Tuesday, February 9, 2021

Kirby Taylor



The Harris County Criminal Justice world was heartbroken to learn of the unexpected passing of longtime defense attorney Kirby Taylor this week.  

Most of us have known Kirby since starting our careers in the CJC world.  I remember meeting him as a baby prosecutor back in 1999.  To use the term "universally beloved" would be a very appropriate way to describe this dear, sweet man.  He was kind and friendly to all and everyone that I know found him to be one of the most endearing people at the courthouse.

He was a lawyer who handled the most serious of cases with compassion coupled with common sense.  He fought hard for his clients with credibility and honesty that worked well for him in his practice.

If you ever met Kirby, you doubtlessly knew of his trademark "crazy socks" that became his calling card.  Regardless of whether he was wearing a three-piece suit or casual clothes, he was guaranteed to be wearing socks that could potentially zap your retinas.  He also carried with him the largest wallet I've ever seen in my entire life.  It wasn't filled with money (he once showed me) but with receipts, notes, cards, and other things.  It resembled a large rock and was held together with rubber bands.

Several years ago, he and his son were the victims of a horrific act of violence that left Kirby both physically and emotionally scarred for life.  If there was anything positive that came from that tragedy, it was the opportunity for our CJC community to let Kirby know how much we all loved him and hurt for him.  He came back from that tragedy and returned to the courthouse.  He was the same sweet man that he had always been, but there was a sadness with him that never left.

He still smiled and laughed that distinctive laugh of his, but it was different.  It was impossible to see him without feeling somewhat emotional about what he had suffered through.

It goes without saying that all of us will miss Kirby Taylor.  He was definitely a giant (both physically and metaphorically) of the CJC.  I'll miss his laugh and his smile, but most of all, I will miss the kindness that he showed to everyone he met on a daily basis.

It has been suggested to me that maybe we wear our craziest socks in honor of Kirby.  So, this Friday, wear them if you got them.  Kirby would have gotten a good laugh at that.  

Rest in Peace, Old Friend.


Tuesday, February 2, 2021

The Perils of Zooming

 Since I felt it was appropriate to make my critiques and observations about others' Zoom behavior in this post last May, I felt it would only be fair to tell on myself for something that happened this morning . . . 

If you are reading this blog and don't know me personally, then you may or may not have picked up on the fact that I like to mess with people.  99% of the time, the people that I harass or tease are my friends and it is all good-natured.  I was known for pulling practical jokes when I was a prosecutor and I still like to do them when the opportunity presents itself.

Because of this, I am keenly aware of the fact that I have a very large target on my back for retaliation at any given moment.  It's kind of like surfing on a giant wave, and knowing that you are eventually going to wipe out at some point.  I strive on a daily basis to avoid giving some of my more frequent targets any ammunition to get back at me.  Some days, I'm more successful than others.  

As per usual, for New Year's this year, I decided to try to lose some weight and get into something that could loosely be described as being in shape.  I keep hearing about the "Dad Bod," and have decided that I would be lucky to get to that point with some effort.  I'm pushing 50 years old, so I'm trying to manage my expectations.

I bought a Peloton last year and I've got some free weights in the playroom/home office.  I quit drinking beer at the house and I'm trying to lay off the desserts.  I made it through the first month of the year okay.  None of it is very pretty to watch, and I will not be joining the ranks of people posting "gym photos" to document their exercise progress.  

This morning, I'm working from home with a couple of courts that I need to appear in via Zoom.  My first stop was in the 182nd, where I had a brief conference with Judge Lacayo and the prosecutors before resetting the case.  I texted the prosecutor I was working with for my next case of the day and she said that she needed about five minutes before logging on in the next court.

So, I decided to do a couple of reps with the free weights.  

To be clear, this is not a pretty picture.  The weight isn't particularly much.  My form is probably terrible.  I'm overweight.  The overall picture is not good.  

But dammit, I'm working on it.

I go hit my weights and struggle through a quick set before docket.  I then set the weights down and start to go back my computer . . .

. . . and that's when I see the little green light that indicates my computer's video was on.

My heart rate goes up.  I wasn't sweating before, but I'm starting to now.  

I had opened up the District Clerk's website to look up a reset date for another client, but that wouldn't have slowed down the camera from working.

I was faced with the terrifying idea that I had not completely logged out of the 182nd Zoom Courtroom and just performed my very sad efforts at exercising in front of Judge Lacayo and staff, Casey Little, Missy Wheeler, and all the defendants logged in for courts this morning.

Y'all, I thought I was going to throw up.  Seriously.  I thought my day of reckoning for all of the practical jokes and smart ass comments had finally come to pass.

I rushed back to my computer -- for some reason, moving to the side in an attempt to be off-camera as if the damage wasn't already done -- and closed the clerk's website.  

I was expecting to see the entirety of the 182nd courtroom staring back at me.

But, fortunately, I live to fight my practical joke war with humanity for another day.  I had apparently opened Facetime on my computer at some point, but mercifully, had not actually called somebody.  My ugly exercise routine had remained private.

I was fully prepared to fake my death and move to another country, otherwise.  

Friday, January 29, 2021

The Civil-Prosecutorial Alliance

Although it has been almost twenty years, I still vividly remember the first intoxication manslaughter case that I handled as a prosecutor.

Like most cases of that nature, it was heartbreaking.  More heartbreaking than most, actually.  The victim was a young student at Rice University.  She and three of her friends had gone to her parents' house to eat dinner before going to get ice cream at Amy's Ice Cream at Shepherd & Highway 59.  When they were finished with their dessert, they headed back towards their dorm on campus.  It couldn't have been a more innocent evening for a group of college students.

Traveling down Bissonnet at over 70 miles per hour was the highly intoxicated defendant in a large-sized pick-up truck.  He'd been drinking all day and had reached the point where he had no inhibitions about how recklessly he drove.  As he approached the intersection with Durham, there was a red light, and a car stopped in the lane ahead of him.  Not to be slowed down, he swerved around the stopped vehicle, moving into the turn lane so that he could just keep on speeding down Bissonnet.  

The car full of Rice students proceeded into the intersection because they had the green light.  The defendant's truck t-boned their small car at well over 70 miles per hour.  The students' car was flung like a toy across a neighboring parking lot, coming to rest against the concrete steps leading into a small bookstore.  The young lady driving, who only an hour earlier had told her parents that she was going for ice cream before going back to the dorm as she said goodbye to them for the last time, was killed instantly.  The other three passengers were badly injured but ultimately survived.

While the case was pending trial, I got to know her parents. They were wonderful people.  Their daughter was their only child and they were understandably and irreparably devasted by her loss.  

At least one of the surviving passengers initiated a civil lawsuit against the Defendant.  One day, the civil attorney for the survivor showed up at the Office unannounced and subsequently told me that she was there to review my evidence in the case.

And although my heart and spirit were definitely aligned with her motivations, I had to tell her no.

And it was a very firm "No."

It wasn't just the fact that sharing evidence with a civil lawyer was against office policy at the time (although it was).  There was just something unseemly about it.  No matter how noble the civil lawyer's motivations were or how noble mine were, one did not need to be sullied by the other.  My goal was to put the man who had killed one innocent girl and injured three others in prison.  It wasn't to seek money from him, regardless of how much he should be paying out for the lives he destroyed.

Ultimately, a jury sentenced him to twelve years in prison.  He served his time.  I have no idea what became of the civil suit.  I wasn't supposed to know.  The purpose of my role as an Assistant District Attorney was different and it wasn't affected by monetary motivations.

I'm reminded of that case because of the apparent alliance that has developed between Harris County District Attorney Kim Ogg and private civil attorney Michael Doyle over the pendency of charges stemming from the infamous botched Harding Street raid that led to the deaths of Rhogena Nicholas and Dennis Tuttle.

For those of you following along at home, Michael Doyle is a prominent Houston civil attorney, and apparently a supporter and/or friend of Kim Ogg.  I have no idea what their initial tie to each other was.  Perhaps it stems from Ogg's days as a civil lawyer with her father, where some of her "ethics" decisions were every bit as questionable as they are now.  

As I wrote in my previous post on the ill-fated Arkema case, when the District Attorney's Office bit off more than it could chew by filing a huge environmental case against a chemical company, it quickly became apparent they needed some serious help.  Like a knight in shining armor, Michael Doyle suddenly and inexplicably stepped in to try it pro bono.   For those of you who aren't familiar with the business side of running a law firm and what his involvement entailed, suffice it to say that he donated hundreds of thousands (if not more) dollars worth of his (and his firm's) time and effort into trying a case for free.

That's a huge gift to us taxpaying citizens of Harris County, in theory, but it really begs the question as to "why on earth would he do something like that?"  Spending that much time and effort on being a special prosecutor on a case as complex (and yet still weak) as Arkema is what could be called a "firm killer."  A lawyer could potentially drive his firm into bankruptcy while working on such a large pro bono case.  I honestly don't know the answer to this question, but what's in it for Doyle?  If his volunteerism was really so magnanimous, Harris County should be honoring him with a parade or something -- despite how poorly the trial ultimately turned out for him and Ogg.

While the Arkema case was still pending, the disastrous raid on Harding Street occurred.  Within days of the raid, a prominent civil attorney suddenly appeared like a knight in shining armor to handle the wrongful death civil cases against those responsible for the debacle.  Coincidentally (or maybe not), that attorney was Michael Doyle.

I look at the facts surrounding the deaths of Tuttle and Nicholas as akin to the intoxication manslaughter case I tried.  It is heartbreaking.  It is not a case that lends itself to inspiring people to want to look at "both sides of the story."  Something terrible happened -- a terrible injustice -- and the vast majority of those who know about the case will more than likely feel impassioned that accountability should be swift and harsh.  While the intoxication manslaughter case could be the poster child for harsh punishment against drunk driving, the Harding Street case could be the poster child for harsh punishment against police abuses.

The Harris County District Attorney's Office has been on a charging spree for all things Houston Police Department in the wake of the Harding Street Raid.  It goes past the events of that day two years ago.  Deep dives have been made into payroll irregularities and any other misdeeds possibly attributed to HPD Narcotics.  Again, there is nothing wrong with looking into abuses of power, but one has to wonder what the driving factor truly is.  From a legal standpoint, it seems that Ogg's indictments are designed to show that Harding Street was merely an example of a systemic problem that was known about and condoned by the City of Houston Police Department.  That sure could be helpful in a civil suit against the City of Houston as illustrating that the City as a whole should be liable for what happened.  It would serve as strong evidence that Harding Street was the fault of more people than just one rogue cop.

To be clear, my issue here is not that Kim Ogg is aggressively investigating and/or prosecuting the officers involved in the Harding Street raid.  Of course, she should do that and would be grossly remiss if she did not.  I also don't fault Michael Doyle for aggressively pursuing a civil suit against those same officers.  He should absolutely do so on behalf of his clients.  However, the scope, as well as the timing of many of Ogg's charges have given a very strong appearance that they are designed to assist (and work in conjunction with) Doyle's lawsuits.

In my opinion, the civil cases and the State's prosecutions should function as two parallel lines that never cross.  To cross those lines creates an appearance of impropriety that has no reason to exist and it damages the strength of those cases.  It also creates a very slippery slope for the future.

As agents of the State of Texas, prosecutors with a District Attorney's Office have significantly more power than a civil lawyer.  They have access to databases that only law enforcement is entitled to.  They can compel testimony in Grand Juries.  They can expedite personnel records from law enforcement officers, hospitals, and a whole host of other entities with an ease that no civil attorney would experience.  They can subpoena things as part of an investigation prior to a case being filed, even if it is just exploratory.

If Doyle has a direct pipeline of discovery coming from the investigations that Ogg has come up with, he's doing pretty well for himself and his clients.  That's what the attorney on my case wanted from me so many years ago, and that was something that I wasn't going to give.  I could cheer the attorney on and root for a bazillion dollar verdict for the victims, but I could not offer my assistance.  That was a parallel line that I would not and could not cross.

The most powerful tool that a prosecutor has that a civil attorney does not, however, is the ability to charge someone with a crime.  I don't practice civil law so I can't speak to all of the advantages of having someone you are suing charged with a crime, but here are some that seem self-evident.  In addition to all of those discovery tools available mentioned above, a criminal case can often get to trial quite a bit faster than a civil case in most (non-pandemic era) instances.  There can also be Grand Jury testimony, the leverage of incarceration, and just the general stigma of being charged with a crime.  

Last week, several people noted that the statute of limitation to file lawsuits related to the Harding Street raid would run this week.  As a matter of fact, today is the two year anniversary of the shooting.  Some really smart people believed that District Attorney Ogg would fire off another round of indictments just under the wire to help bolster Doyle's lawsuit. (NOTE:  Kim Ogg has tweeted something on January 23rd about holding people accountable for Harding Street.  She apparently deleted it after I responded with this tweet.  I did not realize she had deleted it until I was writing this post.)


Sure enough, Ogg issued a round of new indictments on January 25th and like clockwork, Doyle filed lawsuits -- just under the wire before the statute of limitations ran.  For good measure, Ogg also dissolved her own Major Narcotics Unit within the D.A.'s Office.  What amazing timing!

As I acknowledged above, given the heartbreaking and extreme circumstances of Harding Street, I realize that the general response to the Doyle/Ogg relationship may be an overwhelming "so what?"  The unseemly actions of this particular Civil-Prosecutorial Alliance pale in comparision to the misdeeds of HPD Narcotics.  I can understand that reaction.  I really can.  

But in the instance of the Harding Street Raid, it is all so uneccesary.  The facts of that day are dark, disturbing, and perfectly capable of standing on their own merits in both the civil and criminal arenas.  The parallel lines of those jurisdictions did not need to be crossed.  In creating this alliance, Ogg has opened the door to attacks that many of her prosecutions related to the case are "politically motivated."  I can assure you that is what the defense attorneys for all of the officers involved in these prosecutions are loudly pointing out to the Courts.

And as I mentioned before, it is such a slippery slope to begin down.  

What if the next case isn't as egregious as Harding Street?  What if the District Attorney's Office decides to do a favor for a civil lawyer on a less compelling case?  What if the next case isn't quite so clear cut?  What if it's a neighbor dispute where the right civil attorney has the ear of the elected D.A. and can maybe get some charges filed?  What if it's a fatal traffic accident that would be stronger with some manslaughter charges?  What if you can get theft charges in a civil dispute?

It is a dangerous pathway to follow.

Tuesday, December 15, 2020

Episode Six: Return of the Jury -- A One-Act Sci-Fi Play

SCENE:  It is only minutes until midnight on December 31, 2020, and Droids are busily signing off on paperwork on STAR DESTROYER INTAKE under the supervision of CORPORAL LEITNER.  The space hatch doors open and in comes the ADVANCE TEAM led by a beleaguered CO-VICE-ADMIRAL MITCHAM.  LEITNER salutes MITCHAM.

CORPORAL LEITNER:  Vice-Admiral, you're . . . early.

CO-VICE-ADMIRAL MITCHAM:  I decided it would be wise to arrive prior to the Empress to make sure everything was running smoothly.  We cannot afford another embarrassment in front of her.  She's fired so many that we hardly have anyone left.

CORPORAL LEITNER:  Very good, sir.

CO-VICE-ADMIRAL MITCHAM:  What are all of these droids doing?

CORPORAL LEITNER:  They are signing Probable Cause complaints, sir.

CO-VICE-ADMIRAL MITCHAM:  What?!  Didn't the Texas Court of Criminal Appeals just rule that was illegal?

CORPORAL LEITNER:  Yes sir, but we've appealed it to the Louisiana Supreme Court.

CO-VICE-ADMIRAL MITCHAM: What?  Why?  Why would you ask one state to intervene in another state's business?

CORPORAL LEITNER:  Empress Ogg called it "the Ken Paxton Doctrine" and it should work fine.

CO-VICE-ADMIRAL MITCHAM:  I'm going to need the Intake Droids to stop signing those complaints until we have a ruling on that.

CORPORAL LEITNER:  You heard the Co-Vice-Admiral.  Stop signing.  You may go back to watching CNN on your computers.

THE INTAKE DROIDS ALL DROP THEIR PENS IN UNISON AND TURN ON THEIR COMPUTER MONITORS.  THE NEWS BROADCASTS OVER ONE OF THE SPEAKERS.

COMPUTER:  Next, on CNN . . . he was once a respected member of law enforcement before he destroyed his own reputation by selling his integrity to a group of extremists and an authoritarian despot.  Now, he suddenly finds himself out of a job . . . 

CO-VICE-ADMIRAL MITCHAM:  Why is CNN doing a story on Steve Clappart?

COMPUTER:  . . . Coming up, our story on former Attorney General William Barr.

CO-VICE-ADMIRAL MITCHAM:  Oops.  My bad.

THE SPACE HATCH OPENS AND JAR JAR ROGERS AND CAD DANE COME ABOARD.

JAR JAR ROGERS:  Mooey mooey, it's the mostest bestest time of the year!  Empress Ogg is being sworn in for another four years!

CORPORAL LEITNER:  You don't get out much, do you, Jar Jar?

CAD DANE:  We need everyone working hard when Empress arrives.  There will be photo opportunities while the Empress is being sworn in.  Then, to show that she's an Empress of the People, she will answer some calls at intake and take some questions from the media.  

JAR JAR ROGERS:  Mooey mooey, I hope they send IG-88 Oberg!  He's mooey mooey tall!

THE SPACE HATCH OPENS AND EMPRESS KIM OGG ENTERS, FOLLOWED BY CO-VICE ADMIRAL KING.  THEY GREET CO-VICE ADMIRAL MITCHAM AND CORPORAL LEITNER.

EMPRESS OGG:  Greetings!  Greetings on this glorious day!  I hope you are all as happy to be here as I am!

CO-VICE ADMIRAL KING:  Happy New Year, Jim & New Tom Berg.

VICE-ADMIRAL MITCHAM:  Vivian, what brings you up here on New Year's Eve?

CO-VICE ADMIRAL KING:  I'm second in command now.  I've got to get sworn in.

CO-VICE ADMIRAL MITCHAM:  I believe the office flow chart makes us both second in command.

CO-VICE ADMIRAL KING:  That's the old flow chart, NTB.  I got an upgrade in title.  Now, I'm CO-Vice Admiral And Director King.

JAR JAR:  That's a mooey long title!

CO-VICE ADMIRAL AND DIRECTOR KING:  Yes, it is, Jar Jar.  That is why I will be shortening it to an acronym.  From now on, everyone will refer to me as COVAD King.

CO-VICE ADMIRAL MITCHAM:  Um, you sure you want to go with that acronym?

COVAD KING:  Shut up, New Tom Berg.  Nobody asked you.  You're just a vice principal.

CO-VICE ADMIRAL MITCHAM:  Vice Admiral.

COVAD KING:  You don't know me.  I'm Board Certified in Criminal Law.

CO-VICE ADMIRAL MITCHAM:  And I thought that I had heard you had put in an application to be the new U.S. Attorney for the Southern District.

COVAD KING:  So what?  So did the Empress.

EMPRESS OGG:  No I didn't!

CAD BANE:  Again, Empress, if you would please put your hand behind your back when crossing your fingers . . . 

CO-VICE ADMIRAL MITCHAM:  Well, this seems awkward.

EMPRESS OGG:  Enough!  Today is a celebration.  Let's not have petty infighting.  I have won a hard-fought battle against a strong opponent, but the electorate sent a clear message that they loved them some Kimbra!

CO-VICE ADMIRAL MITCHAM:  Well, to be fair, there was some pretty strong anti-Trump backlash that led to literally all Democratic candidates winning in Harris County elections.

EMPRESS OGG:  Silence!!!!  Not even you with your clinical accuracy will bring me down on this day, David.  Let's get down to business.  Somebody swear me in!

COVAD KING:  I'll do it.  Do you, Empress Kimbra Ogg, first of her name, hereby solemnly swear to uphold the Constitution and Laws of the United States, as well as the Constitution and Laws of the State of Texas, so help you God?

EMPRESS OGG:  You betcha.

CAD DANE:  Empress, could you please put your hand behind your back, I'm afraid your crossed fingers might be in the photos.

EMPRESS OGG:  My bad.  Now, do we have any questions from the media?

EVERYONE LOOKS AROUND AWKWARDLY.

CAD DANE:  Um, I think all of the media is probably covering New Year's Eve festivities.

JAR JAR:  Meesa don't think so.  All deesa activities is closed because of da Covid.

CAD DANE:  Would you shut up, you idiot?  Empress, I will write up a summary for a press release for this glorious day!

EMPRESS OGG:  Oh, I would love that, Cad Dane.  I do love your publication that you send me!  It's so wonderful to read members of the press confirming what a great job I'm doing!  Tell me the name of it again!  The Onion?

CO-VICE ADMIRAL MITCHAM (TO DANE):  I thought it was called The Informal.  

CAD DANE:  The Informal has too much bad news about her.  I always send her The Onion.  She thinks it's real.  Keeps her happy.

EMPRESS OGG:  Are there any questions, Cad Dane?

CAD DANE: Um, sure.  Empress Ogg, you've done such an amazing job during your first term as you've been solving Houston's crime problem by indicting Gerald Goines 57 times, all the while working on your own version of the COVID vaccine.  What do you see as your biggest challenge for your second term?

EMPRESS OGG:  What a lovely question!  Well, Cad Dane, obviously the pandemic has had a tremendous effect on the criminal justice system in Harris County, and it has created a backlog of cases.  Backlogs lead to delays, and we ALL know how much defense attorneys love delays.  It gives them more time to tamper with and sometimes murder witnesses against their clients.

CORPORAL LEITNER:  Did she say "murder?"

CO-VICE ADMIRAL MITCHAM: Shhhhh.

THE INTAKE PHONE RINGS AND EMPRESS OGG ANSWERS ON SPEAKERPHONE.

EMPRESS OGG:  You've reached Empress Ogg's District Attorney's Office Intake, brought to you courtesy of Empress Ogg.  You're on the phone with Empress Ogg.

OFFICER ON PHONE:  Um, yeah.  I pulled over a vehicle for speeding, made contact with the driver.  There was an odor of alcohol so I ---

EMPRESS OGG:  Say no more, officer, I accept the charges.  And you may put "Ogg" as the accepting DA.  That's O-G, as in "that Kimbra is an O.G.," with an extra G at the end, because one just isn't enough.

OFFICER ON PHONE:  Did you want to hear the details of the field sobriety tests, ma'am?

EMPRESS OGG:  No need.  I'm 100% certain that it is an extremely strong case and I give you my word that no one in my office will never ever dismiss it under any circumstances.

EMPRESS OGG (TO CAD DANE):  Anyway, as I continue to work on a vaccine, that I like to call "A Little Shot of Kimbra," I have been in daily phone calls with Pfizer, because they want help with their vaccine as well.  In the meantime, the Death Star is becoming overcrowded with more and more prisoners.  Something needs to be done to alleviate the pressure and overcrowding.  We need to move more cases out, but these delay-loving defense attorneys just don't want to play ball.

THE INTAKE PHONE RINGS AGAIN AND OGG ANSWERS.

OFFICER ON THE PHONE:  Yeah, this is Officer --

EMPRESS OGG:  No time to talk.  I accept charges.  The name is Ogg.  O.G. with another G at the end.  Bye, now.

EMPRESS OGG (TO CAD DANE):  As I was saying, there has to be something to stop the massive build-up of incarcerated prisoners in the Death Star, but the Defense Bar just doesn't want that.  This is all their fault.  I'm currently trying to encourage judges to hold trials where the jury can just take our prosecutors' word for what the witnesses would say if they were there.  This alleviates any concerns about social distancing and can speed up getting cases tried.

CO-VICE ADMIRAL MITCHAM:  Um, Empress Ogg, that would violate the Confrontation Clause.

EMPRESS OGG:  The what, now?

CO-VICE ADMIRAL MITCHAM:  Remember how you swore to uphold the Constitution a few minutes ago?

EMPRESS OGG:  Good God, David.  You act like you've never seen crossed fingers before.

THE INTAKE PHONE RINGS AGAIN AND OGG ANSWERS.

EMPRESS OGG:  I accept charges.  Name's Ogg. O to the double G.  Bye, now.

CORPORAL LEITNER:  He didn't even tell you what he was calling about, Empress.

EMPRESS OGG:  Very funny, Jimbo.  I've seen the charges that have been coming out of intake this year.  Are you really trying to insinuate that YOU are doing much more than that?

CO-VICE ADMIRAL MITCHAM:  She does have a point . . . 

EMPRESS OGG:  So anyway, Cad Dane, I look forward to reading your write up.  I look forward to everyone knowing that I'm the most Progressive, Law & Order, Rehabilitative, Lock 'Em Up, anti-Police, pro-Police, Bond Reforming, Bond Revoking Prosecutor that this county has ever seen!  IG-88 Oberg will be sorry that he missed being here tonight!  These next four years are going to just fly by.


SEE PREVIOUSLY:

Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Episode Five: The Empress Strikes Out 

Sunday, December 13, 2020

Learning the Difference

When I'm explaining the plea bargain process to my clients, I compare it to someone selling a car.  The prosecutor's position is like that of the car owner, and the strengths and weaknesses of the case are akin to the value of the vehicle.  Maybe the car is flawless and in perfect running condition.  Maybe it is a complete lemon.  The same can be said for a case -- although I've seen many more lemons than flawless cases in my time.

But in both scenarios, it is the car owner/prosecutor who is completely in charge of setting the negotiating price.  If the car/case is flawless and powerful, the buyer/defendant can expect high prices with less flexibility.  If, however, the car or the case is not particularly powerful and has engine problems, one might expect that price to be drastically reduced, or for the car to be totally tossed on the scrap pile.

Whether the case is flawless or an utter disaster, one thing remains the same:  the prosecutor has the sole discretion to set the asking price, and the defense attorney and his or her client is powerless to force them to lower or change it.  We can either accept the deal or walk away from the bargaining table and set it for trial.  

It's just that simple.  It always has been and it always will be.

Much like the auto industry, there are good times and there are bad times.  Hurricanes that destroy fragile and poorly built courthouses may inspire a fire sale on cases to help move inventory, for instance.  Non-violent offenders charged with low-level crimes may find themselves receiving plea bargain offers that are significantly more generous than they might receive under normal conditions.  In some cases, a prosecutor may decide that a contested issue on a motion is probably going to go the defendant's way and just agree to it, rather than go to a full hearing.  

It's just the practical thing to do and prosecutors generally understand that, as do defense attorneys, their clients, and judges.  Otherwise, a total backlog would be expected, wouldn't it?  

As this year has proven, unfortunately, a measly hurricane is nothing compared to a global pandemic when it comes to wreaking havoc on the criminal justice system.   In the twenty-one years since I've been practicing criminal law in Harris County, I've seen Tropical Storm Allison and Hurricanes Ike and Harvey deliver devastating blows to the system, including closing the CJC down for months and months.  Each time, the System found some way to adapt and get back up and running in some form or fashion within a month or two.

The effect of the pandemic on the criminal justice system across the country has made hurricanes and other natural disasters seem like a light sprinkle.  With only a handful of exceptions, all jury trials have ceased since March.  

Take a moment to fully appreciate that.  

In Harris County, Texas, jury trials have come to an (almost) complete stop for nine months and counting in 22 Felony District Courts and 16 County Courts at Law.  Hundreds of cases set for trial have been pushed back to a date that has yet to realistically be determined.  In the meantime, all the cases that would have been set for trial since March have been pushed back with faraway trial settings, all lined up behind those cases that were supposed to have been tried this year.  And while those cases were getting set for trial, new cases have come in every single hour of every single day since then.

The full extent of the backlog is almost impossible to comprehend because no one really has any idea of when things are going to return to any semblance of normal.  Sure, you may have a trial court here and there availing itself of the ill-conceived NRG Arena Jury Plan, but those trials have been few and far between, making no dent in the pile-up of cases that Harris County is now experiencing.

The System is collapsing under its own weight.

At the risk of sounding like I'm blowing smoke up the Judiciary's robes, the judges of Harris County, for the most part, have done all they can to keep things moving.  Although they are routinely blasted for the low (or PR) bonds that they've handed out during this crisis, the judges I've been in front of have worked hard to balance public safety with the Constitutional rights provided to Defendants.  They have made judgment calls on those to release on bond and those who need to stay where they are.  Some of those calls have been wrong and have drawn the criticism of many.  That's unavoidable, and in most instances, the criticisms are unfair.  Too many cases are coming in and not enough are being disposed of.  There simply isn't enough room to keep all the people locked up that the critics would like to see locked up.

But one of the byproducts of so many defendants being out on bond is that they have almost no incentive to enter into a plea bargain -- especially if that plea bargain offer involves further incarceration.  

It's a hell of a conundrum if you're a prosecutor.  A prosecutor may be evaluating a case where a defendant has a lengthy criminal history that includes a trip or two (or more) to the Texas Department of Criminal Justice-Institutional Division.  They may have a difficult time bringing themselves to make a plea bargain that doesn't involve another trip to TDCJ.  

Under normal circumstances, that would be fairly easy to resolve.  Hypothetically, let's say that a defendant is facing a punishment range of 25 years to Life on a case because of his or her prior criminal history.  They are sitting in the Harris County Jail, not bonding out and the prosecutor offers them five or ten years. 

Assuming the case-in-chief is strong against the Defendant, that would actually be a bargain.

However, if you are out on bond, enjoying your freedom, the idea of checking back into TDCJ for a 5 or 10 spot probably doesn't sound like much fun, does it?  As a matter of fact, if you are a defendant who is out on bond, there really isn't much incentive to take that offer at all, is there?  Especially if the alternative is setting the case for trial on a date that is to be determined so far down the road that your trial prosecutor might currently still be in law school.

In short, if a defendant is out on bond for his or her case, it's his or her market when it comes to deciding whether or not a plea offer from a prosecutor is worth taking.

Under those circumstances, one might think that the prosecutors would come to the realization that it is time to entirely rethink the plea bargaining process.  Given the breadth and scope of COVID and the current backlog of jury trials, that should be motivating prosecutors to offer deals that make Hurricane Plea Bargains seem Draconian.  

Let's pause real quickly here before my friend Joe Gamaldi's head explodes at what I'm saying.

As I've mentioned several times on this blog, I consider the most profound moment of my legal career to have come during a PSI hearing in front of Judge Caprice Cosper.  It was a tragic case I was trying against my friend Sam Cammack where a couple had left their children unattended for an hour because their work shifts overlapped.  A fire broke out and an infant died.  The pictures were horrifying.  I wanted pen time.  Sam, very eloquently, argued for probation.

As Judge Cosper gave probation, she sternly told me, "Mr. Newman, in this business there are those whom we are scared of and those that we are mad at.  It would behoove you to learn the difference."

I bring that story up now, because it couldn't be a more relevant guide than in this moment.

Under pandemic conditions, prosecutors have got to realize that it is time to focus resources on those offenders that we are actually scared of, and set aside our moral indignation towards scofflaws for the time being.  

Sadly, that hasn't been the case in Harris County.

As newly re-elected District Attorney, Kim Ogg is still experiencing her identity crisis between the world's most progressive prosecutor or the tough-on-crime prosecutor.  The result has been prosecutors fearful of offering a controversial plea bargain that might make Kim Ogg look bad and subsequently incur her wrath.  Keep in mind, all personnel must have their contracts renewed going into Ogg's second term and nobody wants to lose their jobs.  Many prosecutors are making their recommendations as if Wayne Dolcefino was sitting in the audience.

Historically, I've tried to refrain from using this blog to put prosecutors on blast for something that I disagreed with on a case, but damn it gets tempting with some of the absolutely ridiculous offers that have come out of the D.A.'s Office lately.  I've literally set cases for trial based on whether or not a person should be on one probation or two (at the same time).  I've gotten in yelling matches over .1 gram of Ecstacy.  I've had to go to full-blown hearings on issues that should have been agreed upon as clearly settled matters of law.  I've dealt with cases that should have been dismissed on their first setting, only to be told that I can submit a letter to get it No Billed by the Grand Jury.  

I'm not alone in this thought process.  My friend and fellow defense attorney Brian Roberts detailed his frustrations with HCDA prosecutors in this excellent blog post in September.  Our brethren and sistren in the Defense Bar all feel the same way.  And, spoiler alert, so do a lot of the judiciary.

Too many prosecutors are holding onto cases like a group of compulsive hoarders.

Obviously, this doesn't apply to all of the prosecutors.  There are several that are still reasonable and knowledgable and don't consider themselves to be the Ultimate Arbiters of Justice.  They will recognize the cases that need to be dismissed and the cases that should be reduced or offered small punishments.  They are willing to face any internal consequences that they might have to suffer because they aren't afraid to do the right thing.

They are appreciated far more than they will ever know.

I have no doubt that I will get pushback on this post from those who will characterize me as just a liberal-ass defense attorney trying to let all those scumbag clients out.  But it's time to be practical about what is happening.  If the court system is clogged with non-violent offenses, it's going to be blocking the path of all the cases behind them.  The non-violent cases can't just be put on the backburner in perpetuity. 

Victim crimes will stack up behind them.  Victims and their families will have to wait for their days in court far longer than they ever have in the past.  And to what end?  So that somebody with a couple of Ecstacy pills learns the hard way that we should Just Say No to drugs?  

Across every walk of life, our planet has had to drastically adapt to conditions under COVID.  It defies all expectations to think that the Criminal Justice System wouldn't be called to do the same.  

It can be done without losing sight of the Principles of Justice.

It can be done by distinguishing between those we are mad at and those we are scared of.

I learned that lesson from a very wise Judge, and it has made all the difference.