More Musickal Micromanagement

For as long as anyone can remember, there has been a written policy in the Harris County District Attorney's Office regarding the handling of criminal cases involving fatalities.  Cases such as Murder, Manslaughter, Criminally Negligent Homicide, Intoxication Manslaughter, etc. all fell under the umbrella of what we called "Dead Body Cases" back in the days when I was there.

Although a prosecutor with the rank of Felony Two or higher was allowed to take a fatality case to trial, some decisions could only be decided by more senior prosecutors.  For instance, when a murder case was first filed, charges could only be accepted by the acting Chief who was working Intake at the time.  Although the Chief could file a murder charge, only a Division Chief could make the recommendation for what term of years could be made as part of a plea bargain offer.

Capital Murders, obviously, had a higher level of scrutiny because there were more decisions to be made.  Decisions like "is this case best filed as a capital or a non-capital murder?" and, more importantly, "do we seek the death penalty on this case?" had to be made by the elected District Attorney himself.  Capitals were reviewed by the Chief of the court they landed in, who then consulted with his or her Division Chief, who then took it to the Trial Bureau Chief, and then we all presented it to the District Attorney for the final decision.

The decision on how non-Capital Murders were handled was far less complicated.  The case landed in the court.  The Chief read it and decided whether he or she was going to handle it or pass it on to the Two.  Once the prosecutor had reviewed the evidence and talked to the victim's family, he or she met with the Division Chief, who would make the plea bargain recommendation.

It was a pretty simple process -- unless the case was extremely complicated, it was usually just a quick meeting.  All of the prosecutors involved relied on each other's knowledge of what they were doing.  I had the great fortune during my time as Chief that I supervised some very good Felony Twos.  I could rely on their assessments of cases.  Hopefully, my Division Chief had some level of confidence in me, as well.  I can only remember one instance where there was any disagreement over what recommendation to offer on a Murder case.

When Kim Ogg took over the Harris County District Attorney's Office, she vowed a review (and possible reworking) of the Office's Operations Manual.  It's only been 22 months since she made that vow, so we can still hold out hope that she might actually get that done before her first term of office is over.

In the meantime, the Powers that Be have recently decided that process of getting recommendations on Murder cases was just too damn simple.  Clearly, that meant that there was waaaaay too much discretion floating around in the Office.  Felony District Court Chiefs (who, once again, I will note have more experience at being a prosecutor than the Felony Trial Division Chief) were apparently running amok with their willy-nilly recommendations on Murder cases.

As usual, District Attorney Kim Ogg turned to the Grand Master of Micromanagement, JoAnne Musick, to get some Rules up in this place.

JoAnne did NOT disappoint.

In a memo this week, she outlined a modern marvel of procedure in the handling of Dead Body Cases.

Offers on Homicide Cases:

All offers on homicide cases must be approved by the Division Chief [JoAnne Musick] or her designee.  

"Designee?"  I feel like I'm back in law school, taking Trusts & Wills.

The general procedure shall be as follows:

The Chief of the court shall prepare a memorandum setting forth basic facts as well as mitigating facts and conclude with the Chief's recommendation.  A sample is attached.

Well, thank God there was a sample.  A high school education, college degree, law degree, and being a Chief Prosecutor in a Felony District Court in Harris County, Texas does not mean that you are smart enough to write a freaking memo from scratch, people.

The memorandum shall then be emailed to the appropriate Section Chief. 

What the hell is a "Section Chief"?  When did the Office get those?  Did we really need an additional layer of management between District Court Chiefs and Division Chiefs?

The Section Chief shall review the memorandum and, if appropriate, request clarification or additional information be added by the Court chief.  Once the Memorandum meets approval of the Section Chief, the Section Chief shall add any additional notes and state whether or not they concur with the chief's recommendation.  The Section Chief shall forward the final memo to the Division Chief and Deputy Division Chief.  If the offer is deemed appropriate, the Division Chief and Deputy Division chief shall then indicate upon the face of the memo to that the offer is approved and the final copy of the memorandum shall be added to eCase.  If the Division Chief and/or Deputy Division chief disagree with the recommendation, they shall schedule a meeting with the Court Chief and Section Chief to address their concerns.  Once an offer is approved, then, and only then, is the Court Chief authorized to convey the offer to the Attorney for the Defendant, or, in the case of a pro se Defendant, the Defendant.  Any counteroffers or deviations from the approved offer must be approved by the Division Chief.

So, if getting a recommendation on a Murder case was a football game, the process would look something like this:



I love the "once an offer is approved, then, and only then, is the Court Chief authorized to convey the offer . . ." which is JoAnne's little way of saying "your ass better not even think of deviating from my carefully planned out system."  Additionally, JoAnne has created a buffer zone with the requirement that the Section Chiefs must approve the form of the recommendation before bothering her (JoAnne) with looking at it.  I suppose this will give her more time to make up some more rules.

And the funny part is that after ALL OF THIS, a counteroffer (which, make no mistake about it, there will be a counteroffer) just goes directly back to the Division Chief.

And then JoAnne wrapped up her e-mail with this gem:

We know this is a departure from what has been happening since January 2017, and I'm sure you have plenty of questions.  For that reason, we will have a Q&A on Friday at 2:00 to address your concerns.

Um, yeah.  Because nothing makes learning a new ridiculously micromanaged new policy more palatable than having a meeting about it at 2:00 p.m. on a Friday.  Were you sure that you didn't want to just call a mandatory meeting at 7:00 a.m. on a Saturday, Jo?

Look, I understand that Murder cases are the most important cases that a District Attorney's Office is tasked with prosecuting.  I'm not making light of that, nor am I suggesting that those cases not be taken seriously.   However, having good prosecutors who actually know how to try a murder case is far more important than having a regimented procedure of how to place recommendations of them.

Unfortunately, Kim Ogg and JoAnne Musick have proven to be much more adept at running experienced prosecutors out of the Office rather than cultivating them.  As long as they continue to get rid of good prosecutors, nobody is going to be all that impressed by the recommendations stemming from the Musick Plan.

It's just the sound and the fury, signifying nothing.

Lessons in Leadership

U.S. Attorney for the Southern District of Texas Ryan Patrick was formally sworn in during his investiture ceremony yesterday.  The Houston Chronicle's Gabrielle Banks wrote this article describing the ceremony, which I noted was a little different from the original article she wrote about the event yesterday.  I tried to find the original article online because it had some interesting quotes from some of the Assistant U.S. Attorneys that work for Patrick, as well as some quotes from Federal judges and defense attorneys.  Unfortunately, the original version seems to be unavailable.

This quote from Chief U.S. District Court Judge Lee Rosenthal did make it into the final version of the article:

"He comes from a political family but his current focus is not on politics, it's on policy," Rosenthal said. "And that is how it should be as he faces intensely tactical problems of running this large and complicated office in our large and very complicated district . . . at a large and complicated time."

In the original article, Banks quoted a few others, including Mark Donnelly,  Executive Assistant U.S. Attorney, who noted that Patrick's approach to leading is dictating the policies of the Office and then relying on his experienced AUSAs to do their jobs effectively.  Apparently, this is causing a high boost in morale within the U.S. Attorneys Office and, lo and behold, the Office seems to be running well.  The original article quoted defense attorney Charles Flood, who was also highly complimentary of the way the Office is being run by Patrick.

The original article was striking because it described an office of prosecutors that seemed to run on a philosophy that is the polar opposite of the Harris County District Attorney's Office under D.A. Kim Ogg.  In the earlier article on Patrick, it described his desire to stay away from micro-management, in favor of relying on professional prosecutors who were doing the job and doing it well before he took office.

By contrast, Kim Ogg has . . .  well, Kim Ogg has JoAnne Musick.

While Ryan Patrick is getting lauded for running an office where prosecutors are enjoying their jobs and their office's clearly stated principles, Musick continues to run through low level disposed cases with a microscope.  While Patrick treats the prosecutors who held their jobs long before he arrived with the respect they earned, Musick continues to talk to prosecutors (with far more prosecutorial experience than her) as if they were children.

Just a side note here, let's not forget that JoAnne originally left the D.A.'s Office as a relatively new Felony Two.  She never got close to earning the stripes of Felony Chief, but that still doesn't keep her from dressing down far more senior prosecutors.  I've mentioned this twice before.  The first time was back in February.  The second time was less than a month ago.

In the four weeks since I wrote that last post, two more senior Felony Chiefs have declared their intention to leave the Harris County District Attorney's Office and head to work for the U.S. Attorney's Office under the leadership of Ryan Patrick.

Who could blame them?  If one were given the choice of working for an Office with a clear vision statement that comes with being treated with respect versus an Office guided solely by public opinion where senior prosecutors are treated like dim-witted children, it really isn't much of a contest, is it?

The U.S. Attorney's Office for the Southern District of Texas is thriving while the Harris County District Attorney's Office is a sad shell of what it used to be.

Kim Ogg should learn a lesson in leadership from Ryan Patrick.

An Open Letter to Kim Ogg About Her Prosecutors

Hi Kim,

Long time, no talk.

I heard that your upper admin recently started some new thingy called "Selfies and Plans for Success" or something like that.  If I understand it correctly, the "Selfies" component is for each prosecutor to keep a file on his or her computer of all the professional accolades accumulated over the years.

I'll be honest with you -- it seems a little silly to me.  Prosecutors are too busy working their butts off these days to take time for patting themselves on the back.  Self-aggrandizing is really more of a sport for the politicians.  Not to sound too much like a grumpy ex-prosecutor, but back in my day, the upper admin knew the difference between the great, good, average and bad prosecutors.  They watched them in trial.  They read their evaluations.  They didn't ask them to make a "sizzle reel" as if they were trying out for American Idol.

Real prosecutors ain't got time for that.  But if you are keeping tabs on the compliments that the prosecutors in your office receive, let me pass one along:

Harris County prosecutors are the best in the business.

Now, I know I'm biased since I'm a former Harris County prosecutor and all, but over the past nine years I've spent in private practice and the last five years I've spent consulting on other projects, I've had the chance to see quite a few more jurisdictions than I had before 2009.  I've dealt with prosecutors in numerous other counties and numerous other states.  I'm not saying anything negative about the ADAs in those other locales, but there are few that can compare to a seasoned Harris County prosecutor.

Harris County prosecutors have seen every type of case and prosecuted it.  They know the rules of evidence like the backs of their hands because they've gone to trial so many times that procedure is ingrained in them.  They know the value of the case.  They respect their adversaries.  They honor their word.  They know what in the hell they are doing in ways that too many other jurisdictions miss the boat on.

And since Hurricane Harvey, your prosecutors have been absolutely killing it.

I'm not just talking about keeping intake up and running through the storm.  I'm talking about the aftermath.  The past five or six months where they have had to drag buckets of cases to various and sundry makeshift courtrooms across the county.  They have had to keep up with their Discovery obligations and learn a little bit of eFiling in the middle of all this too.  They literally work around the clock on their jobs.

It has not been unusual during post-flood conditions for prosecutors to answer texts, emails and phone calls late into the evening.  I got a (timely) Discovery notice the other night from a prosecutor at 11:45 p.m.  I've seen prosecutors lug additional files to court so some defense attorneys who really really really hate driving in the Galleria area wouldn't have to come to your Office.  I've had two prosecutors drop Discovery off at my house.  I've had another let me come talk to her about a case at her house.

For a displaced group of prosecutors, they couldn't be more accommodating or professional.  They do their jobs and do them well because they love what they do.

You should be proud.  Actually, you should be honored to lead such a group.

But I kind of get the impression that you aren't honored.  I keep seeing and hearing more and more horror stories about folks in your upper admin who treat your rank and file prosecutors like untrustworthy idiots with bad judgment.  I keep seeing more and more outstanding prosecutors leaving Harris County to go to Fort Bend or Montgomery or Travis County.  I know of others praying to get on with the Feds.

They don't want to leave the prosecutorial profession.  They just want to leave you.  That's a shame, because I'm really a big fan of your outlook on the Criminal Justice System.  That's why I voted for you.  That's why I normally defend you when the media is looking for somebody to give a negative sound byte about you.  I know we had our differences on the whole David Temple thing, but on the whole, I still like your policies.

But dammit, Kim.  You have got to start treating your prosecutors better.  They've been through a lot and they've made you look good in the process.  It's time you started treating them like the highly skilled professionals that they are.

And the first thing you need to do to make that happen is have a little chat with JoAnne Musick, your trial bureau chief.

I've known JoAnne since I was a baby prosecutor back in 1999.  She was the misdemeanor chief of Court Six (I believe) back then and we were friends.  It's a good thing we were friends back then, because I saw the way she treated people she didn't like.  She was one of those chiefs who picked a favorite in her court, and God save you if you weren't it.  I watched her nitpick the living hell out of prosecutors she supervised and then share her scathing reviews with all who wanted to hear.

She was a career prosecutor back then.  She bragged about how she was "raised on the knee of Johnny Holmes" and she acted as though she was heir to the throne.  Don't get me wrong.  JoAnne was good at her job.  She was smart and she liked to teach.  But that mean streak, man.  You didn't want to run afoul of that.

When plans changed for JoAnne, she moved to the defense bar.  Now, as someone who initially believed himself to be a career prosecutor, I can tell you that the change to the defense attorney can sometimes be a little awkward at first.  It wan't for JoAnne.  Within the space of one job change, JoAnne's D.A. "family" became known as the vilest group of liars and unethical cheats known to mankind.  The razor sharp tongue and opinions that she once used only on confused Misdemeanor Threes suddenly were being applied to the entirety of the Office.  She was so angry towards the Harris County District Attorney's Office that her former co-workers honestly didn't know what to make of it.

I remember one very senior chief dryly remarking, "I don't know why y'all are so surprised that JoAnne is just as big of a [expletive deleted, but you can probably guess] for the defense bar as she was for us."

And of course, the Defense Bar just ate that up.  They loved JoAnne and her insightful hatred of where she used to work.  To date, she's the only person to serve as President of the Harris County Criminal Lawyer's Association twice.

In the spirit of full disclosure (and in case you haven't guessed already), JoAnne and I aren't exactly buddies.  We got crossways when I was still with the Office after she left.  That got magnified greatly during the whole David Temple case reversal.  She was blasting me on Twitter from the HCCLA account.  It probably had something to do with the fact that one of her law partners at the time was Temple Defense Team Member John Denholm.  Those were good times.

Many of us were stunned when JoAnne took a job with your Administration, Kim.  After all of the things she had said about prosecutors, cops and victims of crime, we all thought those bridges had been burned, nuked, and spat upon.

But all we really needed to do to understand why JoAnne went back to an Office she hated so much was remember what she truly loves:

Power.

JoAnne loves being the person in charge and belittling those beneath her.  It's like, her thing.

Her move to Felony Trial Bureau Chief (replacing the far more respected and liked John Jordan) was right up her alley.  She's been going to town ever since she took over her spot, too.  Calling out prosecutor after prosecutor over long-disposed cases and demanding explanations as if she were addressing a renegade pre-commit.  You can call Harris County prosecutors many things, but "soft on crime" has never been one of them.

JoAnne clearly still has the same enthusiasm for belittling those under her as she did when she was a misdemeanor chief.  I've heard the way she talks to prosecutors.  I've heard about her memos. It is so very very vintage JoAnne.

JoAnne isn't talking to renegade pre-commits, Kim.  She's talking to seasoned, trained, ethical, professional, stand up prosecutors.  Prosecutors who have somehow managed to remain upbeat and together despite all they've gone through after Hurricane Harvey.  I wouldn't talk to my dog the way JoAnne talks to prosecutors.

And I don't really like my dog that much.

In short, Hurricane JoAnne is having a far more detrimental effect on your prosecutors than Harvey ever did.  I hope that you'll do something about it.

Many moons ago, when you were working for the D.A.'s Office under Pat Lykos, I ran into you at the elevator bank of the CJC.  It was in the middle of all that crazy Grand Jury surveillance-era and you shook your head and said, "We really need to go grab a beer and catch up on what is happening around here."  Over the months and years that followed, when you and I saw each other around the building and always noted how we still needed to have that beer.

We never did have it, and I'm guessing you probably wouldn't want to have one with me now.  I understand. But all of this is what I would tell you if we were to have that beer today.

You have some of the best prosecutors in the world working for you right now. Treat them with the respect that they have earned and deserve, and they will help you accomplish all of those things that you want and need to do.

Donations for Kirby Taylor

As most of the CJC Community knows, Kirby Taylor, a friend and defense attorney, was the victim of a brutal attack that badly injured him, and killed his son.

HCCLA's Rand Mintzer, Andrew Wright and JoAnne Musick are running in the Woodlands Marathon on March 5th to raise money to help Kirby with his medical bills.  You can help by donating by going to this website and donating through Paypal.

I've known Kirby since I've been a lawyer.  He is one of the kindest souls down at the courthouse.  He has a great sense of humor and an infectious laugh.  The idea of someone want to cause him harm defies reason.  All of our thoughts and prayers are with him during this tragic time in his life.

Please donate if you can.