Friday, October 16, 2020

The Idealism of the Legal Twitterverse

 Oh, dear Lord.  I've hauled off and pissed off the Twitterverse.

Not in the normal way, like when I'm fully intending on pissing off people.  I did this one on accident.

Yesterday was a frustrating day in general.  We had a family emergency that required my wife to go out of town unexpectedly and I was trying to do Zoom hearings while keeping my 6-year-old and my 14-year-old on task with their online classes.  At one point, while Zooming into a court and setting a case for trial, the judge mentioned that I seemed relaxed and comfortable.  It was then that I looked down and realized I hadn't changed into a collared shirt for my Zoom hearings (as I normally do).

Instead, I was wearing a Drive-By Truckers concert t-shirt that read "Hell No, I Ain't Happy." I changed and went outside for my next Zoom setting because I didn't want to disturb the kids' classes.  While sitting on my front porch, a lizard ran up my leg.  It was just one of those days where there was a lot going on and nothing seemed to be going right.

In the middle of all the chaos, a former client that I had represented earlier in the year called my answering service and left a message that he needed me to find his probation officer's phone number because he'd lost his phone (and thus, the number).  A little bit later, he called again wanting to know why I hadn't called with the number yet.

Feeling frustrated, I took to Twitter with the following observations:

Now, this didn't exactly seem to be all that damning of a message, in my opinion.  

The Twitterverse disagreed.  I mean they REALLY disagreed.

I got bombarded by attorneys from around the country who were just incensed -- incensed, I tell you -- that I would make mention of the fact that I found a former client's inability to find a phone number without his lawyer to be a "more frustrating element of the job."  The crowd, which as near as I can tell is comprised largely of public defenders from around the country, have gleaned from this Twitter posting that 1) I hate all of my clients and 2) that I should quit my job posthaste.  The true "most frustrating" thing should be nothing less than an ongoing war against the oppressive, lying, cheating, 4th Amendment-eroding prosecutors, who are constantly seeking to imprison the masses.

I replied to a couple of these young and idealistic folks at first but eventually realized this was a futile effort.  So, I decided that I would respond with this post as a group response to those attorneys who are so helpfully trying to help me reevaluate my career path.

So, let me be clear with this message to my newest Twitter fans:

Grow. The. Hell. Up.

The job of a criminal defense attorney is frustrating on a daily basis at times, and if you haven't experienced that then you aren't doing it right.  

It doesn't matter if you're representing Charles Manson or a Santa Claus.  Clients are human and humans tend to frustrate each other from time to time without meaning to.  

I mean, hell, look at how much I seem to be frustrating Twitter.

I can honestly say that on the whole, the vast majority of the people I've represented over the years have been great to work with. I've represented some really nice people who were charged with some really horrible things.  I've also represented some really difficult people charged with really minor things.  Pretending that every last client I've ever represented has been nothing less than an utter delight is as silly as it is disingenuous.  

If you believe that every client you have ever represented has been nothing less than an angelic, non-frustrating victim of an unjust system, then you are either: 1) very lucky;  2) very naive; or 3) very new to this job.  If your unbridled optimism about your job is because of option 2 or 3 on that list, you are going to get run over by a prosecutor, a judge, or a jury who doesn't share your opinion.

To my new fanbase on Twitter, the trick to being a defense attorney isn't never being annoyed with your clients -- it's working your ass off for them no matter how annoyed you find yourself.  

Because believe me, in this job you're going to be annoyed.  

You're going to be annoyed by that client who has ignored and failed to return every one of your phone calls for a month but calls you at 4 a.m. to ask if he's got court that morning.

You're going to be annoyed by that client who has a completely winnable case right up until the moment he just doesn't show up for court and draws a completely unwinnable bond jumping case.

You're going to be annoyed by that client who files a grievance against you because you didn't get him a probation offer on his third aggravated robbery.

You are going to be annoyed by that client who tells you that you never once told him that he couldn't smoke meth while on bond.

You are going to be annoyed by the client who accuses you of "not working for me" or "working for the prosecutor" every time you tell them something they don't want to hear.

Every time some completely unnecessary obstacle to success comes up, you are going to be annoyed.

And guess what.

That's okay.

Because sometimes you can use those moments of annoyance to actually tell them that you're frustrated with them.  You can even build from that frustration and tell them that they need to learn to be responsible for some things that their lawyer wasn't meant to handle -- like say, being a telephone directory.  Tell them that you expect more out of them because the prosecutor, the probation officer, the judge, the jury, their family, their boss, their teachers, or the world is going to expect more of them.

It has been my experience that when I've done that, most have risen to the occasion.  Despite the angry protestations of the Twitterverse, lawyers cannot actually do clients' probation for them.

So, just for some background (not that I owe it to the Twitterverse), that client that I was annoyed with yesterday was a former client.  He's an older guy that I busted my ass to get out on a PR bond because he was at higher risk for COVID in the jail.  I also busted my ass getting him a deferred adjudication despite his priors, and a misdemeanor deferred at that.  We dealt with a lot of bond issues together before that happened and I told him that he was both grumpy and needy, and he laughed.  Despite being frustrated yesterday, I still called him back and told him to call the court to get the information he needed, because I didn't know it and I wouldn't be able to get to it that day.  He thanked me and we moved on.

Despite the Twitterverse's assumptions, I actually like him quite a bit.  He's got some piss and vinegar in him that is oddly endearing.

But yesterday, he was frustrating me.  Shit happens.

When I first meet a client, one of the first things that I tell him or her is that I will never sugarcoat anything.  I'll sometimes give them a choice of whether they want me to tell them what they want to hear or tell them what they really need to know.  I have yet to have the client who picked the former over the latter.  The same, apparently, cannot be said for Twitter.

In an odd moment of karmic coincidence, I got a message this morning on Facebook from a different former client.  He was a guy I represented a couple of years ago on a couple of different things and at the time, he did more than his fair share of frustrating me too.  We went round and round on some of his responsibilities and expectations.  But I worked my ass off on his case like I do on all my clients' cases, whether they are frustrating or not, and ultimately, it worked out pretty well for him.

His message this morning told me that he'd gotten his shit together, stayed out of trouble and that on Monday, he was getting to see his kid again for the first time in two years.

Sometimes, that frustration you feel and share actually leads to somebody living up to the expectations that they should be living up to.  There is nothing more uplifting than watching a client pull out of a tailspin.

Moments like that happen more often than you would think.

When they do, you are reminded that the most frustrating job in the world is, more often than not, the best one.

Tuesday, October 13, 2020

Lies and the Lying Liars Who Tell Them*

*All apologies to former Senator and Saturday Night Live alum Al Franken, who wrote a great book with this title.  It just fit so perfectly for the topic of this article that I couldn't resist copying it.  I love Al Franken so if this ever gets back to him, I hope he isn't mad.

So, remember back in June when I wrote this post?

The short-ish version of what it covered was this:

A year or so ago, Kim Ogg used taxpayer money to hire Mark Goldberg as an Assistant District Attorney, a politically connected former City Councilman who Ogg had gone to law school with.  He spent a very brief stint in Misdemeanor before being "promoted" to upper management at the office as a "community outreach committee member."  What this actually means is that Ogg hired somebody with taxpayer funds to prosecute, but then reassigned him to plan events designed to get her reelected.  Not that it will matter to voters, but some of us find that to be really illegal.

As part of his job as a fake prosecutor Community Outreach Committee Member, Goldberg quickly became the Sycophant in Chief and planned great events for his candidate District Attorney.  In late June, an e-mail went out from Ogg to all of her prosecutors telling them that they were looking for "volunteers" to help her royal Oggness out at a political event that was thinly disguised as a "voter registration event." The e-mail stated that Ogg would be speaking and all attendees would be the recipients of a "food giveaway."  The e-mail strongly suggested that those prosecutors who failed to "volunteer" would have it negatively reflected in their evaluations.  Not that it will matter to voters, but some of us find that to be really illegal, too.

A copy of that e-mail ended up in my hands and I tweeted it, noting my thoughts on it.  It got retweeted and eventually picked up some media attention.  Since a public servant demanding that the public servants she supervises perform political tasks for her benefit is illegal and the media was paying attention, Ogg was caught in a bit of an awkward situation.  What is an unscrupulous politician to do?

Well, of course, she had to feed the Sycophant in Chief to the wolves.  

Shortly after the media caught wind of Ogg's illegal orders, dutiful Mark Goldberg sent out an e-mail claiming that the Ogg e-mail had been a mistake-riddled "draft" of an e-mail he, himself,  had written and somehow inadvertently sent from Ogg's e-mail.  Still trying to figure out who they thought would actually buy that bullshit story version of events.  Seriously, I have represented some really dimwitted folks who have come up with FAR better stories than that one to explain themselves when caught redhanded. 

Anyhoo, the Office doubled down on just how mistake-filled the Oggberg e-mail had been when office flak Dane Schiller apparently told Houston Chronicle reporter Samantha Ketterer that Ogg wasn't even scheduled to speak at the event as originally stated.  

So as usual, Kim Ogg and her upper Administration pulled some really dirty stuff, denied they did it, and then waited for the attention to pass -- which it promptly did.

It did, that is, until local defense attorney and former prosecutor Nathan Hennigan decided to hit the District Attorney's Office with a request for Public Information for the e-mails surrounding the event.  Ogg spent the past four months fighting the release of those records to Nathan.  Ultimately, he received some really interesting documents and he was kind enough to share them with me and some other folks.  They are wildly entertaining to read in relation to the Ogg e-mail, the Goldberg retraction, and the apparent message from D.A. Spokesman Schiller.

Let's take a look!

1.  Starting with Goldberg's e-mail that the e-mail was just a draft that was unapproved by Ogg.

2.  Continuing on, with Goldberg's statement that it wasn't supposed to be sent under Ogg's name.

3.  And as to whether or not Ogg was going to speak or not?  The D.A.'s Office said this back then . . . 

But the records indicate . . . 

Why do you even lie about something like that?  It makes no sense.  I guess when lying becomes so second nature to you, you stop paying attention to whether or not you are even benefitting from it any longer.

The sad fact of the matter is that literally not one thing here will matter to voters who will almost certainly re-elect Kim Ogg on November 3rd.  It's not because she's good at her job.  It's just because Harris County is firmly a Democratic county for the time being and the lightning rod that is Donald Trump is not going to help matters much for Republican candidates.

Kim Ogg is terrible at her job, actually.  And she lacks the character to hold the Office.  Mark Goldberg's lying e-mails to the entire office don't speak too highly of his character, either.  And lying to the media about such seemingly inconsequential matters as to whether or not somebody is going to speak to a crowd for five minutes?   What's the point?

For an organization tasked with fighting for truth and justice, the Harris County District Attorney's Office sure doesn't seem to know much about truth.

Friday, October 9, 2020

The 2020 Election -- Early Voting Begins

 With everything going on in the world lately, I have to admit that early voting kind of snuck up on me this year.  I remember hearing something about Governor Greg Abbott adding a week of early voting a few months ago, but then I saw that some of the Right Wing "power brokers" had tried to sue him to stop that from happening.  Apparently, the plan didn't change, and citizens of Texas can begin voting Early Voting on Tuesday, October 13th.   It ends on Friday, October 30th and Election Day is Tuesday, November 3rd.

Regardless of whether you are a Right-leaning voter or a Left-leaning voter, you should anticipate turn out to be tremendous this year.  You should definitely be making plans to vote early and give yourself some padding if your original scheduled plan to vote falls through.  My guess would be that given the new numbers of registered voters (over 200,000 new voters since the 2016 election, I believe), that even traditionally "slow" days during Early Voting could potentially bring long lines and wait times at the polls.

So, now that I've lectured you on your Civic Duty, here are my thoughts on the Election itself.  

This is going to be the first election in Texas that doesn't allow for straight-ticket voting, and in a Presidential Election year, the ballot is long.  As in 2016 and 2018, I expect that Texas will remain a Red State (although not as Red as in years past) and Harris County will be a Deeper Blue than ever.  Although there are some great candidates on both sides of the political spectrum in Harris County, I don't think that the Republicans will have much of a chance of taking back benches or positions even with the long-overdue demise of straight-ticket ballots.

So, here are my thoughts on the candidates involved in our Harris County Criminal Justice World if you would like to actually take the time to consider your independent voting choices.

Harris County District Attorney -- Kim Ogg (D)(I) vs. Mary Nun Huffman (R)

You may have heard me mention the name "Kim Ogg" here on this blog once or twice, and obviously, this is THE race that everyone in our world looks at most closely.  As most of you know, I voted for Kim in 2016.  I agreed with her platforms and her views on how the Criminal Justice System should be evolving and how it should be run.  I still agree with many, if not most, of those views, but Ogg's methods of running her office and putting her platform into place have been nothing short of disastrous.  In all honesty, looking back on the first four years of Ogg's governing, I feel the same level of frustration that Obi-Wan Kenobi had towards Anakin Skywalker when he told him "It was said that you would destroy the Sith, not join them!"

Star Wars analogies aside, Ogg's promises of "progressive" and "evidence-based" prosecution have been nothing short of farcical as she has spent the entirety of her time fighting for headlines rather than fighting for justice.  After wiping out a significant percentage of experienced prosecutors as her first move in office, she's waged war with HPD, judges, her own administration, and her prosecutors all in the name of her own pride.  To be honest, it has been shocking.  

She has sought politically motivated indictments on cases like Arkema when she knew that the criminal laws would never support a conviction.  She's fired or punished respected and experienced prosecutors who have disagreed with her over unstable policies (including her own 1st Assistant).  She's hired political donors to positions they were unqualified to hold and then refused to fire them when they predictably failed at their jobs or broke the law.  She's putting the landmark Michael Morton Act (which required prosecutors to share discovery evidence with defense attorneys) at risk, as she has instituted a policy of withholding evidence if the Defendant just so happens to be a police officer. 

She's been an absolute disaster.

Her opponent, Mary Nan Huffman, is a former prosecutor from Montgomery County and is currently an attorney for the Houston Police Officers' Union.  Her platform is definitely far more conservative than Ogg's.  Those things that have so grossly marred Ogg's first term are things that Huffman has been very clear that she intends to correct.  She has the strong support of the police unions and all Republican groups who are politically active.  

As a defense attorney, I have to say that I'm not in favor of some of Huffman's ideas for how the Office should be run.  That being said, the job of the elected District Attorney isn't to make the Defense Bar happy.  To paraphrase Cormac McCarthy, prosecutors have their side of the street to work, and the Defense Bar has theirs.   Additionally, if Huffman were to cultivate a D.A.'s Office filled with experienced prosecutors who actually knew what they were doing and weren't afraid to do the right thing (as opposed to being terrified of the ego-maniacal fame hound at the top), I think a Huffman office would work out just fine.

And at the end of the day, Huffman isn't a crook.  I'm not sure that I can say the same about Ogg.

My vote:  Mary Nan Huffman

Moving onto the Judicial elections, it is unsurprising to see that there are not many contested races on the ballot after the lopsided Democratic victories of 2016 and 2018.  Very few aspiring Republicans judges wanted to waste the money on a campaign that will very like prove to be futile.

339th District Court -- Jesse McClure (R) vs. Te'iva Bell (D)

Without fail, every election that I've written about since 2008 has had at least one race that gives me ulcers to write about for personal reasons.  This year, the race for the 339th has been that race.  

Judge Jesse McClure was appointed by Governor Greg Abbott to replace Judge Maria T. Jackson when she stepped down to run for higher office.  I've known Judge McClure since his time as a prosecutor, and quite frankly, I think he's great.  He's done a tremendous job during his short time on the bench.  His court is friendly and pleasant to appear in.  He gives thoughtful consideration to all of the legal issues before him.  He's demonstrated time and again that his default position is one of compassion and kindness.  His rulings are fair and well-reasoned.  Being a judge is clearly his calling, and he has excelled at it.

Te'iva Bell is a former prosecutor who has been with the Public Defenders' Office since its inception.  She is my friend and a very dear person.  I've known Te'iva since she was a shy baby prosecutor, and I've watched her over the years as she has grown into the position of a confident, knowledgable leader in the Defense Bar.  I have all the confidence in the world that if she is elected that will be an excellent judge, as well.

What I write here will have no bearing on the election in the long run, so I will just say that I think Harris County will be well served by whichever candidate ultimately succeeds.  It is a shame that they cannot both serve.  Hopefully, someday they can.

351st District Court -- Natalia "Nata" Cornelio (D) vs. Arlene Hecht (R)

Earlier this year, after I had made my recommendations in the primary races, I received a phone call from Natalia "Nata" Cornelio.  I had stated my intention of voting for Judge George Powell in the Democratic Primary for the 351st, and she wanted to talk about it.  She wasn't upset with anything I had written about her (or Judge Powell), but she wanted to make sure that I understood her views on the Criminal Justice System and why she was running for the Bench.  It ended up being a pretty long phone call and one that I enjoyed very much.  We've had a subsequent conversation now that she is the official Democratic candidate, and I enjoyed that talk, too.

As I noted in my primary write-up, although Nata is not as familiar of a face around the Harris County CJC, she definitely has strong credentials in criminal defense -- her practice has just centered more around the Federal System.  Those who know her personally are big fans of hers, and after my conversations with her, so am I.  She is very passionate about the Criminal Justice System in Harris County, and is very eager to tackle the issues we are all facing under the pandemic.  We talked for a long time about effective and creative ideas about getting the wheels of Justice moving again.  Not only was I very impressed by her enthusiasm for the tasks ahead, but I was also appreciative of her open-mindedness in seeking input from multiple sources.

In my last conversation with Nata, she mentioned that she had an opponent in November, which was surprising news to me.  I thought the 351st Bench was uncontested after the primary.  Sure enough, I learned that Arlene Hecht was running for office.  Although the last name sounded familiar in the political world, I had never heard of Arlene Hecht.  So, I did some internet sleuthing and didn't really find out all that much more about her.

Her own website says she graduated from law school in 1991, but then states she's been practicing law for 11 years.  I'm not a mathematician, but it seems that there may be some gap years in there somewhere.  She also lists herself as a defense attorney and prosecutor.  I've been practicing in Harris County in some capacity since 1999, and I have never seen her nor heard of her prior to this time.   Being the social butterfly that I am (although I'm not as much as I used to be), I tend to at least know of most people who come through the courthouse, so I find my unfamiliarity with Ms. Hecht to be somewhat unusual.

She is apparently currently an employee of Kim Ogg's District Attorney's Office, but given Ogg's penchant for handing out positions to friends and supporters, that isn't saying much.  She is apparently a fairly recent addition to the Office and is assigned to the intake division, where she doesn't handle cases beyond their initial filings.  There seems to be a very vast difference when you look at the qualifications between the two candidates that should make this decision a no-brainer.

My vote:  Natalia "Nata" Cornelio

County Court at Law # 12 (Unexpired Term) -- Genesis Draper (D) vs. Linda Garcia (R)

When Judge Genesis Draper was appointed by the Commissioners' Court to fill the vacancy of Court # 12, I had never met her.  I knew her husband, Brandon Leonard, who is a friend and all-around fantastic human being, but I'd never met his wife.  When she took the Bench, I learned more about her credentials and experience in the Criminal Justice System, and I remain confused as to how I never met her before.

Earlier this year, I had a case that went to trial in her court and I had the opportunity to see Judge Draper in action.  To say that I became a fan of hers would be an understatement.

Judge Draper navigated a case where the State's prosecutor and I had a very big difference of opinion on the rules of evidence, discovery, and the law.  She held the State to their duties and obligations and she held me to the same standards.  But what struck me as we tried this case was that there was absolutely no uncertainty in how Judge Draper handled her courtroom or her rulings.  She knew the law and she knew it off the top of her head.  That's not always the case in all courtrooms.  She ruled against me at times and she ruled for me on others.  Whether her rulings benefited my case or not, they were all sound.  

Without rehashing the details of the case, which was dismissed shortly after a jury was seated, she made very clear to the State that she expected more from them than what they were putting forth in cases set for trial.  She emphasized to them the need to better evaluate their cases prior to setting them for trial.  She also expertly addressed the issue of a Batson challenge being made against the State.  Without embarrassing anyone involved, she emphasized the importance of a very key component of our Criminal Justice System that is often overlooked.  I can't do her words justice as I try to remember them off the top of my head, but I recall thinking that they belonged in a legal opinion or a textbook on criminal procedure.  

My experience trying a case in front of Judge Draper left me of the opinion that I hope to see her going on to higher and higher benches in the years to come.

Judge Draper's opponent in this is Linda Garcia, who is also someone that I highly respect and consider a friend.  She had a previous tenure on the bench in County Court at Law # 16, which she lost in the Democratic sweep of 2016.  She is a very experienced lawyer who enjoys an outstanding reputation among her peers.  She was respected in her roles as Assistant District Attorney and on the Board of Pardons and Parole, as well.  I honestly don't know of anyone who has anything negative to say about Linda.  I certainly don't.  She's a great person and a great lawyer.

But, in my opinion, Judge Draper is a rock star at her job and is probably destined for an even bigger stage.

My vote:  Genesis Draper

County Court at Law # 16 -- Darrell Jordan (D)(I) vs. Bill Harmon (R)

Those of you who have followed this blog for a decent amount of time are probably aware by now that Judge Darrell Jordan and I are not exactly the best of friends.  I've written about those reasons in the past and he has let me know that he did not appreciate that.  I understand that.  I'm not going to go back over those reasons.  

I did want to bring up those personal issues because I want to give Judge Jordan credit for never once having let them affect how he has treated me or my clients who have appeared before him in his court.   I sincerely appreciate that, because I'm sure that is not always an easy thing to do. 

I would also be remiss if I didn't point out some of the things that I've seen Judge Jordan do that I think are both progressive and helpful from the Bench.  If I'm not mistaken, he was the first judge from the county courts to support the bail reform lawsuit that ultimately led to much-needed changes in stopping people from pleading out on cases simply to get released from custody.  It was a controversial decision but a good one.  He was also one of the first judges to come up with the radical idea of not making Defendants show up for unnecessary court appearances unless there was a substantive matter that needed to be addressed on a case.

These decisions haven't always gone without controversy, but Judge Jordan has not shied away from them.  In his court, the State does not have a "home-field advantage," and as a Judge who took the Bench prior to the 2016 Democratic Sweep, he was often alone in making some of those tough decisions.

There probably could not be a starker contrast to Judge Jordan than former County Court at Law and District Court Judge Bill Harmon.  In his days on the bench, Judge Harmon never failed to be a wildly entertaining storyteller and generally fun person to hang around.  However, he was one of the most pro-State judges to take the bench.  He relished his awards from Mothers Against Drunk Driving and put them on display even when asked to take them down by defense attorneys during a trial.

The Criminal Justice System has evolved in the 21 years since I've been apart of it.  The days of the State being treated preferentially treated over the Defense have given way to a stronger emphasis on the presumption of innocence.  Judge Harmon is a throwback to how things used to be while Judge Jordan is an example of how things have evolved as they should.

My vote:  Darrell Jordan

Harris County Sheriff -- Ed Gonzalez (D)(I) vs. Joe Danna (R)

Although the actions of the Harris County Sheriff don't really directly affect the Criminal Justice Center, I would be remiss if I didn't take a moment to point out the pretty damn phenomenal job that Sheriff Ed Gonzalez has done during his first term as Sheriff.  

The past four years have been filled with more turbulence than I can think of since I've lived in Houston,  Sheriff Gonzalez started out his term having to deal with Hurricane Harvey and he's been dealing with the COVID crisis all year.  In addition to his normal day to day operations, he's been handed one major problem to deal with after another.  He's done so while avoiding any major scandals or drop in morale in his department.  That's no small accomplishment in an office his size and Sheriff Gonzalez deserves to be commended for it.

I don't know Joe Danna and have nothing negative to say about him, but Sheriff Gonzalez has been a rock star in his own right.  He has navigated the Harris County Sheriff's Office through some very choppy waters with purpose and grace.  I wish him another four years and many more at a job that he is so clearly good at.

My vote:  Ed Gonzalez

So, those are my recommendations for the races directly related to the Harris County Criminal Justice System.  As always, there are some other races that have ties to what we do at 1201 Franklin.  

HCDA-alumni and attorney Akilah Bacy (D) would be a great choice for Texas House District 138.

HCDA-alumni and defense attorney Ann Johnson (D) would be a great choice for State Rep for District 134.

HCDA-alumni David Newell (R) has been doing a great job on the Court of Criminal Appeals and deserves your vote.

My friend Veronica Rivas-Molloy (D) isn't from the Criminal Justice World, but she's been working hard to get input on the issues that affect us all.  I've known Veronica for 20 years and she would make an outstanding Justice for 1st Court of Appeals.

And finally, our old friend and former-Harris County District Clerk Chris Daniel (R) (man, I miss him as D.C.) is running for tax assessor.  He's a good man who does a good job with his responsibilities.  I'm glad to see him on the ballot again.

Whether you like all, some, or none of my recommendations, I hope that you will take the time to vote.  As always, I have a lot to say about candidates, but anyone who puts themselves out there to run for office has my respect for the time and effort put into the endeavor.  

The least the rest of us can do is turn out to vote.   

Thursday, October 1, 2020

Mike Hinton

 The world is a little darker tonight due to the passing of legendary defense attorney, former prosecutor, and friend Mike Hinton.

I've looked through all of my photos hoping to find one of me and the first man who gave me a job in the legal profession, and sadly I couldn't find one.  For those of you who knew Mike, it is understandable that I don't have a picture with him because he never sat still long enough for me to take one.

The phrase "to know him was to love him" is often said on the occasion of a person's passing, but I can't think of anyone more worthy of the phrase than Mike Hinton.  Everyone who met him simply loved him.  He didn't really give you much of an option to do otherwise.  He was a short, roly-poly man with an exuberance for simply existing.  He was perpetually happy and happy to see you.  Hugs, cheek kisses, over-the-top greetings followed by sincere conversations punctuated with his staccato exclamations and his deep laughs were Hinton trademarks.

If Mike had been a Star Wars character, he would have been Baby Yoda because literally everyone loved Mike.

But his over-the-top, buoyant personality cleverly hid an extremely formidable trial lawyer who was a very major character in the Harris County Criminal Justice world.  He was Mike "Machine Gun" Hinton to those who knew him in the 70s and 80s when he was the Special Crimes prosecutor under District Attorneys Carol Vance and Johnny Holmes.  The cases he tried were legendary.  The stories of him were legendary as well.

His most famous case from those days was the prosecution of Ronald Clark O'Bryan, the infamous murderer who ruined Halloween by putting cyanide in his own son's Pixy Sticks to collect insurance money.  Years ago, when Todd Dupont and I hosted HCCLA's Reasonable Doubt, Mike agreed to come on the show to talk about the case for our Halloween episode.  As always, he was fascinating and his memory of the case kept us all entranced as he took us back through the horrible case.

When he left the Office, he formed a partnership with the late Johnny Pizzitola and the late Bob Sussman.  That firm would evolve over the years but the reputation it held in all of its forms was always golden.   Through State and Federal Courts across Texas, the names of Mike Hinton and the attorneys he partnered with meant something.  What it usually meant to prosecutors was that they were about to get their butts kicked.

In the summer of 1997, I was between my first and second years of law school when I was introduced to Mike Hinton by a family friend.  Mike immediately gave me a clerkship for that summer, which was a good thing seeing as how I was clueless that a clerkship was something that most law students were supposed to do between their first and second years of schooling.  Mike told me that he'd pay me $15 an hour, which was far and away the most money my happy ass had ever made in my lifetime.  I remember calling my dad to tell him how much I was making and he noted, "Damn, son, I was paying you $8 an hour here at the printing company, and I didn't even think you were worth that!"

I don't think I really had an inkling of what a career in criminal law would be like before that summer.  I was young and just trying to manage law school, which was proving to be enough a challenge as it was. Suddenly, I had this high dollar job courtesy of a man who was legendary in the field.  The firm then was Hinton, Sussman, [Joe] Bailey & [Charley] Davidson, and I spent the majority of the time working with Bob and Joe on a death penalty capital (where I would first be introduced to Kelly Siegler and Vic Wisner).

Although I spent most of the time working for Bob and Joe, the atmosphere at HSB&D was wildly entertaining.  At the center of it was the whirlwind of Mike Hinton.  He buzzed in and out of the office talking ninety miles per hour and it drew everyone out of their offices just to be entertained with whatever stories he had experienced that day.   I could write a book about the short months that I spent there and the funny things that happened -- my favorite remains when Mike bailed out of his new car on Memorial Drive because he didn't know that such new-fangled things as seat heaters existed and he was sure his car was on fire.

But on a more serious note, the lessons I learned from Mike (and every other member of the firm) those short months were ones that I carried with me every day since that summer.  The first and foremost thing that they taught me was that everyone in the Harris County Criminal Justice Center world that we come in and out of every day is family.  From the Judge to the Prosecutor to the Coordinator to the Clerk to the CLO to the peon law clerk just there for the summer  -- all were treated like dear friends.  They stopped and talked to everyone.  Mike knew everyone's name and pretty much all of their families' names.  He walked through there like a man on a mission to converse with as many people as possible as he could.

He was humble and self-effacing.  Nobody thought Mike's zany stories (that often ended at something embarrassing to him) were funnier than Mike, himself.  He was one of those guys who quite frequently couldn't get through a story without laughing because he already knew how it would end.  I've never seen anyone pull off hyperactivity so endearingly.  

Mike had a fierce pride for the time he spent as an Assistant District Attorney for Harris County.  As far as he was concerned, the Office was hallowed ground that produced the finest trial lawyers in the State, Country, and World.  That was a sentiment shared by Bob, Joe, and Charley, as well, and it was instilled in those of us who wanted to someday be prosecutors.  While some former prosecutors who became defense lawyers were quick to condemn the Office once they left or talk of their time there as a necessary evil on the way to becoming true-believing members of the Defense Bar,  that was never the sentiment at Hinton, Sussman, Bailey and Davidson.  Although their time there had passed, they all spoke of it with pride and fondness.

That's something that I carried with me during my time at the Office and the time since I left, and I learned it from Mike Hinton.  He introduced me to the Harris County Criminal Justice System and the people I've come to know and love in the 23 years (and counting) since that summer.

But by far, the most endearing trait of Mike Hinton's was the pride he took in all of those who passed through that office.  From the clerk who became a lawyer to the lawyer who became a judge, he viewed us all as part of his legacy and he never failed to show how happy that made him.  From the regular HSB&D Clerk Reunions at Vincent's and Nino's to him just seeing us in court and grinning from ear to ear as he came to talk to us about a case he had with us.  I remember being a baby prosecutor and him seeing me in court and running up, hugging me, and saying: "Murray, I'm just so g*ddamn proud of you."

There were so many clerks that came through that office under his tutelage.  The vast majority of them had far longer stays at the office than me, but we all share that common bond of having found our starts at Hinton, Sussman, Bailey and Davidson.  The pride that Mike had in us was nothing compared to the pride we had in having started out under his wing.  

Although my time there was short, I will always carry with me the lessons learned from this sweet, dear, crazy crazy man. To be a descendant of Michael John Hinton's courthouse legacy is something that I always have and always will be very proud of.

P.S.  If you have a favorite story (that is printable) about Uncle Mike, please share it in the comments.  There are so many outstanding tales that need to live on.

Tuesday, September 15, 2020

Raps, Rides, and Kim Ogg's Campaign by Indictment Policy

Under the title of Scott Henson's noted criminal justice blog, Grits for Breakfast, is a subheading that reads "Welcome to Texas Justice:  You Might Beat the Rap, But You Won't Beat the Ride."  For those of you who are either 1) outside the criminal justice world; or 2) too young to recognize the old phrase, you are probably missing out on how witty Grit's use of the phrase is.

The original use of the phrase can be attributed to a police officer dealing with a suspect who is confident (rightfully or wrongfully) that the charges he is facing won't hold up in court.  The officer's response is that although said suspect may ultimately win in court ("beat the rap"), he's still arresting him and he's getting a "ride" to jail.  Scott's blog serves as a respected watchdog for the Texas Criminal Justice System and his well-researched posts delve into the inequities in the System as they apply to prisons, prosecution, and police (amongst other topics).  Scott's blurb points out that even if nothing is ultimately done about the issues he highlights, at least they will experience the "ride" of being brought to public attention.

As someone who has occasionally clashed with Grits on some issues and found himself on the ride side of the blog, I can attest that the "ride" is not much fun.  

I digress.

Although the phrase "you may beat the rap, but you won't beat the ride" might be considered innocuous enough, it actually highlights an ethical issue that prosecutors must deal with quite frequently in their careers -- what do you do with the case where you don't think you can prove it to a jury beyond a reasonable doubt?

From an ethical standpoint, the answer is clear.  If a prosecutor knows that he or she can't prove a case, then he or she has a duty to dismiss it.  The burden of proof for a criminal charge is proof beyond a reasonable doubt and that standard applies from Capital Murder all the way down to a speeding ticket.  If the burden can be met, so be it.  But anything South of Reasonable Doubt is Not Guilty in the eyes of the law.  

As I learned from the late great Professor Irene Rosenberg during my Criminal Procedure class at the University of Houston in the last Millenium, the Criminal Justice System is a series of moments involving the exercising of discretion -- from the cop who decides whether or not to pull over a vehicle all the way to the juror who decides to convict or acquit.  

No one in the entirety of the System, Professor Rosenberg noted, has more Power of Discretion than the Prosecutor.

The Prosecutor can decide whether or not to file charges.  The Prosecutor can decide whether or not to dismiss charges. The Prosecutor can decide what plea bargain offer to make and no one can force them to change that offer.   The Prosecutor can choose what evidence can ethically be put forward.  The Prosecutor can decide what the definition of "ethically put forward" means.  The power is not absolute.  There are checks and balances to it, obviously.  

But pound for pound, a prosecutor's discretion is so powerful that incoming baby prosecutors in Harris County used to receive a book entitled "A Prosecutor's Discretion" that we had to read as a job requirement.

The erroneous counter-argument to the principle that a prosecutor should dismiss any case he or she knows they can't prove is a cynical view of the phrase "everyone deserves their day in court."  Under this argument, a prosecutor knows she can't prove her case, but thinks that the Defendant should learn the valuable lesson of having the shit scared out of him by sitting through a trial anyway.  That's what courts are for, right?


If the proponent of a criminal case (the prosecutor for the State) doesn't even believe there is enough evidence to proceed forward, then they shouldn't be advocating otherwise to a jury -- even (and this is key) even if they 100% believe that the Accused is factually guilty.  A case without sufficient evidence shouldn't be filed regardless of a police officer's or prosecutor's intuitive belief of a suspect's guilt.  

A case should also not be filed to play to public sentiment, and it damn sure shouldn't be filed for political benefit.  

This is a fact that seems to be lost on Harris County District Attorney Kim Ogg.

In the wake of Hurricane Harvey, you may remember the Arkema explosion that happened in Crosby, Texas.  A brief summary of the event would be that conditions caused by Harvey led to an explosion at the plant that subsequently caused a great deal of pollution and some injuries to some of the emergency personnel who responded.  

A briefer summary (for Kim Ogg's purposes) is "political opportunity."

As a newly minted "progressive prosecutor" who had been in office less than a year, Ogg made a big showing in one of her now-infamous press conferences, announcing criminal charges were coming against Arkema and the people in charge of it.  Nobody likes polluters, right?  We have to protect our first responders, right?  What better way to show Houston how much an elected D.A. loves the community and first responders than going after one of those nasty polluting companies that seem to plague the community, right?  

Nevermind the fact that big Environmental Protection Agency violation cases are typically handled by the Feds, Ogg and her newly appointed Environmental Crimes Division Chief, Alex Forrest, were ready to be the proverbial David taking on a polluting Goliath.  

As she portrayed herself and her Office as crusaders, those of us in the legal community had a very strong feeling that Ogg had bitten off waaaaay more than she could chew.  Wide-scale environmental cases like what she was announcing against Arkema involve a tremendous amount of legal work and investigation.  Prosecutions like that normally come with a fleet of Federal Prosecutors working on the different aspects of the case.  A solitary prosecutor who had been working for the State less than a year was facing an impossible task.

As Arkema personnel began hiring prominent attorneys like Rusty Hardin, Dan Cogdell, Paul Nugent, Letitia Quinones, Chris Downey, Tim Johnson, Heather Peterson, Derek Hollingsworth, Cordt Akers and Nick Dickerson,  Ogg seemed to recognize that her new division chief may be in over his head as well.  

The Office quickly enlisted the office of prominent civil attorney Michael Doyle as a special prosecutor.  Doyle "coincidentally" just so happened to be a civil attorney suing the Houston Police Department over the infamous Harding Street Raid on behalf of the victims' families -- a cause that is also near and dear to Kim Ogg's heart.  It has been stated that Doyle's work on the case is pro bono.

So, to put this in context, Michael Doyle has a huge wrongful death suit against the City of Houston for the Harding Street Raid, which gives him a significant financial interest in the outcome of that case.  Kim Ogg's D.A.'s Office is involved in the investigation of Gerald Goines and the HPD Narcotics Division for their roles in that raid and the deaths of Doyle's clients.  When the Arkema investigation starts getting too complicated, Doyle is kind enough to offer his services to Kim Ogg for free.  See how that works?

So while Ogg worked on the Harding Street Raid, Doyle and his office worked on Arkema for free.  Seem a little conflict-of-interest-ish?  Check this out.

On April 10, 2019, President Donald Trump rolled into Crosby, Texas to showcase the region's recovery after Hurricane Harvey.  Now, I'm not a fan of Trump, but I think we can agree that the President of the United States visiting Crosby, Texas is a large and newsworthy event in Harris County.  

That's probably why Kim Ogg decided that April 10, 2019 would be the day that she had Alex Forrest and his merry band of prosecutors present the Arkema case to a Grand Jury.  While Trump was touting the region's recovery after Arkema on one side of the county, Ogg was indicting the company Downtown.   I'm sure that was a coincidence and not done for show, right.  That same day, Ogg announced in yet-another-press-conference, that Doyle would be offering his assistance in prosecuting the case.  

And later, that evening, she spent the evening at a fundraiser for her hosted by Amir Mireskandari and Muhammad Aziz, who was one of the lead attorneys in a lawsuit against . . . (give you one guess) . . . 


As it turns out, Kim Ogg is the Michaelangelo of painting a picture of impropriety.

But what does this have to do with "Raps and Rides?"  Well, the fact of the matter is that the Arkema charges kinda sorta weren't sustainable.  After a weeks-long trial, interrupted for months by COVID-19, the District Attorney's Office filed a mid-trial dismissal on several of the accused Arkema employees.

If you're curious as to why an Arkema director would be charged with "Assault of a Public Servant," that's because Ogg apparently thought it would be a more headline-grabbing charge if she insinuated that Arkema personnel had victimized the first responders who worked on containing the aftermath of the explosion.  

It is worth noting that Alexander Forrest, in filling out the mid-trial dismissal, checked the box that listed "Probable cause exists, but case cannot be proven beyond a reasonable doubt at this time."  That's the State's way of announcing to the Court "oh yeah, well I still think they are guilty."  It also slows up the process for the accused being able to get the charge expunged off of his record.  To Hell with that whole presumption of innocence business.

A mid-trial dismissal is an embarrassing moment for a prosecutor in most instances.  It happens, but it sends a message that you didn't know your case.  If you are in charge of directing a prosecution that could damage, destroy, or end someone's life, it is probably a good practice tip that you know your case.   It becomes even more embarrassing for someone like, say, an elected-District Attorney who held multiple press conferences about how good a case was (as she is wont to do), only to watch it fizzle and explode on the launchpad.  

Of course, some might argue that Harris County District Attorney Kim Ogg never really cared too much about what the outcome of the Arkema trial would be.  She got all the positive press, publicity, and fundraising done by just getting it indicted.  Who cares how it ultimately turned out?  

In the Arkema case, the "ride" was well worth the embarrassment of the Accused "beating the rap."

It's worth noting that at least three prosecutors who have departed the Harris County District Attorney's Office in the past several months (including my awesome law partner, Cheryl Chapell, have left resignation letters citing disgust concerns that the Office was pursuing cases based on public sentiment rather than "evidence-based prosecutions" as Ogg enjoys applauding herself for.  That's basically giving into the idea of mob rule, which a prosecutor with integrity should always shun.  

But in Kim Ogg's case, she responded to the dismissal of one high profile by indicting another one.

As if on cue, the District Attorney's Office followed the news of the Arkema dismissals with the announcement that they had secured an indictment against former-Baytown Police Officer Juan Delacruz for the offense of 1st Degree Aggravated Assault by a Public Servant for the May 13, 2019 shooting death of Pamela Turner.

Without speaking to the merits of the case against Delacruz, the timing of the indictment and the subsequent announcement is interesting.  Almost a year and a half after the shooting, the D.A.'s Office just so happens to announce an indictment on a high publicity case at a time that coincides with a high profile mid-trial dismissal.  It's almost as if the Office was sitting on taking the case to Grand Jury so that they would have it available for just such an occasion.

Whether or not Juan Delacruz ultimately beats the "rap" for which he was indicted won't be determined for months, if not years.  He will be experiencing the "ride" in the media for quite some time, though, and Kim Ogg will love every minute of it.  Her "tough on bad cops" schtick plays well with the liberal voters that she's otherwise alienated by not being quite as progressive as they had once hoped.  This is also why she keeps filing additional charges on Gerald Goines and anyone else she can possibly link to the Harding Street Raid.  

It's just good politics, even if it flies in the face of what a prosecutor with integrity should be.

A prosecutor with integrity knows that if she doesn't have confidence in the rap, there should never be any ride.

Sunday, September 13, 2020

Ricardo Rodriguez


My good friend and fellow defense attorney, Ricardo Rodriguez, passed away on Friday.  

I've heard that he had some health issues that were complicated by the COVID virus, but I haven't confirmed that.  The last time I saw him -- which doesn't seem like was all that long ago -- he seemed healthy and happy.  His sudden passing is a tremendous shock and a huge loss to all of us who knew him.

I posted about his passing on my personal Facebook page and the reactions to his death were all the same.  Everyone was heartbroken and shocked.  Everyone talked about what a gentleman and honorable man he was, and how he was kind to everyone he met.  

He deserved every last one of those accolades and then some.  He was a fixture and a giant of the Harris County Criminal Justice System.  He was a man who embodied Character.  And he was definitely a man who was a Character.

I first saw Ricardo Rodriguez when I was an academic intern working in the 209th District Court during the summer of 1998.  I didn't meet him then, but he was hard to miss if he was in the room.  He was tall and skinny, dressed in sharp suits and even sharper boots, coupled with jet black hair and his trademark mustache.  He moved through the courthouse with the confidence and ease of a lawyer who was willing to throw himself headfirst into any case with full gusto.  

I remember thinking that if they ever made a movie about this place, that dude with the mustache was definitely going to be a big part of it.

Although I wouldn't really get to know him for another few years, I gathered quickly that he was one of the attorneys who took on death penalty cases.  That was, and is, a pretty elite group of lawyers in Harris County, in my mind.  As a Spanish speaker, Ricardo would handle a great many death penalty cases during his long career in Harris County.  He knew his business and he was good at it.  I knew his reputation as being a good and hard-working lawyer before I met him.

In 2002, I was promoted to the rank of Felony Two and my first assignment was in the 228th District Court, which at that time was presided over by Judge Ted Poe.  Ricardo and Rachel Capote were the two main contract attorneys in the 228th, and that's where I first met them both.

For those of you who came after Judge Poe retired from the bench and headed to Washington as a U.S. Representative, you will have to take my word for it when I tell you that he was an extremely intimidating judge.  He was well-known in the media for being tough on crime.  He was well-known in the D.A.'s Office for having extremely high expectations for the prosecutors in court.  He was deadly serious on the bench and he exhibited no patience for foolishness or incompetence in his courtroom.

As a brand new Felony Two, I was very excited about being in his court.  But I was also very very nervous.  If Judge Poe was on the bench, I spent the morning concentrating deeply on just not screwing up.  I was very quiet back then, and Ricardo initially took my silence as either a lack of personality or maybe even a little bit of snobbery.

I remember standing by the jury box one day when he came up to me and said: "Murray, brother.  We need to loosen you up.  You're so tense.  You don't ever say anything."

I remember thinking "Me?  No one has ever accused me of not saying anything."  I didn't want him to think I was a snob.  I started telling him how nervous I was being in front of Judge Poe.  He nodded sympathetically and said that Judge Poe wasn't that strict and I needed to relax.  

And I did.  Slowly but surely.  I looked at the 228th like the song says about New York City.  If I could make it there, I could make it anywhere.  The more familiar I got with the court and with the extremely intimidating Judge Poe, the more loose and funny it became in the courtroom.  Although we didn't get to the level where we were cutting up when Judge Poe was on the bench, the dynamics between the prosecution, the court staff, and the defense bar were a very fun environment.

The leader of that pack was Ricardo.  He was the old hand with all the confidence in the world, but he was so nice -- so fostering to those of us who didn't quite know the ropes.  When Paul Doyle came in as a new Felony Three, the courtroom had the atmosphere of a sitcom.  Ricardo would exclaim "Que gacho!" periodically, and I had no clue what it meant.  But he would be so animated when he said, I would do it too.  He had to tell me I was using the phrase wrong.

On a side note, I finally looked up what "que gacho!" means before writing this post and saw that it directly translates to "how awful," which is a perfect phrase to describe how the courthouse community all feels about losing him.

I tried my first murder case against Ricardo and in front of Judge Poe.  That's a thing I'm very proud of.  That was some very intimidating stuff.  The case was out of LaPorte and it dealt with a body found in the trunk of a burning car.  It was largely circumstantial and Ricardo was more than happy to rattle my cage by pointing out that I had a big problem proving it.   The case got a whole lot better when the Defendant's girlfriend decided to testify against him.

In the many years that followed, Ricardo would always shake his head and note "I had you 'til his girlfriend flipped on him."  He was right about that.  The guy had a previous manslaughter conviction so once the jury convicted him, the punishment phase was going to be ugly.

Ricardo did what good defense attorneys do when they don't have anything to work with -- he preserved the hell out of the record by objecting to every single thing I did.  He objected to me doing the predicate wrong on introducing Judgment and Sentences until I had to get out my D.A.-issued predicate manual and read the predicate word for word.  

And if I didn't get it right, Judge Poe sustained every objection Ricardo made pointing out my screw-ups.  He even objected to the ink not being dark enough on the clerk's certification stamp on the paper.  

It was painful, but I learned so much from the experience and I learned so much from Ricardo.

We bonded through it.  We became good friends.  I knew all about his family and his elderly father whom he loved very dearly.  He talked of Laredo and his service in the Army in Vietnam.  He brought pictures from his days in the military.  In many of them, he was wearing a large bandage on the side of his neck from a grazing wound from enemy fire.  He knew my dad had served in Vietnam and he always asked how my dad was doing, every time I saw him.

He was one of the funniest, most cheerful people I ever met.  His self-deprecating stories about his dating life always was a hot topic of conversations after a weekend in court.  

Every time I saw him, he'd put his hand on my shoulder and call me "brother."  He always asked about me, my family, everyone, everything.  We'd always talk about going to get crawfish together.  We would go do that on occasion when I was in the 228th.  I wish we had kept up with it as years went by.  

I can think of a million Ricardo stories that were all so funny and showed what a good man and good friend he was.  Based on the reactions on Facebook, I think we all have those stories about him.  

He retired from practice about two years ago and he was extremely excited about leaving the CJC for his family ranch in Laredo.  His going-away party was huge, attended by retired and active judges, prosecutors, and defense attorneys who came to give them their best wishes.  We were all sad to see him retire and leave Houston, but he was so happy about it that we couldn't help but be happy for him.

It is heartbreaking that he didn't get to enjoy that well-deserved retirement longer than he did.  Nobody deserved it more than he did.

He was a true gentleman, a courtroom warrior, and a beloved friend.  

Rest in peace, Ricardo.  You were the best of us.

Monday, August 3, 2020

A Proposed Alternative to NRG Jury Selection

Over the weekend, I received a couple of comments on my last blog post wanting to know what my plan would be for getting jury trials back up and running.  Those are fair comments.  I try to suggest alternatives to plans I criticize, but I recognize that I don't always do so.

When I was walking around NRG Arena and looking at how woefully insufficient it was for the purpose of picking a jury, I mentioned to one of the prosecutors there, Paul Fortenberry, that sometimes there just isn't a solution.   Not having a solution doesn't reduce the urgency of the situation.  As humans, it is our nature to be averse to the idea that there may not be a viable solution in a crisis.  

The negative reaction from criminal trial lawyers (and by that I mean both criminal defense attorneys and prosecutors) to the NRG Arena Plan is two-fold. The first being that nobody bothered to make any attempts to gather input from any of us before diving headfirst into the plan.  I recognize that this is going to make the Powers That Be respond with "Oh, so you're just mad because you weren't included!"  But that's not where I'm going with this.

If the actual trial lawyers had been consulted from the beginning, maybe we wouldn't have ended up in a contract deal with NRG that was too big to fail -- or get out of.  I can't imagine a trial lawyer on earth who would have ever endorsed the idea of picking a jury with such bad audio and visual conditions.  Maybe if trial lawyer input had been invited (and given any weight) on the front side, the County wouldn't have been so quick to pull the trigger on NRG.  If they hadn't pulled the trigger on NRG, they wouldn't be so firmly entrenched against any other ideas.

The second factor in the negative reaction from criminal trial lawyers is based on the fact that we have a different set of factors at stake than civil trial lawyers.  Please understand that I'm not trying to diminish the importance of a civil trial.  I'm really not.  But the differences between a civil trial and a criminal trial are glaring when you put them to the test under the NRG Arena Plan.

To start off with, civil firms, especially the larger ones, might actually have the capacity to bring enough personnel to NRG Arena and deal with the extraordinarily wide layout where venire members will be seated.  They have associates and a stable of clerks that can spread out and pay attention to juror reactions and responses.  (NOTE:  Before my friend Jason Truitt starts indignantly telling me how he tries all of his civil cases alone, while fending off a pack of wolves with his bare hands, I realize that this isn't always the case.).  

Additionally, civil jury selection is a different animal than criminal.  I was on a civil panel one time and I was stunned at the differences.  The lawyers pretty much presented their cases during voir dire and got relative commitments from all of the potential jurors.  It was crazy!  They also seemed to be provided with as much time as they needed for voir dire.  Must be nice.

The biggest difference, however, is that a jury verdict in the civil world often seems (at least to an outsider) to be one of many steps to reaching the final resolution of a case.  It usually appears to be far from the last one.  For reasons that escape me, judges cut awards from juries or negotiations continue about what will actually get paid out after the jury has spoken.  For the criminal case, it ends when the jury renders its verdict in 99% of the cases.  If the Accused is found Not Guilty, the State doesn't get a second shot at it.  If he or she is found guilty, odds are slim that the case will come back on appeal.

The criminal jury trial is tried with (in most circumstances) irreversible consequences.

The reason that I'm revisiting all the reasons to hate the NRG Arena Plan is that what my suggestion would be as an alternative would be a radical departure from the NRG Arena Plan.  It would be expensive, controversial, flawed, and pretty widely disliked by the judges.  Please remember that when I began this post, I noted that sometimes there just wasn't a good solution.

My suggestion is comprehensive questionnaires and individual Zoom voir dire on all cases -- just like on a death penalty capital case.

For those of you who are outside of the Criminal Justice World, on almost all cases that do not involve the death penalty, juries are selected in a process where the attorneys ask a group of about 65 potential jurors questions over the course of a few hours.  The attorneys can ask individual jurors specific questions if they need to, but generally, the entire panel of 65 will be there when those questions are asked.  At the end of the process, strikes are made and the first 12 people left standing become the jury.

In a death penalty capital (under normal circumstances), more time is spent selecting the jury for obvious reasons.  In these cases, a large panel is generally brought over for an initial voir dire from the court, but then the individual venire members are scheduled to come back at designated times for some solo questioning from the lawyers.   Additionally, jurors on death penalty capital cases are provided with a fairly lengthy questionnaire containing questions relevant to serving on a death penalty case.  In many instances, the prosecution and the defense will read a juror's questionnaire and agree to strike him or her prior to the individual questioning.

My suggestion for selecting a jury in a COVID world is largely based on that model with a couple of relatively minor modifications.  Here are the steps:

1.  Jury summons goes out --  Just like during normal times, the notices will go out in the mail for "virtual jury duty."  Rather than being called into a jury assembly room as they would during normal times, the venire panel will be requested to check-in online prior to their service date and time.  Alternatives for those who do not have internet access will be provided at alternate sites around the county (like a Justice of the Peace courthouse or a library).

2.  Jury Duty Day --  On the day and time, the jurors who have checked in will then be parsed out to their individual courts.  They will then log onto a Zoom (or other conferencing platform) that is specific to the court they have been assigned to for jury service.   There, they will hear a general voir dire from the judge that covers certain issues relevant to the case to be heard.  This could be something pre-recorded or done live.  They will also be provided with an online questionnaire agreed upon by the State, the Defense and the Court.  If they have any type of scheduling, health, or other concerns, they can make note of them in these questionnaires.  

The individual venire members will then be given a date and time to log back in for individual voir dire.

3.  Behind the Scenes --  The State and the Defense will both have access to the venire members' questionnaires and have overnight to read through them and evaluate them.  Like in capital voir dire, agreements can be made by the parties on strikes.  Questionnaires can also cover scaled questions that lead to strikes for cause.  If the State and Defense agree that a juror is gone, they notify the Court for approval and that juror is notified that he or she doesn't need to report for his or her scheduled individual voir dire.

4.  Individual Voir Dire -- When I started to write this post, I envisioned individual voir dire being conducted on Zoom, but the more that I think about it, that doesn't really seem necessary.  If individuals were showing up at slotted times rather than en masse as a group of 65, it would be far easier to social distance.  Most members of the Defense Bar are opposed to Zoom, and this may be an area of compromise.  Personally, I wouldn't mind it either way.  An individual voir dire trumps the basketball arena-style proposed at NRG Arena, even if it is done by Zoom.

5.  Selecting the Jury --  Like with the death capital voir dire, there are two ways of doing this.  One option is that a decision is made after a venire member's individual voir dire over whether or not the State or the Defense wants to exercise one of their peremptory strikes.  If neither does, that person officially makes it on the jury.  The other way is to get a qualified pool of thirty-two potential jurors (that accommodates the 10 strikes each for the Defense and the State, plus 12 jurors, for those of you not accustomed to picking juries) and then making the peremptory strikes.

Personally, I like the latter version because the attorney can make more educated strikes knowing what the entirety of the eligible panel looks like.  However, the first version could potentially be faster.  Either way, it is safe to assume this method of voir dire would take several days, if not a week or so.

The Powers that Be would probably argue that the length of voir dire is too long and that's why using NRG Arena is the better method.  I disagree.  If this method was followed, theoretically, all the courts in the courthouse could pick a jury whenever they wanted to.  Since mass panels wouldn't have to show up in person, it wouldn't violate the rules of social distancing.  The current plan at NRG is to only call four panels at a time, at most.

Even if the argument over expediency is ultimately won by those who support the NRG plan, expediency isn't the most important goal.  Not by a longshot.  Safety is more important.  And more important than both expediency and safety is fairness.  

This method allows both the State and the Defense to accomplish a meaningful voir dire session with the venire panel in a way that the NRG plan doesn't come close to.  Even though I'm sure there are multiple logistical flaws that I'm glossing over, this system is fairer to both sides.

It also makes things a hell of a lot easier for security for inmates in custody to be brought to proceedings by the Sheriff's Office.   

It also might save a little more money than that $16 million (and counting) already approved by Commissioners Court for the NRG plan.  I'm just saying.

Then again, nobody asked me.  

Nobody asked any of us trial lawyers.

Friday, July 17, 2020

NRG Arena and the Streisand Effect

I enjoy being a defense attorney.

At least on most days.  

It's not always easy -- especially when you find yourself in a jury trial.  

You often find yourself behind the 8 Ball.  Your client is charged with doing something unpopular -- sometimes really really unpopular.  Usually, the evidence is pretty strong against your client, so you're fighting an uphill battle.  In many instances, you find yourself trying to mitigate an outcome rather than avoid it.  When you're a defense attorney, home runs are far and few between.  Quite often, a base hit feels pretty damn good.

If the State asks for Life and you help convince a jury that 20 years is more appropriate, that's a win in most cases.  On those occasions where you get the big NG verdict . . . man, those are something.  If you have never been a defense attorney and you find it unseemly when you see a defense attorney crowing about a Not Guilty in trial, have a little patience.  Those are harder to come by than you might think.

More often than not, the job of a defense attorney is just doing everything in his or her power to ensure a fair trial.

And doing that begins with picking a fair jury.

Now, the idea of "picking" a "fair jury" is a misnomer if ever there was one.  First of all, as any trial lawyer can tell you, juries aren't selected.  Juries are the remnants of a jury panel where numerous potential jurors have been de-selected -- removed from consideration from serving on a jury because they either couldn't follow the law (and are stricken for Cause) or because either the prosecutor or defense attorney utilized one of their peremptory strikes to remove them from the panel.  Once those strikes are done, the first twelve remnants become the jury.  In many cases, the next one or two become alternates.

The art of that de-selection takes some work and brings a lot of dynamics into play.  The attorney (whether he or she is a prosecutor or a defense attorney) needs to be charismatic and convincing as an advocate.  As a defense attorney, you have to be cognizant of the fact that if the jury isn't going to like your client, you better be doing everything you possibly can to make them like you!  But more importantly, an attorney has to identify those potential jurors that are bad and sometimes fatal your case.

One of the few funny things I remember former-District Attorney Chuck Rosenthal ever saying was that if he was only allowed to ask a jury panel one question, it would be:  "How many of y'all came down here today just to f*ck me over?"  I get his point, but in more delicate terms, I've always considered jury selection to be the art of rooting out the time bombs -- finding those jurors who never ever ever were going to even remotely consider the possibility of giving you or your client a fair trial.

As a prosecutor, I ran into the occasional juror who was anti-establishment or had a bad experience with the police and couldn't be fair.  But it is far more prevalent to find jurors who can't be fair to the defense -- those who presume your client must have done something or else there wouldn't be a trial; those who presume that if your client doesn't testify that he must have done something; or those who would never consider probation (even when the law allows it) on a serious case.

As a defense attorney, you've got to find those jurors who are time bombs, identify them on the record, and get them removed from your damn jury.  The trial is going to be tough enough as it is, so it seems only right that you at least start off with a seemingly neutral jury, right?

It is not possible to overemphasize just how important jury selection is and how much goes into it.  An attorney has to ask the right questions, act the right way, read the jurors body language, their facial expressions, and make note of them for when it comes time to make those strikes.  And keep in mind, on felony cases, the lawyers are talking to (usually) 65 potential jurors and they have about thirty minutes to an hour to ask all their questions and get their analysis done.

The reason I bring this up is that I got invited to check out the facilities at NRG Arena today and get a feel for how Harris County plans to select juries in a post-COVID world.  I guess you get fancy invites like this when you do a lot of complaining on your blog like I was doing last Saturday with this post.  I wasn't the only one invited to attend.  Texas Criminal Defense Lawyers' Association President Grant Scheiner and Harris County Criminal Lawyers' Association President Mark Thiessen were there, along with criminal defense attorneys Joe Vinas and Chris Tritico.  The Harris County District Attorney's Office was represented by Colleen Barnett, Paul Fortenberry and Tanisha Manning.

The de facto hosts of the tour were Harris County District Clerk Marilyn Burgess and 152nd District Court Judge Robert Schaffer, who is the Local Administrative District Judge (as I pointed out in my last post).  There were several other representatives of the District Clerk's Office who also hosted and answer questions.  It was quite informative and all of us guests had our cell phones out and taking pictures.  No one seemed to be bothered about us taking the pictures and/or videos.  Why should they be?  As I mentioned in my earlier post, Burgess has already made a YouTube video of what the process would be like, and the Houston Chronicle ran an article with photographs of everything inside on July 6th.

I'll come back to that in a minute.

So, my thoughts on the theoretical process were . . . not positive.

I'm no doctor or epidemiologist, but there were several things that seemed problematic to me.  

For starters, there are two lines leading to two metal detectors for the potential jurors to go through on the way inside.  Each one has those little stickers on the floor to mark appropriate social distancing.

There are about twelve of those little social distancing stickers between the metal detectors and the door in each line, so mathematically, there will be twenty-four people in line in that area.  Everybody else will be lined up outside, waiting to get into the building.  I didn't get a close-up shot of it, but I'm talking about the area under the overhang in front of the building.

There are some signs there that tell people to stay six feet apart, but as of this writing, there isn't anything other than that to ensure social distancing outside the doors.

Once the potential jurors clear the metal detectors, they check in at a kiosk (using those single-finger condoms to register their presence) before going into the main pool room where they will wait to be called into smaller breakout panels.

The potential jurors will then be called out of this area into their panels for trial.  As of right now, there is only one room for actual jury selection that has been built out.  However, we were all told that they are building out this area into three individual rooms for jury selection.  The plan is to have 8 feet high partitions, with drop-down, soundproof "blankets" separating those three rooms.

As it currently stands, only one room is ready, and that's the room profiled in the Houston Chronicle where the Grand Juries were selected a few weeks ago.  The potential jurors who are guided to these rooms will be issued face shields to go over the mandatory masks that they will already be wearing.

Now, this picture doesn't really do the space justice.  It's looking dead on at the center section, although there are two additional sections to the left, and at least one section to the right (maybe two, I don't remember).  If you look closely, you may see little orange markers on every fifth seat, denoting where potential jurors will be seated in accordance with social distance.

If you'll remember, this area needs to accommodate roughly 65 potential jurors on a felony panel, and given the spacing, that takes us up around fifteen rows.  If you look closely, you may see TCDLA President Grant Scheiner raising his hand on that last row.  If you think he's hard to see in this picture, you have no idea how hard he was to hear.

Have no fear, though.  We were told in a meeting the day before that there will be helpers running up and down the aisle with "boom mics" to help us hear what those folks in the cheap seats are saying.

Speaking of what people are saying, Judge Schaffer told us during our tour that jurors would be required to lower their face masks when answering questions, but it would be up to the individual judges as to whether or not they kept their masks up or down during those times when they were not specifically answering questions.  And by the way, everyone (including the attorneys) will be wearing the face shields at all times. 

So, let's take a gander at what this will effectively look like during jury selection.

A lawyer will ask a question of a juror and will need to run up those stairs to engage with them if he or she wants to see the facial expression of the juror when they answer that question,  In the meantime, rows and rows and columns and columns of jurors will be behind that lawyer while he gets the answer from the one he or she has posed the question to.  Making the (wildly presumptive) assumption that the other jurors can even hear the response from the queried juror, it will be utterly impossible to see how the other potential jurors react to that question.

Most lawyers have at least one additional lawyer sit with them during a trial to help them take notes on the panel, but under this system, a lawyer is going to need five to six lawyers sitting with him or her to take notes.  This doesn't even begin to factor in those questions or responses that might draw objections from the opposing side and rulings from the judge.  

Other things not factored in:  the role of interpreters for non-English speaking clients, accommodations for handicap jurors and/or attorneys, time limits, potential visual aids, jury charts, and common sense.

For anyone who has ever picked a jury, it is patently obvious that this set up is absolutely not conducive to effectively picking a jury.  There is no way to see those time bombs.  Not even when they are sitting right behind you. 

Any attorney who willingly agrees to this set up is committing malpractice, in my opinion.

So, here's where things get interesting.

Apparently, the Powers that Be who invited us out to this tour of NRG Arena assumed our reviews would be positive.  As I mentioned above, nobody blinked when we were all taking photographs and videos.  I posted that picture of Grant Scheiner in the back row on Facebook with a semi-sarcastic comment about not being able to hear.

So, I was kind of surprised when I got back home from the tour to receive a message from my answering service reflecting a phone call from Clay Bowman, the District Courts Administrator.

I'd gotten an e-mail from Clay, too.

So, I called Clay back.  He seemed a little nervous and just kept insisting that he was just relaying a message from Judge Schaffer. 

Apparently, that message was that if I didn't have anything nice to say, then I didn't have permission to use a picture of NRG Arena at all.    I responded that I found that pretty confusing in light of the pictures being utilized in the Houston Chronicle article and Marilyn Burgess's YouTube video.  But, those were different.  Those portrayed the use of NRG Energy in a positive light.  Mine did not.

So, I took my picture down and replaced it with a post explaining what had happened.  I think it ended up being a crystal clear example of the Streisand Effect. The reaction to that was far angrier than my original post of Grant in the back row.  I also talked about what happened on Reasonable Doubt.  I heard from several attorneys who expressed their opinion that while filming or photographing a criminal proceeding must be permitted by a judge, a still photo of a bunch of mostly empty seats didn't fall under that description. 

But to be on the safe side, I heard from a few judges on the misdemeanor and felony side of things who were more than happy to give me permission to use my photos, because they believed they promoted the transparency the system needed.  Shout out to Judges Andrew Wright and Brian Warren for the judicial blessings!

And to Judge Schaffer, I'm sorry for the misunderstanding.  I know you and a great many other people are doing the best you can to make this system work.  Respectfully, I just disagree that it will.  I think it puts jurors' health at risk, and I think it will deprive my clients of a fair jury to hear their cases.

I'm sorry to hear that you feel I need permission before I can use a picture of an empty bunch of chairs to express that.

It seems like there are much more important things at stake at the moment.