Sunday, February 10, 2019

Progressive Prosecutors Need Help Too

Harris County District Attorney Kim Ogg found herself in an unusual position last week when her request for funding 100 new prosecutors was met with harsh criticism from the Texas Criminal Justice Coalition, a progressive group that normally is one of her biggest supporters.  As noted in the Houston Chronicle, Ogg's request for additional prosecutors seems to have been interpreted as some sort of act of war by TCJC's Jay Jenkins.
"Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is the police and prosecutors," said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.
Apparently, Jenkins is so concerned that if Kim Ogg were to get a whole bunch of new prosecutors, the D.A.'s Office would just go out and start prosecuting things unnecessarily so that those new prosecutors won't get too bored.  That's a silly notion if you've paid attention to anything that Kim Ogg has done since taking office at the beginning of 2017, and it clearly illustrates that Jenkins hasn't spent much time in the trenches of Harris County criminal justice.

Ogg countered Jenkins' criticism with an editorial in this morning's ChronicleIn typical Ogg fashion, she demonstrated her flair for the dramatic:
It's the kind of fear that awakens prosecutors in the middle of the night.
What if I help convict the wrong person?  What if I fail to bring a serial murderer to justice and he kills again?  What is the best outcome for a family plagued by domestic violence?  How do we prevent a drunk driver from leaving jail, getting in his car again and killing an entire family?
Prosecutors wrestle with these worries every day. 
Um, calm down, Kim.  Most prosecutors at your office waking up in the middle of the night are mostly worried about what Joanne Musick is retroactively doing with their evaluations.

That being said, Kim is right on this issue.  The District Attorney's Office does need more prosecutors, and contrary to Jay Jenkins' opinion, that doesn't compromise the Ogg Administration's progressive views towards the Criminal Justice System.  Harris County Assistant District Attorneys are overworked and underpaid.  Seriously.  To the point where it is kind of absurd.

Even with Possession of Marijuana cases and trace cases not being filed, there is no shortage of crime in Harris County, Texas.  Overall filings may be way down, but prosecutors still find themselves handling hundreds of cases.  Sure, those cases vary in degrees of seriousness, but each and every one of them still have things that must be done on them.

If Jenkins spent a little more time in the trenches, perhaps he would become more familiar with the extremely common occurrence of a case being reset because an overworked prosecutor didn't get a "To Do" done.  Those resets are (on average) about a month, and in many instances, that's a month of sitting in jail.

That can be an extra month in jail because:

1.  A prosecutor didn't get a final restitution figure on a theft case.

2.  A prosecutor didn't get in touch with the victim of an assault who wanted to drop charges or was okay with probation.

3.  A prosecutor didn't get a copy of the search warrant or the offense report.

4.  A prosecutor didn't have time to look at a search issue.

5.  A prosecutor didn't have time to talk to an alibi witness offered by the defense.

6.  A prosecutor didn't have time to review a DWI video.

The reason these types of To Do's don't get done is NOT because prosecutors are lazy.  Most prosecutors (especially Twos and Threes) are working ten or twelve hour days and on weekends.  The reality is that they are overwhelmed with cases. 

If a prosecutor is in a court that goes to trial frequently, that makes matters even worse.  You know how whenever you go on vacation, all the things that you are supposed to be working on have a tendency to pile up on your desk?  Well, that same phenomenon occurs every time a prosecutor is in trial.

In many instances, a prosecutor won't take a hard look at a case unless it is actually set for trial.  If you're sitting in jail because you can't make bond, that's going to be a really long wait. 

I think that the 2011 William & Mary law review article (written by HCDA Alum Laura Killinger and her husband, Adam Gershowitz) cited in the Chronicle article frames the overall issue best.  They noted both pros and cons to the idea of adding more prosecutors.
. . . adding prosecutors could "result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors."
. . . a better-resourced district attorney's office can allow prosecutors to identify and dismiss weak cases more quickly. 
The interesting thing to note about Laura and Adam's article is that it was written in 2011, which was before the "progressive" movement that is currently sweeping major metropolitan areas in the country.  A more hard-core, conservative elected District Attorney might use more prosecutors to file more cases, but that's not Kim Ogg. 

And, quite frankly, I don't think that expansive prosecution of low-level cases is the future of prosecution.  At least, not in the big cities.

Ogg's appeal for more prosecutors is a well-intentioned and necessary request that will help the progressive agenda, not hurt it.  Jenkins should have a little more faith in Ogg.  They both have the same hopes for the future of Criminal Justice. 

If he spent a little more time in the trenches, he might realize that.

11 comments:

Anonymous said...

What will Ogg do when Darrell Jordan challenges her in the primary and Rachel Hooper, formerly Palmer runs against her in the general? Run to the left in the primary and to the right in the general?

Anonymous said...

Well Audia Jones has filed a designation of treasurer for Harris County District Attorney. Nice of her husband the judge of the 180th to be willing to resign if she wins. Since his wife would be the plaintiff in every case in his court he could not serve.

Anonymous said...

Harris county needs a new courthouse before it adds a hundred new ADA's. Sorry, but it should be common sense for any of us who work there.

Murray Newman said...

Anon 10:36 p.m.,

Here's a fun fact:

Neither one of those things is going to happen.

Anonymous said...

Maybe if Ms. Ogg and company did less to run off so many prosecutors when she took office, the resulting wave of "anyone with a heartbeat" newcomers would be able to be brought up to speed faster. The reality is, you learn on the job and replacing those with decades of experience is impossible-we all know it.

TriggerMortis said...

When a republican DA is elected they'll use the additional 100 assistants to aggressively prosecute anything they can find. Ogg should realize the consequences further down the road, even if they are unintentional.

Anonymous said...

10:36 They are 2 sides of the same coin. The criminal courts and ADAs are both drowning. Unfortunately, this is not new- money has always been scarce for the administration of justice. When was the last time either a new felony court was added or the DAs office budget significantly increased? Here’s a hint- Harris County was much smaller. Now, the DAs office budget is somewhere around that of Baytown PD and the courts are still struggling to get their own building. It’s an absurd bottleneck.
TriggerMortis: WTH are you talking about? Did you even read the post? Harris county ADAs are handling an insane number of cases- we are pretty much at the bottom of the top 20 counties in the nation. This is a bad thing for everyone- defendants, victims, defense attorneys, the public, everyone!

Anonymous said...

Anon 8:27

Harris County ADAs are handling an insane number of cases because they keep releasing all the criminals. The criminals are getting caught again. And the ADAs release them again. And they get caught again. Wash, rinse, repeat.

Try keeping the criminals in jail where they can't keep committing crimes over and over and your caseload will go down.

Anonymous said...

Anon 4:43,
That's a load of bull feces and anyone that looks up the numbers will find likewise. You sound like one of the bail bond company owners who are desperately trying to cling to the old system by any means possible, constitutional concerns be darned, to line your pockets. Those who are repeat offenders are a small percentage and not subject to the provisions of the PR bond settlement and only a few of the felony judges are dumb enough to let their robe go to their head.

I'm with Ben Franklin and Voltaire (also Blackstone) when it comes to the casual willingness by some to lock people up using the smoke=fire argument apparently big at UH Law awhile back...“that generous Maxim, that ’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent." If you remove the absurd (and unconstitutional) pressure placed on those misdemeanor suspects all but forced to accept a guilty plea for lack of a cash bond, the numbers of "guilty" drop rather quickly.

Anonymous said...

As a prosecutor in this office I feel like the whole needing 100 new prosecutors thing is a giant red herring. Would it be nice if we had a reduced caseload? Sure. Have we lost more prosecutors over the last two years than Ogg is asking for now? Absolutely. It is miserable working at this office. I don't know anybody who isn't looking to quit. The idea that 25 new people would be hired directly into the felony trial bureau, and then likely promoted over people who have shown any sort of loyalty to this office, is sickening and shows the disconnect between this administration and its employees.

I can't speak for everybody, but I work incredibly hard and rarely if ever feel like I can't handle it. The problem isn't working too hard, it's that there is no reward for hard work. Senior felony prosecutors sit in "break spots" waiting to get enough trials for promotion while people with less than a year of experience get promoted to felony and put in trial heavy courts. Lateral hires get promoted even when they have a terrible reputation and/or lose trials that should have been easy wins. Instead of helping move people around to get them trials the felony trial bureau chief changes evals to say they don't try hard enough even when she has never personally met these people and clearly doesn't understand how unreasonable that commentary is. If you can't treat your current employees like real human beings you don't have any right to ask for more people to treat poorly.

Anonymous said...

While I disagree and I do think we need more (competent) prosecutors... well, I can’t argue with this. “If you can't treat your current employees like real human beings you don't have any right to ask for more people to treat poorly.”

Damn. Spot on. But Ogg has repeatedly shown she has ZERO intention of handling the Musick issue. So nothing will change.