The Implosion of Kim Ogg

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

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

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

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

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

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

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

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

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

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

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

Moving on . . .

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

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

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

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

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

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

And, as if all of that weren't enough to make Kim Ogg want to just hibernate until 2020, we have this late-breaking news.  Today, the Houston Police Officer's Union issued a statement blasting the Harris County District Attorney's Office for refusing attempted sexual assault charges at intake.  It reads, in part:

Our officer contacted Assistant District Attorney John Denholm and relayed the details of the attempted sexual assault, a 3rd degree felony.  Denholm asked the officer whether the complainant was "illegal."  The officer advised that he did not ask and did not think it was relevant.  Denholm then advised the officer that the officer should know if the complainant is illegal or not and futher inquired whether the complainant had a driver's license.  The officer advised Denholm that the complainant had a "Mexican Consulate ID card."  Denholm then stated that he would not touch that case since the complainant is "illegal" and declined any charges.

Now, anyone who reads this blog knows of my opinion that John Denholm has been an unethical idiot and suck up.  He once filed a grievance with the State Bar because I did a negative blog post about the ludicrous warrant that he and (now Chief Investigator) Steve Clappart drafted in their defense of David Temple.  That being said, I knew that Denholm was stupid when he tried to draft a Capital Murder warrant against an innocent kid, but I never knew he would be so dumb as to do something like deny charges on someone because they were potentially in the country illegally.

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

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

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

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

The Mad Queen

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

The move is surprising for a couple of reasons.

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

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

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

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

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

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

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

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

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

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

Death, Defenses, Decisions, and Denny's

Like most of you who read this blog, I have seen the video of Terry Thompson choking John Hernandez to death on the floor of a Denny's restaurant, and like you, I had some pretty immediate reactions to it.  My gut reaction was that this was a disproportionate response to an incident that allegedly started with Thompson being offended by Hernandez urinating in public.  It also seemed to me that the Thompson was continuing to choke out Hernandez long past the time that Hernandez was a threat to him.

It also seemed to me that at least two other people in the video were assisting Thompson in what he was doing by trying to stop the video recording of what was happening.

As in most murder cases (or any criminal cases, for that matter), a brief video doesn't always tell the full story of an incident, and I'm completely open to the possibility that there are a multitude of facts that the general public may not be privy to.  That being said, however, the video, coupled with the Medical Examiner's ruling that Hernandez's death was a homicide, sure do make a fairly compelling argument that probable cause exists to believe a crime was committed.

Now, let's be clear.  A ruling of homicide from a Medical Examiner does not automatically mean that a Murder has been committed.  "Homicide" is not a legal term.  There are plenty of homicides that are quite legal under the laws of the Texas.  For example, whenever the State of Texas executes a condemned inmate, whoever initiates the lethal injection is committing a homicide.  It isn't a murder (under the law) because the State of Texas has ordered that it happen.  (NOTE:  Yes, I know that death penalty opponents will argue that it IS murder, but this post isn't a death penalty argument.  I'm trying to give an example.

When the Medical Examiner's Office gives a ruling on the cause of death, they can choose Homicide, Suicide, Accident, Natural Causes, or Undetermined.  Those are medical findings, not legal ones.

Murder cases are, more often than not, somewhat complicated.  Although some facts surrounding them may be immediately apparent (or caught on video, as the case may be), there is usually a tremendous amount of follow up investigation that needs to be done.  Witnesses interviewed, evidence analyzed, toxicology done, for example.

Officers, however, make arrests on murder charges every day, long before the investigation is complete -- they just have to have probable cause to believe that a murder.  The suspect can be arrested and the investigation can continue.  In all honesty, the investigation almost always continues to develop after the person is arrested in a murder case.

Sometimes, there are some pretty obvious defenses to murder, even when the person who caused the homicide is readily identifiable.  Self-defense, Defense of a Third Party, and even Defense of Property (in Texas) can be considered as legal defenses to a Murder charge.  Under strict legal theory, however, defenses don't technically have anything to do with whether or not there is probable cause to believe a murder was committed.  In a vacuum, if a person is believed to have committed a murder, they are charged, and the defenses are to be raised later.

Fortunately, that's not the real world.  When prosecutors get a call from a homicide cop who has a murder charge that might have some legitimate defenses, it is standard practice to hold off on filing murder charges.  Those cases are generally presented to a Grand Jury for them to determine whether or not they wish to file murder charges.  Although the job of the Grand Jury is (in theory) to simply determine whether probable cause exists to indict someone, in the real world, they routinely hear self-defense claims before making the decision of whether or not they want to do so.

In Harris County, those cases are called "Direct to Grand Jury" cases, meaning they are going to the Grand Jury without the accused being formally charged ahead of time.   If the Grand Jury elects to No Bill (not indict) the case, the suspect is never charged with a crime.  If the Grand Jury does indict, a murder warrant issues because of that indictment.

Yesterday, the Harris County District Attorney's Office announced that the case of Terry Thompson and John Hernandez was going to be presented as a "Direct to Grand Jury" case.  That was mildly surprising to me, after having watched the video, but, like I said, I'm completely open to the idea that there is more to the story than what's been told to the public.

What I did find extremely surprising, however, was today's announcement from Harris County District Attorney First Assistant Tom Berg that the case was going to be presented to the Grand Jury this week.

To refresh your memory, the altercation between Thompson and Hernandez happened on May 28th. Hernandez died from his injuries from the altercation three days later.  As of this writing, that means that this case is less than two weeks old, and they are already talking about taking it to the Grand Jury by Friday.

To me, that doesn't make a lot of sense.

Cases that are presented directly to Grand Jury are usually complicated ones.  They often take weeks and weeks, if not months and months, to investigate before a presentation is made.  The idea that there wasn't sufficient evidence to file charges on Thompson last week but there is enough for a full Grand Jury presentation this week doesn't really compute.  The skeptical side me thinks that there is more in play here.

But then again, that extremely damning video just came out a day or two ago, and that might have spurred some folks at the D.A.'s Office into some faster action.

As I was leaving the CJC, today around noonish, there was a big protest getting ready to start by citizens outraged that Thompson hadn't been charged yet.  Protests at the courthouse are pretty commonplace, but they had shut down all of Franklin Street, in front of the CJC for this one, and a large amount of D.A. Investigators were out in full force for extra security.

To his credit, First Assistant Berg waded out into the middle of all the hoopla and gave a statement (in both English and Spanish) that the case was being handled and that the Office extended its sympathy to the family of John Hernandez.  I like Tom Berg and I respect him.  I have even greater admiration for him for wading out into a hostile audience to speak.  That took balls of steel, quite frankly.

But Tom doesn't have the best poker face and neither does the Office.  The message that he was broadcasting between the lines seemed to indicate that the crowd would be quite satisfied if they just gave the D.A.'s Office a couple of days.

My prediction is that Mr. Thompson will be finding himself indicted either tomorrow or Friday.  There's no way that the Office would rush a case through Grand Jury to expedite a hugely unpopular decision.  The only question I have is "why didn't they just file the charges in the first place?"

Maybe the damning video didn't come out until after they had made the decision to take the case to Grand Jury.  Maybe they were waiting on the official autopsy results.

My gut instinct tells me, however, that the real reason is the fact that Thompson is married to a Harris County Sheriff's Deputy (who was right there next to her husband during the choking incident) bought him something that most murder suspects don't get -- the benefit of the doubt.

I don't begrudge him that.  I'd just like to see it more equally applied in the future.

Good Additions to the Ogg Administration

The Ogg Administration has continued to make some positive additions in the personnel department over the past two weeks.

On January 11th, Ogg announced that retired-178th District Court Judge David Mendoza was joining the Administration as the head of the newly created Office of Professional Integrity.  As regular readers of this blog know, I'm a big fan of Judge Mendoza.  Although he had previously been a judge, I had never met him before he won the 178th bench in 2008.  I quickly developed a strong respect for him after appearing before him in his court.

Judge Mendoza is a quiet and thoughtful man who will be a tremendous asset to the Office in the days to come.  I'm glad to see that he'll remain a regular in the CJC as well.

Today, the Office announced two other solid additions to the CJC team with the addition of veteran defense attorney (and actual veteran) Tom Berg. As noted in Ogg's e-mail to the staff, Tom is a defense attorney and former Federal Public Defender, as well a retired colonel in the United States Army reserve.  He is joining the office as "First Assistant over the Trial, Appellate, and Special Crimes Bureaus."

Based on the specific title, I'm not certain if this means he will be the First Assistant in the same role that previous First Assistants have held.  Either way, he's a good choice.  He is highly respected by his peers and he is passionate about the Criminal Justice System.  He's also an experienced leader who will do well with the troops.

The other addition is Ruben Perez, a former Harris County and Federal prosecutor.  I don't know Ruben personally, but we seem to have a lot of friends in common.  Everything I've heard about him has been extremely positive.  His resume is impressive.  He is a 25 year veteran with the Feds who headed Human Trafficking, Civil Rights, and the Organized Crime Drug Enforcement Task Force.

He is taking over as head of Special Crimes and his resume seems to indicate that this will be a great match for him.

As I've written before, the personnel choices made by Ogg thus far are actually pretty strong (with three notable exceptions).  Hopefully the Office continues in this positive trajectory.