  His name is Roy Underwood."  Ready to send?

ME:  Close enough.


Sunday, October 13, 2019

Caseload Overload

Monday's Houston Chronicle had an article from reporters Keri Blakinger and Zach Despart entitled "Harris County judges criticized over pace of court-appointed lawyer reform," detailing Rodney Ellis' and the rest of the Harris County Commissioners' Court's push to have a Managed Assigned Counsel (MAC) Program forced upon the Harris County Criminal District Courts.  (NOTE:  A copy of the article is on the Chronicle's paid content website at this link but I could not locate a copy of it on Chron.com.  If you don't have the paid website, you'll have to get a copy of Monday's paper or just trust me on this one.)
Harris County's felony judges have come under fire from Commissioner's Court members for not moving fast enough to abolish the longstanding practice of judges appointing lawyers to represent poor defendants.
The article details much of what I discussed in this post about the MAC back in July.  As I wrote then, the Harris County Felony District Court Judges by no means have rejected the idea of a MAC, but they have asked for more time to design how it would be implemented.  I also shared my multiple concerns about the initial proposal from the Texas Indigent Defense Counsel.  Several of the Felony Court Judges, as well as representatives of the Harris County Criminal Lawyers Association (HCCLA), have shared the same concerns.

Apparently, Rodney Ellis is not the patient type and has demanded that the Felony Courts blindly accept his ideas without having any say in how they will work in the years to come.  That's just foolish.  If the program is going to be effective and capable of dealing with the multitude of complex issues that go along with indigent defense in felony cases, then the District Court Judges would be crazy not to carefully evaluate all aspects of it.  Ellis just needs to calm down.

That being said, Ellis' strongest criticism of the current appointment system is that there are many attorneys who are carrying far too large of a docket, and that's fair if you are looking at things from a purely statistical standpoint.  However, it also begs the question: Why would an attorney intentionally overload his or her caseload?  Are these attorneys really just blindly accepting new cases for no reason other than they can?

The answer to that isn't quite so simple, and the reality is that many of these attorneys with overloaded dockets are taking on so many cases because they are trying to manage the archaic payment system put in place by none other than . . . the County Commissioners themselves.

In today's world, when people go to work, they normally get paid for that work.  They also get paid in a time period that is reasonably close to the time the work was done.  If one works a job where he or she is paid by the hour, a paycheck normally is paid at the end of every week or two.  If one works a salaried position, there are obviously scheduled payments for when that salary gets doled out.

In the legal world, attorneys usually charge a retainer that gets drawn on during the course of the representation.  A client may pony up a hefty retainer that gets placed in a trust, but the lawyer or law firm only takes the money out of the trust once that money is earned by working on the case. 

The bottom line is that the vast majority of people who work get paid for that work reasonably quickly.

But that's not the case with those of who do indigent defense in Harris County.

Before I start sounding too critical of the System, I will point out that I think that Harris County pays well for indigent defense.  Although it doesn't quite approach "free world" payment, it isn't too shabby and it does pay you for the work you've done (eventually).

However, the Harris County payment system dictates that an attorney doesn't get paid on a case that he or she is appointed on until that case has been finally disposed of, and that's a problem.

Let's say that tomorrow, I get appointed on a murder case that is extremely complicated.  As a matter of fact, let's just pretend that it is so complicated that I decide not to take any other cases while I deal with this insanely complex case.  Over the next month, I pour over lengthy offense reports, read cell phone data, watch scene videos, meet with my client repeatedly, talk to my investigator, conduct witness interviews, do scene visits, and attend a couple of court settings. 

Let's say that this one case is pretty much my one and only job for the entirety of the month.  By the end of that month, I have billed over $20,000 worth of legitimate, honest, hard work on this murder case.  It is now the end of the month, and I've got to pay my mortgage, credit card bills, child support, utilities, which should be no problem, right? 

Wrong.  That murder case is still easily a year away from going to trial.  With the backlog of cases and the lingering effects of Hurricane Harvey, in reality, it could be much closer to two or three years before going to trial.  In the meantime, that $20,000 worth of payment that I'm owed continues to sit in the Harris County coffers while I try to figure out how I'm going to make my mortgage and feed my kids.  I did my part, but we are going to have to delay payment on that for a significant amount of time.

So, what am I supposed to do?

Well, the answer to that is generally, sign on to take another case.

So, let's say I decide to sign up for a second case.  Fortunately for me, this one is far simpler.  It's just a crack rock case, a simple State Jail felony.  So, on day one, I get my case and I read the three-page offense report in court.  The case is straightforward and can be worked out, except for one thing -- the lab report on the alleged substance isn't in yet.  I can't plead my client out on a drug case if the State hasn't shown me a lab report proving to me that it is actually an illegal drug.

So, I reset it to wait for labs and I don't get paid on that case this month either.

So, I take another case.  And then another.  And then another. And then some more.  I'm loading up my caseload because I need to get to where I'm on a timeline where payments are coming in.  When I first became a defense attorney, I described how the system worked to my dad.  He likened it to a pipeline, noting that failing to keep the pipeline filled can lead to some pretty lean months.

The attorneys who are overloading their dockets are the ones trying to keep that pipeline flowing continuously, as anyone who dislikes being broke would.  They take the next case and then the next.  Most of those cases may need only a lab report.  Others may be as complicated as that hypothetical murder.  Either way, I will agree that an attorney carrying a tremendous caseload does provide for some pretty bad optics.

An exception to the "pay when the case is done" plan is for those attorneys that take "term" assignments.  They agree to be a Court's attorney of the day or the attorney of the week for a daily rate. For a term assignment, an attorney can be paid on the next pay period.  However, when an attorney is an attorney of the day or week, he or she can be assigned up to five new cases a day, and that doesn't help the caseload overload either.

If I need to get a payment and I need it by the end of the month, I could sign up to be the attorney of the week all month.  Let's say hypothetically, I get an assignment for four weeks straight, and I pick up the full five cases every day.  Suddenly, at the end of the month, I have 100 new cases.

Judges have the power on a case-by-case basis to approve interim vouchers.  If an attorney has worked his butt off on a case and it gets set for trial six months down the road, most judges will approve an attorney getting paid for the work done up to that point.  I can honestly say that I have never been turned down by a judge when asking for an interim payment during that time period.

However, it is definitely not the norm.

The solution to this problem is simple: let attorneys get paid for the work that they do as they do it. 

When the system of not-getting-paid-on-a-case-until-it-was-over was developed, payment vouchers and time logs were all handwritten.  Now, it is computerized.  Making sure that lawyers aren't double billing for hours already claimed and identifying time conflicts can be done with decent software.  It is my understanding that attorneys who do appointed CPS work have the ability to "bill as they go," so why can't those of us who practice indigent defense?

It would definitely have a strong and immediate impact on those attorneys who overload their dockets.  There would be a financial motivation to sit down and focus on a case rather than focusing on getting the next case.  The pipeline methodology of managing a law practice would no longer be relevant.  In theory, cases could be resolved more quickly and the quality of representation would improve as a whole.  There wouldn't be pressure to resolve a case for financial reasons.

In short, it would address many (but not all) of the concerns the Commissioners have listed when advocating for the MAC. 

Sunday, August 11, 2019

Temple Trial Takeaways

As you doubtlessly know by now, the punishment phase of The State of Texas vs. David Temple ended in a mistrial on Friday after jurors failed to reach an agreement on an appropriate punishment for the man they easily convicted of murder.

I've heard from multiple credible sources that the split between the jurors was 10-2, with ten of the jurors demanding Life in prison for the man they convicted of killing his 8-month-pregnant wife, Belinda, by placing a shotgun to the back of her head and pulling the trigger.  The remaining two jurors were holding out for something far less and neither side seemed willing to budge from their position despite almost two days of deliberations.

A jury that convicts but then deadlocks over punishment is not unheard of, but it is fairly uncommon.  Since Temple was convicted of a 1999 murder, the law of 1999 applies to the case.  Back then a person could receive probation for murder, so Temple could technically receive it, as well.  Due to this, there is apparently an argument to be made that Temple could be placed on bond while awaiting his punishment.

If 178th District Court Judge Kelli Johnson elects to give Temple a bond, she will doubtlessly consider the brutality of the case, how many jurors wanted Life for Temple, and the fact that when released from jail in 2016, Temple vowed "for the people that lied and cheated who put me there to be held accountable."  Texas Attorney General Prosecutors Lisa Tanner and Bill Turner will likely point out that these combined factors make Temple a high flight risk with a revenge agenda who has nothing to lose.

Although the hung jury on punishment prevented bringing the 20-year saga of David Temple to a complete close, the fact that he was convicted again will more than suffice for the time being.

It has been a long and winding road that gave David Temple a second chance at getting away with murder, one that most murderers don't get.

Temple was originally convicted and sentenced to Life in 2007 in a trial that pitted Harris County Assistant District Attorney Kelly Siegler against prominent defense attorney Dick DeGuerin.  Despite the fact that the Texas Court of Criminal Appeals affirmed the case, DeGuerin lobbied the District Attorney's Office under then-D.A. (and Siegler's political rival) Pat Lykos to perform an off-the-books investigation into an alternate suspect.

In July of 2012, Pat Lykos was a "lame duck" D.A., having lost her bid for re-election to Mike Anderson in the Republican Primary.  DeGuerin asked then-1st Assistant Jim Leitner to "review" the Temple case before the Lykos Circus left town at the end of December.  Inexplicably, Leitner complied, as I detailed in this post.

Leitner had been informed that newly-minted defense attorney and former Harris County Homicide Lieutenant John Denholm had been sucking up to working for DeGuerin on developing an "alternate suspect" to the murder of Belinda Temple.  Despite the fact that the Court of Criminal Appeals had recently affirmed Temple's conviction, Leitner was more than happy to do DeGuerin's bidding and assigned Denholm's buddy (and current HCDA investigator) Steve Clappart to work on the case.

By September 2012, the dream team of Clappart and Denholm had drafted a Capital Murder warrant for the arrest of a "suspect" named Cody Ray Ellis based on evidence so absurd that I won't even address it in this post.  You can check out the legal document that these two nimwits tried to get signed by clicking here.   (NOTE:  Don't forget to scroll down to the transcript where Leitner testified that he would have signed that warrant.)

Here's a fun fact, in case you didn't pick up on it already:  During the retrial, Stan Schneider didn't even advance Ellis as his "alternate suspect," instead focusing on another teenager from the neighborhood, Riley Joe Sanders.  The juries in both the 2007 and 2019 trials quickly rejected all alternate suspects in favor of Temple.



In the meantime, DeGuerin (now joined by Stanley Schneider) filed an "Out of Time Motion for New Trial or Alternative Application for Writ of Habeas Corpus Based on Actual Innocence, Newly Discovered Evidence, and the Willful Suppression of Exculpatory Evidence." (Stanley apparently gets paid by the word.)  It is worth noting that during all of this, the Lykos Administration never bothered communicating what was going on to the family of Belinda Lucas Temple, which is something I noted here.


Wanting to avoid the appearance of impropriety, Lykos appointed local defense attorney Brad Beers to be a "special prosecutor" on the Temple matter.  There was a small conflict of interest on that, however, seeing as how Beers had previously represented Clappart twice (once in a lawsuit and once on a disciplinary infraction within the Office).

All of this ultimately led to a hearing in 2015 that David Temple wasn't entitled to and that very few others have been the beneficiary of.  During that hearing, Stan Schnieder and then-licensed attorney Casie Gotro got to revisit the entirety of the Temple case.  That rendition of Team Temple rejected at least five judges to hear the extra-judicial hearing before settling on Judge Larry Gist.

As we all know, the multi-week hearing ultimately resulted in findings from Gist that Kelly Siegler had been untimely in turning over evidence to Dick DeGuerin during the 2007 trial, and recommended that Temple receive a new trial.  My opinion then and my opinion now is that Judge Gist wasn't paying attention to much of the evidence that he was hearing.  He certainly wasn't paying attention when he signed off on an order where Gotro and Schneider had slipped in an extra finding.

I know that I'm biased, because Kelly Siegler is one of my best friends, but I will go to my grave feeling that the District Attorney's response to Gist's finding, coupled with Houston Press journalist Craig Malisow's article Unreasonable Doubt: Did Kelly Siegler Really Railroad an Innocent Man Eight Years Ago held far more accurate accounts of the Temple hearing than Gist's findings.

Regardless of how I feel, or how Kelly Siegler's detractors feel, David Temple ultimately got his case reversed.  Due to Kelly's fame as one of the best prosecutors in the State of Texas, the Houston Chronicle writers were ecstatic.  Lisa Falkenberg wrote a really touching article on how Clappart and Denholm were heroic and brave for taking a stand in pursuing the "real killer," despite losing friends.

SPOILER ALERT:  Denholm and Clappart lost friends because everyone knew that they (and their warrant) were full of shit, Lisa.  They were full of shit then and they are full of shit now.  Just FYI.

Brother Denholm even had the audacity to file a grievance against me with the State Bar (with attached affidavits from Gotro and Schneider) for daring to blog about Temple (and try to ruin Temple's fight for freedom).  It got rejected summarily.  I'm still a practicing lawyer, and that's all I'll say about that topic.

And then came the Reign of Ogg.

Kim Ogg took Office on January 1, 2017, and in her inauguration speech, she thanked Dick DeGuerin profusely for all he had done for her and her career.  Within a week, she vowed to be the One Woman Review Team who decided whether or not the District Attorney's Office would retry David Temple.  She appointed Steve Clappart to be her CHIEF investigator, and hired John Denholm to a Division Chief position.  Despite these clear conflicts of interest with Team Temple, Ogg steadfastly refused to recuse herself from the case.

Again, the Houston Chronicle was giddy with the prospect of the Temple Case being dismissed, because, you know, Kelly Siegler cheated!




While in the midst of Ogg's One Woman Review of Temple, DeGuerin even threw her a fundraiser! It was co-hosted by Paul Looney, who had also been a member of Team Temple at one point.


Coincidentally, Team Temple attorney Stan Schneider said that he was "completely comfortable" in whatever Ogg decided.  Gee, I wonder why.  

Ultimately, Kim Ogg relented under public pressure and recused the Harris County District Attorney's Office from The State of Texas vs. David Temple.

And the result? Justice. He was convicted again of Murder last week.

The circus that surrounded his case merely resulted in him getting a two and a half year break from prison that he clearly did not deserve.  Somewhere in the midst of all of this, the prosecutorial team of Lisa Tanner and Bill Turner were able to turn the focus back to the evidence of the case and back to Belinda Lucas Temple and her unborn daughter, Erin.

The postponement of the punishment phase to March will hopefully serve as merely an extremely lengthy epilogue for David Temple.  The real story concluded with the guilty verdict and Temple going back into custody.

Justice prevailed last week.  

Monday, July 22, 2019

Tales from the Old Days

From time to time, I'm reminded of a funny story from my days at the District Attorney's Office and I think that they might make for a decent blog post.  I was reminded of one of those moments this morning by former-HCDA investigator Steve Januhowski on Facebook, so I thought I'd share.

Back when I was a new-ish prosecutor, a group of prosecutors routinely got together on Wednesdays after work for Steak Night at the Little Woodrow's on W. Alabama (sadly, it has since been demolished).  I coordinated Steak Night and I was pretty religious about attendance.  We usually had anywhere between ten to thirty people show up.

I never missed.  If I didn't leave early from work, I was out the door at 5:00 sharp on Wednesdays.

During my tenure as the Chief of County Court at Law #5, my secretary was the one and only Barbara Eaglin, who was a true institution of the Office.  She had been around for decades, if not centuries and was well known for her good-natured battles with the smart ass baby prosecutors that came through the misdemeanor.  In addition, if a thought entered Barbara's mind, it immediately came right out of her mouth, and it came out loudly.

One Wednesday, my godfather, Jim Cox, called the Office looking for me.  Jim was an older attorney, who was probably in his mid-to-late-60s when this happened.  He didn't practice criminal law and he didn't know Barbara, nor did she have any clue on earth who she was talking to when she answered the phone.  As he would tell me later that the phone call went something like this.

BARBARA:  District Attorney's Office.

JIM:  May I speak to Murray Newman?

BARBARA:  No, he's gone for the day.

JIM:  Oh, that's right.  It's Wednesday.  He must have left early for steak night.

BARBARA:  No.  He left early because it's raining outside and shit floats.

She then hung up the phone.

Thursday, July 18, 2019

Conversations at the Elevator Bank

While standing at the elevator bank at the CJC this morning, a highly agitated lady waded into the crowd of people waiting, yelling out questions to no one in particular.

LADY:  WHERE IS ANDREWS?!?!  CAN ANYONE TELL ME WHERE ANDREWS IS?!

CROWD:  (SILENCE)

LADY:  THEY SAID SHE'S ON SIX BUT I WAS JUST UP THERE AND SHE AIN'T THERE!  IT'S BULLSHIT!  SOMEBODY AROUND HERE'S GOT TO KNOW!

ME:  Do you mean Judge Kelley Andrews?

LADY (calming down some):  Yeah!  Her!

ME (trying to remember what floor Court 6 is on):  Well, she's Court Six, so . . .

LADY:  I JUST WENT TO SIX AND SHE ISN'T THERE!

ME:  Well, there's a difference between the sixth floor and Court Six, I'm trying to remember . . .

ANOTHER ATTORNEY:  I think Court Six is on the 11th floor.

LADY (to other attorney):  THANK YOU!  That's all you had to say.

LADY (giving me a dirty look):  I DON'T NEED SOME ARROGANT ASS LAWYER TALKING TO ME LIKE I'M STUPID.

ME:  [SPEECHLESS]

NOTE:  This post reminded me of my favorite post that I ever wrote about the CJC Elevator Experience, so I decided I should relink to it here.

Thursday, July 11, 2019

Discretion and the MAC System

Like many criminal defense attorneys who work in Harris County, my law practice is a division of both retained and appointed cases.  In the ten and a half years that I've been on the defense side of things, my retained cases have increased, but I still take appointments on cases when my caseload can manage some new material.

For those of you unfamiliar with how the appointment system works in Harris County, an attorney who is approved to take appointments has the ability to go on the Harris County website and list himself or herself as available for either an individual appointment and/or a "term" appointment for a day or a block of days on the calendar.  If a court needs an "Attorney of the Day" (a lawyer who will work in the court and represent up to five defendants needing lawyers on any given day) and the attorney has checked the "term" appointment box, that attorney will be eligible to be called up.  If a court needs an attorney for just a case or two, the attorney who put in for an individual appointment would be eligible.

When the coordinator of the court needs an attorney for either "term" or individual appointment, the computer will generate the names of ten different attorneys who have listed themselves as being available.  The coordinator or the judge will then select someone from that ten-person field.  Additionally, the Harris County Public Defender's Office could also pop up as one of the ten options.

It should come as no surprise that the amount an attorney is paid on an appointed case is generally significantly less than what we routinely charge for retained cases.  That's not a complaint -- Harris County pays better than most other counties that I'm familiar with and there was a noticeable increase in the pay scale that went into effect in March.  But the bottom line is that indigent defendants in Harris County get some pretty damn good legal representation for a significant bargain to the County on a daily basis.

Attorneys who take appointments in Harris County find themselves in trial quite often and the more an attorney goes to trial, the better he or she becomes as a litigator.  Some of the very best lawyers that I tried cases against during my time at the D.A.'s Office were appointed and I think that if you ask any prosecutor or judge, they would express the same sentiment today.

Judges and coordinators know what defense attorneys do a good job, and more importantly, they know which ones don't.  Although the Court must select a name from one of the ten names that are provided to them from the electronic "Wheel," the Judges still have the discretion to avoid an attorney that isn't up for the case they are being considered for.  In that regard, discretion is definitely a good thing.

Critics of the current appointment system, however, point out that this discretion is also something that can lead to cronyism and potential abuse, and that is certainly a valid point.  In my earlier days at the D.A.'s Office, there were some judges that I saw appointing mind-numbingly bad attorneys on a routine basis.  I also saw attorneys who were powerful in the Republican Party or big donors that got a lot of mind-boggling appointments.  That being said, I saw that taper off significantly as new judges were elected to the Bench over the past fifteen years or so.

The critics of Harris County's current appointment system, led by County Commissioner and former-State Senator Rodney Ellis, are pushing hard to replace it with a new program known as the Managed Assigned Counsel (MAC) Program. This program would take the power of appointment away from the Judges and Coordinators and give it to a newly created entity that made the appointments in a rotation.   The County Court judges have largely agreed to it, but there is some debate amongst the District Court judges.  The District Court judges have been regularly meeting with each other and members of the Defense Bar to iron out potential details.

The MAC is something that would require a grant from the Texas Indigent Defense Commission (TIDC) and the TIDC is an organization near dear to Rodney Ellis' heart.  His former policy advisor, Scott Ehlers, is Special Counsel to TIDC and would doubtlessly play a large role in bringing the MAC to Harris County.  It is my understanding that the District Court Judges have requested more time from TIDC to research the project, but apparently, Ellis was not on board with this delay.

Today, I was provided with a copy of TIDC's Recommendations for a Unified Harris County Managed Assigned Counsel Program, a 22 page write up of TIDC's ideas of how the new MAC should be implemented and run.  Although it is doubtlessly well-intentioned, I have numerous concerns about how it would work in Harris County.   In no particular order, here are some of the biggest ones.

1.  The MAC should oversee the appointment and payment of counsel in all misdemeanors and non-capital felonies, as well as appeals and post-conviction matters.  A MAC can also oversee appointments in specialty courts.

So, two big things jump out in this particular recommendation.  The first being that the MAC system will oversee not just the appointment of counsel, but also the payment of counsel.  As it currently stands, when an attorney submits a voucher for the work done on an appointed case, the Judge of the court must approve it, edit it, or reject it.  Generally, that's a pretty good system because, you know, the judge actually observed the attorney handling the case in his or her court.  The MAC system is going to turn over what payments are made to an entity that isn't in court handling the case.  In essence, this is pretty much the same premise as a person's insurance company deciding what medical procedures a person needs, rather than the doctor.

The second issue is that TIDC also wants the MAC to decide who can do specialty courts (i.e., Mental Health Court, Veteran's Court, Responsive Interventions for Change Court, etc.)  These particular courts rely on a stable of attorneys who practice solely in those courts on a daily basis.  These are courts that can be complicated as they are designed to rehabilitate rather than incarcerate defendants.  In these courts, it is absolutely critical that there are long term attorneys who are handling the caseloads and are familiar with how the courts work.  A MAC System that assigns a revolving door of appointments to random defense attorneys would be extremely counterproductive.

2.  Attorneys will generally be assigned to cases on a rotational basis, taking into consideration attorney experiences and expertise.  Investigators will be assigned to cases when requested by attorneys.  Experts will be approved by the MAC when requested by attorneys.

Attorneys being assigned on a rotational basis ensures that every attorney on the appointment list actually gets an appointment every now and again.   The rationale for this being that some attorneys get appointed on more than their "fair share" of cases, while some are never getting called.  This rule is designed to be fair to all of the attorneys.

Here's a spoiler alert:  the Indigent Defense System is not designed to make sure that attorneys are treated fairly; it's there to make sure that the CLIENTS are treated fairly.  Attorneys who get more appointments just might be getting more appointments because more judges have confidence in those attorneys' abilities.  If an attorney is on the list and never getting an appointment, one might want to know if the reason is that judges don't have faith in the attorney to do a good job.  Appointed attorneys are taking a client's life into their hands -- it isn't time to make sure that everyone gets a participation trophy.  Would you be comfortable going into heart surgery and being told "Well, Dr. Smith is the best heart surgeon in Houston, but we're giving you Dr. Jones because he hasn't gotten to do heart surgery lately."

As it currently stands, when a defense attorney wants an investigator or an expert on his or her case, he files a motion with the court for approval of funds to hire an expert.  Those are routinely granted and the defense attorney may then pick the investigator or expert of the attorney's choice.   I've been a lawyer now for 20 years and 11 of those have been as a defense attorney.  I tried a lot of investigators over several years before settling on the one I now use on ALL of my cases.  I've also identified and continue to use DNA experts, psychological experts, mitigation experts, and other experts that I know do a good job and I can trust.

Under this proposal, the MAC would have the power to deem whether or not I was worthy of an investigator or an expert.  If I was to be so blessed by this government entity to receive approval to have an investigator or expert, the MAC would then assign me one of their choosing.

This falls under the category of "are you f'ing kidding me?"  As a lawyer, my duty is to the client and to provide the best defense possible.  This includes me using my knowledge and discretion to choose the personnel needed for the case.  What if I have a personal conflict with the investigator?  Or I just know that investigator doesn't do a very good job?  Tough luck.  The relationship between an investigator and an attorney is absolutely critical.  My investigator (although obnoxious) does an amazing job for me on all of my cases and he's self-directed.  I couldn't get by without him and I don't want to work with anyone else.  That's not a slight to other investigators that I've worked for.  We just work well together.  (Don't get a big head, Roy.)

The idea of the MAC being the decider of "if" and "who" on investigators and experts is obscene.  Period.

3.  [The MAC will employ] Supervising attorney [to] assist assigned attorneys and ensure assigned attorneys are providing high-quality defense services.  Supervising attorneys should do such things as:  observe attorneys in court and trial and provide feedback on their performance; assist attorneys in preparing for trial, strategizing elements of cases and answering legal questions; serve as second-chair; respond to an investigate complaints about attorneys from judges, clients, and client family members; ensure attorneys are visiting clients at the jail; and conduct annual attorney performance reviews.  Supervising attorneys should also document attorney performance deficiencies, complaints, and disciplinary matters in the attorney's file, as well as begin any necessary proceedings to move an attorney to a lower level appointment list or remove an attorney from the appointments list due to not meeting the MAC's standards of attorney performance.

I don't even know where to begin with this part. So, the MAC will be staffed with "supervising attorneys" who will, in essence, serve as employers for all of the attorneys who take appointments.  They will give performance evals and keep a disciplinary file on us.  Um, a  disciplinary file?  Isn't that what the State Bar is for?

And the Supervising Attorney is going to investigate complaint's from the "client family members?"  Here's a newsflash, TIDC.  Lawyers don't owe a duty to a client's family members -- many of whom are verbally abusive, unreasonable, and not entitled to know a damn thing about a client's case without the client's permission.

More troubling is that the MAC's Supervising Attorney will be an appointed attorney's de facto second chair.  So, not only does an appointed attorney get a random investigator and expert shoved down his or her throat, he or she also gets a mandatory second chair that he or she may or may not even know.  Sounds great!  I look forward to seeing what supervisor I'm going to get.  I wonder who will be supervising Skip Cornelius or Tyrone Moncriffe or Danny Easterling.

I find this portion to be so amusing because the whole idea of the MAC is to make sure every lawyer on the appointment list gets an appointment, but the ones who will be appointed on every case will be the MAC lawyers.  Nice.

At the risk of sounding like the kid who is threatening to take his ball and go home, I've got no interest in continuing to do appointments under the MAC System.  I can't imagine any attorney with a significant amount of experience agreeing to work under those circumstances, either.  If the System runs off the experienced attorneys, guess who that leaves?

If the MAC System is implemented in a manner that even vaguely resembles these suggestions, the quality of Indigent Representation will fall and fall dramatically.

Tuesday, June 18, 2019

Joe Gamaldi's Press Release

The Houston Police Department held a press conference today announcing that they had re-arrested Andre Timothy Jackson for the 2016 murder of 11-year-old Josue Flores.  As noted in the Houston Chronicle:
The indictment comes three years after police first arrested Jackson and charged him with murder — charges that prosecutors later dismissed over concerns they would not win at trial.
Apparently, evidence which had been collected during the initial investigation three years earlier just now provided a DNA link between Jackson and Flores.  It is not clear what piece of evidence that DNA was collected from or who that DNA belonged to, but my educated guess is that a piece of evidence belonging to Jackson may have been found to have Flores' DNA on it. 

Enter Houston Police Officer's Union President Joe Gamaldi. 

Gamaldi has been relatively quiet since his infamous "dirtbags on notice" press conference in the wake of the now-infamous HPD raid that left two citizens dead.  He's been around, continuing his on-going battle with Harris County District Attorney Kim Ogg, but there hasn't really been anything noteworthy to report. 

Today's press conference over the arrest of Andre Timothy Jackson, however, provided Gamaldi the opportunity to do two of his favorite things: 1) tout the awesomeness of the Houston Police Department; and 2) bash District Attorney Kim Ogg.  Gamaldi released the following press release:



There's nothing wrong with Gamaldi giving HPD Homicide a shout out for their hard work and dedication to this emotionally grueling case.  However, Gamaldi wasn't content with just giving his officers an attaboy and going about his business.  He decided that he needed to fire a couple of shots at Kim Ogg in the middle of this otherwise feel-good arrest story.
However, what has not been reported today is the defense attorney for Andre Jackson filed a motion several months ago to have all of his property/evidence returned to Mr. Jackson.  This included the key piece of evidence that the DNA would later be extracted from and would be material to any future trial.  In an act of what can only be described as gross incompetence, the Harris County District Attorney's Office inexplicably did not oppose this motion.
In this, Gamaldi is correct.  If the District Attorney's Office dismissed the case against Jackson in 2016 but hoped that further investigation would allow prosecution at a later date, then they absolutely should have fought tooth and nail against any motion to restore property to Jackson.  Their failure to do so is, as Gamaldi put it, gross incompetence.

But Gamaldi didn't stop there.
. . . Andre Jackson would be free to pick up his property and all the evidence belonging to him, that the Houston Police Department had in its custody.  Which Mr. Jackson actually attempted to do.
Please pay close attention to wording such as "his property" and "all the evidence belonging to him."
If not for the Houston Police Department Homicide Division and Chief Acevedo, who stated that "the items would only be returned over our dead bodies" opposing the motion from the judge, key pieces of evidence would have been turned over to Andre Jackson and lost forever.
So, here is a quick law tutorial for Mr. Gamaldi:  Judges don't issue "motions,"  they issue Orders.  As in, legal orders to do things, like say, return someone's property to him because the case against him got dismissed.

Failure to follow a Court's order is breaking the law. 

A very strong argument can be made that any evidence obtained from Mr. Jackson's property, which was being held by HPD in violation of a judge's order, was illegally obtained.  If a judge were to find that the evidence was illegally obtained, then a judge might find himself or herself well within his or her rights to suppress that evidence.  That same judge would also then suppress the results of any testing done on those items.

Gamaldi's press release indicates that key evidence belonging to Jackson was at the center of today's arrest.  Reading between the lines, that seems to spell out to me that a piece of property belonging to Jackson had DNA belonging to Josue Flores on it. 

So, let's throw out a hypothetical scenario.

Jackson gets arrested in 2016 and the police take clothing belonging to him during the arrest.  The case gets dismissed and Jackson files a motion to get his clothing back.  The District Attorney's Office says; "Sure, have your clothing back.  We don't care!" and a Judge signs an order that says, "HPD, give Mr. Jackson his clothing back."   Mr. Jackson goes to get his clothing and HPD basically says, "We don't care what the Judge's order says, you aren't getting your clothes back."  HPD then sends those clothes to a lab, and finds Josue Flores' DNA on Jackson's clothes.

If I was Jackson's defense attorney, I'd be arguing that all of those DNA results should be suppressed at trial because they were illegally obtained from property that HPD had been lawfully ordered to surrender to Jackson.

Gamaldi's press release is so mind-numbingly stupid, because (in his attempt to slam the D.A.'s Office) he basically acknowledges that HPD was breaking the law.  In fact, he seems downright giddy about it.

This would be akin to Tom Brady giving a press conference after the 2015 AFC Championship game and saying, "The Patriots did a great job today thanks to me ordering our equipment guy to deflate the game balls."

Let me be clear here.  I agree completely with Gamaldi's assessment that it was absolutely gross negligence that the D.A.'s Office didn't oppose the return of Jackson's property.  They should have fought with all of the Office's might to prevent that from happening.  But they didn't.

As wrong as that was, it doesn't give HPD the license to ignore a Judicial Order, however.

Personally, I think the remedy would be to exclude the evidence.  I may end up being proven wrong on that.  Several of my former prosecutor/current defense attorney colleagues think that the remedy would be to simply hold HPD in contempt for failing to return the evidence.  They may be correct but isn't holding them in contempt an acknowledgment by the Court that the law was violated?

How it ultimately plays out in court will be interesting to observe.

What isn't in dispute is that Joe Gamaldi didn't do the Houston Police Department any favors with his press release today.

Tuesday, May 14, 2019

The Mad Queen

The CJC Community was shocked today by the announcement that Harris County District Attorney Kim Ogg had fired her First Assistant Tom Berg.  There were rumors that a few other employees in administrative positions had also been fired.

The move is surprising for a couple of reasons.

The first reason being that Tom Berg has a stellar reputation for being a man of integrity, dedication, and knowledge.  He is a combat veteran who has dedicated his life to the Criminal Justice Center and he is very highly respected amongst both the Defense Bar and the Prosecution.  Tom spent the vast majority of his legal career on the defense side of the aisle so I was somewhat surprised when he joined the D.A.'s Office.  I thought it was a great hire by Ogg and I said so at the time.

Tom had a learning curve at the D.A.'s Office -- largely due to the fact that his primary focus of criminal law had been on the Federal side of things, as opposed to State.  He made a few missteps at first and made a couple of statements that he would probably like to have taken back.  None of those missteps or misstatements, however, undercut that he was a fair-minded man who left private practice to help make the Criminal Justice System better.

His firing today by Ogg says a hell of a lot more about the Ogg Administration than it does about Tom Berg.

Ogg's Office has been under scrutiny lately because of the mass exodus of Harris County prosecutors who are leaving their jobs for . . .  any job but that one.  Morale is in the toilet and a job that was once the most coveted in the prosecutorial profession is now one that nobody wants anymore.  Tom Berg was not a contributing factor to that lack of morale.  He did his best to rally the troops that the Office still had left.

But Kim Ogg has always seemed to embrace the idea that it is better to be feared than loved.  There were multiple prosecutors and defense attorneys today who were comparing her method of ruling to Sunday night's episode of Game of Thrones (No spoilers here, but if you watched the show Sunday, you should understand what they are talking about).

While Ogg is running off good prosecutors in hordes and firing leaders like Tom Berg, she is busily making blatantly political hires like troubled former-HPD Chief Clarence Bradford.  More troubling is the rumor that Berg's firing has paved the way for wildly unpopular controversial Division Chief, JoAnne Musick to be promoted to the position of Trial Bureau Chief.

To my brethren and sistren in the Defense Bar, if you think your trial court prosecutors are currently hamstrung by micromanagement and stupid policies, get ready for Ogg giving JoAnne a blank check to run the whole bureau however she wants.

The firing of Tom Berg probably won't really change the day-to-day operations of prosecutors in a way that is noticeable to the general public, or even the rank and file prosecutors.  The message that is implied in his firing, however, is beyond troubling.  While Ogg has been able to waive off previous departures from the Office as people who weren't committed to her "progressive" ideas, she can't do the same with a man that she handpicked to be her second in command.  She can't do that with a man who has the integrity and reputation of Tom Berg.

Apparently, the First Assistant didn't learn the First Rule of dealing with Kim Ogg.

To disagree with the D.A. is to lose your job.