Saturday, August 14, 2021

Scapegoating the Judges

When I was growing up in Bryan (which was a far smaller town in the 1970s than it is now), I was brought up under the belief that judges were the closest thing to nobility that a small Texas town had to offer.  We only had one District Court Judge in Brazos County back then (compared to the whopping three, count 'em, THREE that Brazos has now), and he was a family friend.  When our families socialized, Judge McDonald was treated with a little more reverence by us kids because of the fact that he was a judge.

[On a personal side note, Judge W.T. "Tommy" McDonald passed away this past year.  He was a dear, sweet man who was always very kind to me growing up and he kept up with my legal career from law school on forward.  He meant a lot to our family and he is very missed.  He deserved all of the love and respect that he received.]

After 22 years of being a lawyer, I recognize that judges are a little more fallible than I was raised to believe.  As any practicing lawyer can tell you, some judges are amazing and worthy of having a courthouse named after them.  A good judge follows the law and the rules of evidence, regardless of how unpopular the results might be.  Intelligence, bravery, humility and selflessness are hallmarks of being a good judge -- even if the results get you unelected by a fickle electorate. 

Not all judges live up to that standard.  I don't know a lawyer alive that couldn't spend hours telling a story about a judge or two, or five, or ten, that he or she deemed to be crazy.  

Judges are fallible just like the rest of us.  They make right calls.  They make wrong calls.  Their very job description calls upon them to hear one case at a time and make rulings based on the law and evidence as it applies directly to that one case.  By definition of the adversarial system, when two sides appear before a judge, one is likely to walk away from the experience feeling more disappointed than the other.  Maybe that results in the judge being complained about, a ruling being appealed, or even a grievance being filed. 

But while judges are certainly not perfect and are often criticized,  I have never seen the level of animosity currently being leveled at the judiciary as a whole as I am seeing in Harris County right now.  If it weren't so incredibly misguided, it would be almost comical.  For the past year, everyone from the District Attorney to the media to the Legislature has decided that the current batch of Criminal Court judges are apparently the single biggest cause of violent crime in the City of Houston.  

These 22 District Court and 16 County Court Judges aren't public officials trying to navigate an unprecedented pandemic crisis.  They are obviously all crime bosses trying to cause chaos in the streets by steadfastly refusing to go to trial and just releasing bloodthirsty criminals into the street as an alternative, right?  At a minimum, they've all shut down their courts and have refused to come to work, leading all of these violent offenders to be released on PR bonds so they could go kill again, haven't they?  Haven't they stopped having trials because they are lazy or too scared to risk coronavirus?  At least, that part is true, isn't it?

That's what we keep hearing if you watch the local news.

But the reality is that the behavior of the Judges during the Pandemic is actually quite the opposite.  From the onset in the spring of 2020, the Judges had to step into the fray quickly and efficiently as they were called upon to balance public safety against the constitutional rights of people accused of crimes.  It was a task that they had some level of familiarity with, having navigated a courthouse shut down due to Hurricane Harvey, but Hurricane Harvey would ultimately prove to be only a light dress rehearsal for the full-fledged crisis that Covid-19 has proven to be.

While the majority of defense attorneys and prosecutors shifted to Zoom appearances as quickly as possible, the vast majority of the judges in Harris County were still going into their courtrooms in person.  They had the option of designating their home addresses as temporary "courthouses" so that they too could Zoom from home, too, but unlike prosecutors and defense attorneys, those home addresses would have become publicly available.   Not to mention, all of those defendants in custody were at the courthouse.

So, it's kind of funny to me when I see posts like this one on Harris County District Attorney Kim Ogg's Facebook page:


But, what do you expect from somebody with a "Trump Won" avatar surrounded by a circle that says "I Stand for Medical Freedom" and "#StopTheMandate"?  I'm sure she probably wasn't really interested in the truth behind the job a bunch of Democratic judges have been doing.  Luckily, there are people down at the courthouse who know the truth of the matter and will stand up for the maligned judges, right?  Like perhaps, Dane Schiller, the spokesperson for fellow Democrat Kim Ogg, for instance.


Okay, never mind.

The sad thing is that the media is all over it, regardless of the truth of the matter.  Back in July, Judge Brian Warren held capital murder suspect Xavier Davis at No Bond on two out of his five cases pending in Judge Warren's court.  On the remaining cases, he set bail amounts that totaled well over half a million dollars -- no that it mattered, since the two No Bonds meant Mr. Davis wasn't going to be bonding at all.  That logic seemed to be lost on Channel 13's Jessica Willey who filed this article, arguing how offensive it was that Judge Warren had set a bond at all.

That's kind of like arguing that infinity plus half a million isn't a sufficiently high bond.  

The reality of the matter is that any "spike" in crime statistics coupled with a lack of cases being taken tp trial is the result of many factors -- the least of which, in fact, is the actions of the Harris County Judges.  If the media bothered to do a little investigation, instead of trying to push alarming headlines, one might inadvertently come to the conclusion that, for the most part, the judges are actually doing a pretty good damn job under the circumstances.

So, who or what is actually to blame?  Lots of things.  Let's look at (what should be) the obvious ones.

1.  Covid-19 -- It is absolutely astounding to me that critics of the judges act as if, for no particular reason, one day last spring, the judges all decided to stop trying cases and began letting people out on low bonds.  Attacks from critics seem to be ignoring the pandemic in the room.  If Covid-19 changed everything around the world, I don't know why anyone would think that the Harris County criminal justice system would be immune from having to change as well.  Judges, who have the power to order human beings (defendants, attorneys, witnesses, and jurors to name a few) into their courtroom, had to decide whether or not they should do so.  

On the misdemeanor side of things, this would seem to be a no brainer.  The most serious of all misdemeanor cases carries a maximum punishment of one year.  It's difficult to justify making a person come to court and risk a potentially fatal disease for a relatively minor case.  On the felony side, the judges recognized that although they dealt with serious cases, many of the settings they held were not important.   Cutting out personal appearances was something that wasn't common prior to the docket but they took the bold (and, in my opinion, smart) move of waiving appearances.

And as for jury trials?  If you don't feel much sympathy for a defendant who is called upon to show up for court (because, you know that whole "innocent until proven guilty" phrase is just a meaningless phrase to pay lip-service to when we're in grade school, right?) how about citizens called for jury duty?  That hits a little closer to home, doesn't it?  For all of those falsely claiming that judges haven't been holding court, how do you feel about coming down to NRG with a several hundred folks from all over the county who may or may not be vaccinated and/or infected?

2.  Jail Overcrowding --  For all of those screaming about judges releasing violent offenders on bond, I'd like you to offer your suggestion on where to put all of these individuals that you want off the street.  The Harris County Jail seems to have a capacity to house somewhere between 9,000 to 10,000 people (based on my amateur reading of the Harris County Sheriff's Office web page.  In this article written by Nicole Hensley, Sammantha Kettererer and other staff writers for the Houston Chronicle on July 9th, 2021, the authors noted that in 2020 alone, 89,600 people were charged with felony or misdemeanor cases.  I'm no mathematician, but if the judges were to keep them all in jail, we would need at least 8 more jails for starters.

Simple math dictates that not everyone charged with a crime will be staying in custody.  Considering the fact that keeping thousands of people incarcerated in close proximity is like pouring gasoline on a fire when it comes to the spread of Covid, one has to recognize that there was some level of urgency to reduce the population if possible.

The judges had to set bonds and in many cases give personal recognizance bonds to help alleviate the crowds.  With juries slowed down to a trickle (if not a complete stop), cases were coming in but they weren't moving out.  Something had to be done.

3.  The Bonding Industry --  Without getting too far out in the weeds here (hopefully), the settlement from the Federal lawsuit over misdemeanor bail bonds almost completely wiped out the need for a bail bonding company for people charged with misdemeanors.  If you were a bonding company, that's the erasure of probably at least half of your business.  Some adjustments are going to have to be made to the business model, and that means being more flexible on the felony bonds you hope to make.

It used to be the conventional wisdom that a bonding company required 10% of the overall bond from the defendant before posting.  Now, I'm hearing stories of bonding companies only requiring 5% or less.  They are also more flexible with payment plans and what they require down.  So, if you are reading a news article that talks about how some teenaged gang member made a six-figure bond, you should probably know that there's a bonding company bending over backwards to stay in business that probably helped facilitate that far more than a judge did.

Side Note:  In the case referenced in the above link, Judge Ana Martinez was criticized for setting a bond of $750,000 for Robert Soliz, who was charged with killing a police officer in a road rage incident (the officer was not on duty or in uniform based on my understanding). The criticism was completely unwarranted for several reasons.  First of all, Judge Martinez's predecessor, Randy Roll, set that bond prior to leaving the bench.  Second, $750,000 for a non-capital murder bond is incredibly high.  When I was a prosecutor, the standard bond for murder was $50,000 just to give you a frame of reference.

4.  The Prosecution --  One of the things that I've been genuinely surprised by during the pandemic has been Democratic District Attorney Kim Ogg's unabashed willingness to blame all of the problems in the Harris County Criminal Justice System on her fellow Democrats in the judiciary.  In addition to Dane Schiller's comments on Facebook (posted above), one of Ogg's representatives recently spoke at a local meeting of Democrats and literally uttered the words "Blame the judges!" when she was fielding questions about crimes being committed by offenders out on bond.  

I mean, Ogg has always been a solid pitcher when somebody needs to be thrown under a bus, but her war on the judiciary has been absolutely unabashed.  Given her prominence in the Democratic Party, I'm surprised by her utter lack of loyalty.  She doesn't even try to soft-sell the issue by pointing out the extraordinary conditions caused by Covid.

To make matters worse, Ogg is conveniently sidestepping her Office's own involvement in the problem.  For a great many months (maybe even a year, I'm not sure), the D.A.'s Office didn't send prosecutors to daily dockets.  I'm not faulting that.  She has a duty to look after her employees' safety, but the lack of prosecutors in court was most definitely a contributing factor to cases not being worked out (and thus contributing to the backlog).  

And a lot of the proseutors haven't been exactly stellar about being responsive to e-mails and discovery requests in the downtime, either.  Not all of them.  But a lot of them.  None who live in my neighborhood.  Just saying.   Let's move on.

Oh, and by the way, for those of you outraged that a judge would give a repeat offender yet another bond even on a violent offense, you may want to know that prosecutors have to file a motion in non-capital cases to hold a defendant at no bond.   If that motion gets filed, the defendant is entitled to a hearing on it.  The judge doesn't get to just hold someone at no bond without those steps being made.  

So the next time Kim Ogg or Dane Schiller (or some other surrogate of Ogg's campaign machine that she employs at the D.A.'s Office with taxpayer money) says "blame the judges" when a repeat offender gets a new bond, it might behoove the media to ask whether or not the D.A.'s Office filed a Motion to Deny Bond that the judge overruled.  It makes a difference and the truth matters.  At least it matters to people other than Kim Ogg.

5.  The Defense --  I would not be intellectually honest if I didn't acknowledge that the Defense Bar plays a role in some of the delay associated with the Criminal Justice System and the Pandemic. Of course, that's actually part of our job description and we wouldn't be effective lawyers if we weren't doing everything we legally could on behalf of our clients -- regardless of how unpopular it makes us with the general population.  

I'll fight tooth and nail to keep from picking a jury at NRG Stadium because I don't believe that it can be done effectively.  If that means my client stays out on bond while I continue to delay going to trial, I'm fine with that.  I love going to trial and I think anyone would be hard pressed to label me as a trial dodger in normal times, but I wouldn't be doing my job by agreeing to do something that I think keeps my client from receiving a fair trial.  I'll file every motion for continuance based on Covid that I can.  I'll file every written objection to NRG on every case. 

Some judges have granted my motions.  Others haven't.  All have considered them, which is what they are supposed to do, because they're judges.  If they agree that a fair trial can't happen during Covid, they are bound by duty not to proceed with one, no matter how much it pisses off the general public.

I'll do everything within my legal means to keep my clients out on bond.  If that makes you angry as a citizen, that's cool.  I understand.  It's part of my job.  But if you're charged with a crime, you're probably going to want to call me.

6.  The Police --  I was amused to see former Houston Police Department Chief Art Acevedo kissing up to Kim Ogg on Twitter the other day -- especially when a primary cause for delays in discovery (which subsequently delays the resolution of cases) is the police.  Although I'm told that the situataion has drastically improved in the past few weeks, under Acevedo's tenure, defense attorneys were told that we had to wait for six months before we could even ask for an officer's body-worn cameras from HPD.  Offense reports and evidence are slow in coming, and that contributes to the slowdown, as well.



Defense attorneys have a duty to review all the evidence and if it hasn't been turned over by the police, we can't do that.

There are more factors involved in the rise of crime during Covid and we could spend hours and hours discussing things like desperation and socio-economic status during times of crisis.  Crime rises during times like these, historically.  I've listed six factors other than the judiciary.

Here's the big difference between these factors and the judges:  the rest of us can defend ourselves when attacked by the media.  Judges are bound by judicial canons on what they can and can't say when responding to questions like, "Why did you set a bond on this case?"  They are literally forbidden from commenting on matters pending before them.  That makes them an easy target for the media, Republicans seeking to re-establish a foothold in Harris County, the police, anti-crime activists, and a shameless District Attorney.

As I said in the beginning, the judges are not infallible and none of them possess a crystal ball that will tell them whether or not a defendant will commit a violent offense while out on crime.  I've seen firsthand the reaction of several judges when they learned that someone out on bond committed a crime of violence -- and in some instances, killed someone -- while out on bond in that judge's court.   I've yet to see one of those judges take it lightly.  In the cases where a fatality was involved, they've been devastated.  Anyone who portrays them as throwing caution to the wind or not caring about the ramifications of their decisions simply hasn't been in the courtroom.

On this coming Monday, I'll hit my 22 year anniversary of practicing criminal law in Harris County, Texas.  The past year and a half under Covid conditions have been like nothing I've ever seen (and that includes two hurricanes and a tropical storm).   There have been many ideas and counter-ideas.  Some I've agreed with and some I haven't.  Throughout it all, the judges have done their best to manage all of the competing interests and keep the Constitution and the laws and procedures of the United States and Texas protected.  They've worked their asses off, only to be slammed at every turn.  

The reality is that the majority of the judges deserve to be commended, rather than condemned.

Wednesday, August 4, 2021

The Delta Walkback

 It's been a little over a month now since the CJC started to slowly move its way back to some level of normalcy in the wake of the Covid Crisis.  Lawyers are regularly appearing in court in person.  Defendants are showing up with increased frequency (although the vast majority of courts have mercifully reduced the requirement for in-person appearances).  Prosecutors are back in the courtroom and I'll even give Harris County District Attorney Kim Ogg credit for sending senior prosecutors from specialized divisions into the trial courts to help work out the docket -- that is helping quite a bit, actually.  Cases set for trial come with an admonishment from the judge that the trial date is real, as opposed to the aspirational dates we've been getting for the past year or so.

Zoom started to fade out in many courts.  In some courts, it is still trickling out.  In others, it's already completely gone.  Apparently maintaining the hybrid of Zoom and in-person lawyer appearances is kind of a pain in the butt for coordinators.  This has resulted in a not-insignificant level of confusion amongst attorneys as they try to keep track of what courts are zooming, which ones allow it, and which ones forbid anything but zooming.  Last week, I walked into a misdemeanor court and was told to walk right on back out and zoom in.  The witness rooms were all taken so I went back to my car in the garage and zoomed in, only to be chastised by the judge for appearing late.   That wasn't frustrating at all.  

But unfortunately, the CJC's declaration of Victory Over Covid now appears to be premature as the Delta variant has emerged.  Obviously, the Delta Variant has NOT rendered the Covid vaccines useless by any stretch of the imagination.  However, as anyone who follows the actual news knows, Delta is infecting the vaccinated and using them as transmitters to continue the spread at a skyrocketing pace.  Fortunately, for those of us who have had the vaccine, the effects of the Delta variant are appearing to be significantly mitigated.  For those who are not vaccinated, however, Covid is just as deadly as it has ever been -- if not more so.

As per usual, Texas is slow to react.  Governor Greg Abbott seems to be in a thus-far-undeclared race for the Republican nomination for President in 2024 by trying to be a bigger lunatic than Florida Governor Ron DeSantis when it comes to refusing to allow mask mandates.  Since there is no mask mandate, the CJC apparently can't order people to put on masks prior to entering the building.  I was in court yesterday, and although there is definitely an increase in people wearing their masks, there was a solid 40% or so who were not.

Today, Bexar County announced that is was suspending jury trials (again) for the time being in response to the rapidly accelerating Delta variant.  It is my guess that other major counties will soon follow suit and/or the Texas Supreme Court will issue another emergency order, suspending jury trials across the State.

Just today, I've had two friends who are defense attorneys tell me that they have Covid (despite their vaccinations) and I've been told of a third friend who tested positive.  Yesterday, District Attorney Kim Ogg announced that she had tested positive despite being vaccinated, and there are rumors of several other people in the Office being positive as well.  The fire has most definitely jumped over the firewall, and the question now becomes how long it will take for the CJC to react accordingly.

I've had multiple two people reach out to me and ask me to blog something, imploring the judges to go back to Zoom dockets and go back ASAP.  So, here you have it.

The Delta variant is scary as hell in general, and deadly terrifying for the unvaccinated.  Sadly, we cannot rely on many dumb asses grown adults to get the vaccine or even wear masks, in some cases.  Continuing to require in-person appearances for anyone - prosecutor, defense attorney, defendant, or court staff, is subjecting people to exposure to a virus that we would inevitably take home and expose our children to.  For those of us with a child too young to be vaccinated, that's a very frightening likelihood.

I know how frustrating this is.  The past month back in the CJC has been fantastic, quite frankly.  I've loved being back.  I love working on cases with prosecutors in the same room.  It has truly been an example of not realizing how you enjoy something until it is taken away from you.  Don't get me wrong, I still stand by my completely awesome DISCO plan, but when all is said and done, I've actually been very happy to be back in that shitty old building for the past month or so.

I don't really want to go back to Zoom dockets, but I don't think there is any other choice under the circumstances.  Hopefully, with some of the new diversionary programs announced by Kim Ogg in June, cases will move with more ease now.  But as long as the Governor refuses to look out for our safety, our only hope at the CJC is that the judges will.

So, on behalf of myself and my multitude two of my blog readers, I hope the judges will consider returning to Zoom as soon as humanly possible.

Wednesday, June 30, 2021

The "Genius and Miraculous" District Attorneys' Office

Oh man.  

Kimbra.  

Just when I think she can't be a more shamelessly self-aggrandizing politician, she pulls something new out of her little white Boss Ogg hat.



Today, she released a pre-recorded message to her Assistant District Attorneys that was chock full of pure political awesomeness as she laid out her plans for solving the backlog of criminal cases in Harris County, Texas.  At one point, she literally applauds the work of her office as "nothing short of genius and miracles."

Seriously.

If you would like to watch it in its entirety, here it is.


NOTE:  If you are reading this on an iPhone, the video may not play, but you can get to it by clicking here.

If you don't have thirty minutes to enjoy Kim Ogg celebrating herself, here are some of the highlights:

Highlight # 1 --  Even a Pre-Recorded Kim Ogg keeps the Commoners Waiting

Even though everyone is back in the building after receiving their vaccinations, Kimbra decided that she would best reach the members of the Office with a video message rather than a general assembly.  That makes sense.  After all, the rank and file is busy trying to work on that case backlog and who has time for an afternoon meeting, when a pre-recorded video can more efficiently get the message out, right?

But this mandatory pre-recorded meeting goes on for over TEN FREAKING MINUTES before Kim takes the stage with her campaign motivational, rally-the-troops speech.  It's a freaking PRE-RECORDED MESSAGE.  Seriously?  Y'all don't know how to, like, trim out the first ten minutes with iMovie or something?

It's moments like these that I'm so glad that I'm not at the office anymore.  If your name ain't Mick Jagger, I'm not waiting on your ass to take the stage.

Highlight # 2 -- Move over Chris Pratt, the Guardians of Justice are Here

Approximately two minutes after Madonna has taken the stage Ogg begins speaking, she immediately begins addressing the difficulties facing her Office.  And, of course, that starts with blasting the Defense Bar.

At the 12 minute, 12 second mark (she started talking at the 10:14 mark), she begins with throwing insults at the Defense Bar:
. . . unlike the DEFENSE BAR, whose only duty is to THEIR CLIENTS . . . GUILTY OR NOT! . . . prosecutors are tasked under the law with protecting everyone's rights, in our search for the truth in every single case.

And then she finishes with . . . .wait for it . . . 

. . . And that's why I call us the Guardians of Justice!

Photo created by Luke Newman

 Gag.


Highlight # 3 -- Blame the Judges and their Low Bonds

So, apparently, the real masterminds behind the "Crime Wave" affecting Harris County are those damn judges who are letting everyone out of jail.  At the 13:30 mark, almost a full minute after blasting the Defense Bar, Star Lord Kimbra goes after the Judiciary.

While we know that 55 hundred violent offenders are in jail awaiting trial [TRANSLATION:  "waiting on discovery"], tens of thousands more are out on bail.  At least four thousand of them are repeat and violent high-risk offenders on ankle monitors.  Let's get them to trial!

Seriously, go back and watch how Kim sounds like a high school cheerleader when she exclaims that "Let's get them to trial!" part.  It's plain silliness.  Like she just came up with that idea and is suddenly yelling "Go team! Go!"

But wait, there's more.

She takes a potshot at Pre-Trial as she continues to levy the blame for the carnage and maiming (yes, maiming) affecting Houston on these damn low bonds.

We've seen defendants commit crimes even while wearing ankle monitors and we know that we're rarely notified. It's these repeat and violent offenders, freed on insufficient bail, who are contributing to the crime wave that's killing, injuring, maiming Houstonians.


Highlight # 4 -- the Emergency Case Backlog Reduction Program

Once done blaming everyone but herself (and also, strangely, Covid) for the backlog, Kim gets down to business by rolling out her new idea called the Emergency Case Backlog Reduction Program. 

This new and innovative program authorizes overtime and extra pay for prosecutors to examine cases and determine whether or not they are serious or violent offenses.  If they are not, offer Diversion Programs that help move less serious cases.  

What a fantastic idea.  Wish I had thought of it.  Better yet, I wish she had implemented it at, you know, like at the START of the pandemic.


Although I'm all for prosecutors reviewing bullshit less serious cases, her "program" seems to be like a bit of overkill to me.  Overtime to evaluate cases?  Here's a novel idea -- how about asking prosecutors to hear out defense attorneys in court when they point out that a case is either weak or not serious, instead?  It's really not all that complicated.  

As my mentor, the late, great Ed Ziegler once said:  "We're pole vaulting over mouse turds, here."

Instead of yet another Ogg Program, how about just returning some discretion to the trial bureau so that your rank and file prosecutors aren't scared of getting fired if they dismiss a case or offer a pre-trial diversion?  Just a thought.  

My favorite part of her diversionary program is the warning she gives at the end:
The defense needs to respond.  After all, it's in their clients' best interest.

Um, yeah.  The first time I let a grandstanding-ass-politician like Kim Ogg tell me what's in my client's best interest is the day I need to hang up my law license. 

Diversion programs are very nice resolutions to the cases the State can actually prove, but if Kim thinks attorneys are going to be flocking to those programs without evaluating the cases against their clients first, she's really banking on a large batch of ineffective defense attorneys.  Diversion Programs are not a substitute to fighting a bad case, just fyi.  In addition to having the tool of a diversion program, Kim needs to make sure that her prosecutors know that they can dump a piece of crap case without repercussions, as well.

Highlight # 5 -- Experience Matters, if there is any of it left

Kim then moves on to those serious and violent cases that won't be eligible for a diversion program, and she calls upon "our most experienced chief prosecutors, now serving in vertical and specialized prosecution units" to help the newer prosecutors try serious cases.
Take charge, Senior Prosecutors.  Help us make this program work!

There is no doubt that experience matters and Kim is right to call upon the senior prosecutors to help combat violent crime.  There's just one small problem with that...

She's fired or otherwise run off the vast majority of them. 

Whether it be the thirty-odd prosecutors she fired before even taking office, or the ten or so chief prosecutors that she ran off during her absolutely idiotic Pandemic Witch Hunt last year, experience is in extremely short supply at the D.A.'s Office these days.  The definition of a "senior prosecutor" has never been looser in the history of the Office.

She's 100% correct in saying that senior prosecutors are needed during this time of crisis.  Unfortunately for all involved, there just aren't very many left.

She closes this ridiculous speech by giving a motivational rallying cry:
Team, we have a big job ahead of us, but the STATE is ready!

Those of us who practice in the CJC know that under Kim Ogg's leadership, nothing could be further from the truth. 

Saturday, June 12, 2021

The New Normal and the Days of DISCO?

I think that it's fair to say that those of us who practice criminal law down at the Harris County Criminal Justice Center on a regular basis are starting to sense a movement towards a return to normalcy these days.  There's an underlying feeling that's similar to riding on an airplane as it begins its initial descent towards the destination or seeing the rain starting to lighten up at the end of a long thunderstorm.  

As more and more people get their vaccines and the number of Covid cases continues to drop, we all have a sense that it is time to get back to business as usual, or at least some semblance of it.  Those of us who have been sitting at our desks and couches, fighting the good fight from the comfort of our homes or offices, will seen be trying to squeeze back into our pre-pandemic courtroom attire and actually traveling down to the CJC again on a routine basis.  For many of us, our in-person appearances are already rising in frequency, and appearing in the rickety old building no longer feels like the dangerous stealth mission into Chernobyl like it felt a year ago.

In many ways, that's a definite positive.  If I never have to go over plea paperwork with a client over the phone again, that will suit me just fine.  Arguing a motion or questioning a witness without having to deal with the staccato in and out of Zoom audio feels like a very exciting benefit that I didn't realize how much I would miss.  Having people ask me how I'm liking working for Cheryl is much funnier in person than over Zoom, and dammit, the best thing by far about going back is seeing our courthouse family again.

But there are several things that we adapted to during the pandemic that are absolutely worth holding onto, even if they are no longer part of a mandatory safety protocol.  We have learned some lessons over the past year or so about what is necessary and what may be not-so-necessary to keep the Criminal Justice World spinning on its axis.  All of it has to be balanced against a stupefyingly tremendous backlog of cases that have accumulated over the pandemic that is going to take years to sort through.  Unlike the aforementioned plane ride or thunderstorm, we are nearing the end of the equivalent of a yearlong hurricane that has left an incomprehensible amount of damage in its wake.

There will have to be a new normal for how we handle cases, and I'm hopeful that the new normal embraces some of the more positive aspects of how we adapted under Covid -- specifically when it comes to Zoom appearances and mandatory in-person appearances for Defendants.

Judges Natalia Cornelio of the 351st District Court and Abigail Anastasio of the 184th District Court have been doing research into the pros and cons and the role of Zoom as things get back to "normal."  They were kind enough to listen to my ideas, and I thought I would share them here on the blog as well.  Let me know what you think.

Prior to the pandemic, it was standard practice in the vast majority of courts that all Defendants charged with crimes personally appeared for every court date they had scheduled.   These settings were, on average, once a month and more often than not involved nothing more than the Defendant signing a reset promising to appear at the next setting.  The settings, especially on the newer cases, were generally pointless because discovery evidence (which prosecutors are required to provide to the defense attorney) wasn't ready yet.  

Without the evidence being available, no meaningful conversation could be had between a prosecutor and a defense attorney and, subsequently, between a defense attorney and his or her client.  The client's presence in the courtroom (and the already overcrowded Criminal Justice Center) was completely unnecessary -- and often counterproductive.  Defendants (who were sometimes required to maintain employment as a condition of remaining on bond) had to take off work, fight the crowds coming into Downtown and into the building, and sit there for a couple of hours waiting for their attorney to arrive.  All of this so that they could sign a reset promising to do the same thing again in a month.

Under the pandemic, all of the courts waived in-person appearances unless there was something that fundamentally required the Defendant's presence.  If a Defendant needed to acknowledge and sign bond conditions, for instance, he or she may have been required to appear.  If the Defendant was alleged to have a violation of a bond condition or needed to be present for a hearing on his or her case, it was understandably necessary for that Defendant to show up in court.

But all of those monthly status checks no longer required the Defendant to show up.  The result was a significantly less crowded building and there is no reason that needs to change.

Proposal # 1 -- No unnecessary in-person appearances by Defendants required until the completion of Discovery Exchange

Since nothing meaningful can be accomplished without discovery being completely turned over, it is both silly and oppressive to make Defendants who are out on bond to appear just to sign a reset.  It literally accomplishes nothing.  With the exception of a first appearance after bonding out to sign bond conditions, they shouldn't have to come back just because the State of Texas is running behind on Discovery.

Prosecutors (and some judges) like Defendants to have to appear in person, unfortunately.  The reason for it has little to do with Justice, however.  They know that a Defendant who ain't there can't resolve his or her case.  That Defendant won't be there to hear the totally awesome plea bargain offer that the prosecutor is planning to throw out there.  Who needs to review evidence if the offer is so fantastic, right?  The more appearances that a Defendant is required to make, the more his or her resolve to fight his case will fade.  Hopefully, they will take the time served offer just to get their employer to quit complaining about them missing work.

It shouldn't be that way.  Right now, the discovery process is painfully slow.  As I've mentioned before, the Houston Police Department doesn't even consider expediting turning over footage from Body Worn Cameras until six months after the arrest.  The backlog seems to be growing exponentially, and that slows things down more and more.  There is no articulable reason that the Defendant should be the person who has to pay the price for the delay.

The presumption should be that unless there is a specific need for the Defendant to be in court, the Defense Attorney's appearance should suffice.

Proposal # 2 --  The Age of Disco(very Compliance) Settings

For those of you who don't practice criminal law in Harris County, you may not know that the types of court settings we have carry names.  In felony cases, the setting is referred to an Arraignment (ARRG) setting prior to the case being indicted by the Grand Jury.  Once the case is indicted, (depending on the court), it moves to a Non-Trial (NTRL) setting.  Depending on how concerned a particular court is, a case may have multiple NTRL settings before moving to the Pre-Trial Conference (PTCR) setting.  This setting is generally when a Court is notifying the State and the Defense that it is time to start talking about either working the case out or setting it for trial.  There may be several of these settings too, depending on the court.

After PTCR comes a Jury Trial (JTRL) or Court Trial (CTRL) setting.  Sometimes there may be a Pre-Trial Motions (PTMO) setting if there are some legal issues that need to be resolved before trial day.

My proposal is that after the ARRG setting, the court settings become Discovery Compliance rather than NTRL.  And, as I mentioned to Judge Cornelio, we'd be missing a huge opportunity if we didn't give them the code letters of DISCO.  

While the title of a setting may not seem like that big of a deal in the big scheme of things, this new name could actually prove to be helpful.  Judges are known to get antsy about cases getting older, but if a quick glance at the docket sheet shows that it's the 5th DISCO setting, the picture becomes quite clear on what the hold up is and who is responsible for it.  There's no reciprocal discovery in the State of Texas, so multiple DISCO settings point a clear finger at who is to blame.  

In my thought process, once Discovery has been completed, the Judge makes a finding that both sides agree that there has been compliance (at least to the best of their knowledge) and the Judge has a clear signal that there is nothing to keep Defense Counsel from rationally discussing the case with his or her client.  At that point, the setting moves to Pre-Trial Conference, which serves, in essence, as a Plea or Trial setting.  If a Pre-Trial Motion needs to happen, that's no problem.  After that, it's trial time.

It streamlines the process, in my opinion.  It also insulates both the Judiciary and the Defense Bar the next time a certain publicity-seeking, blame-shifting elected District Attorney tries to put them on blast as being responsible for the backlog.  Maybe if there are documented entries showing how many DISCO settings are happening on everyone's case, there won't be so much talk of greedy defense attorneys and lazy judges.  Just sayin' . . . 

Proposal # 3 -- Defense Attorneys are allowed (but not required) to use Zoom appearances on all settings prior to Pre-Trial Conference

I ain't gonna lie.  I've enjoy the hell out of Zoom settings when there weren't substantive issues to be addressed in court.  You can get a ton of work done sitting at your desk while waiting to be called upon in a Zoom meeting.  My productivity has increased dramatically during the pandemic and that largely attributed to not having to drive Downtown, fight the elevators and the crowds, and waste my time standing around waiting to approach the judge like I'm waiting on my order to be ready at Dairy Queen.

That translates into better and more effective representation, and that benefits us all.

If an attorney would prefer to appear in person, that's no problem as long as you aren't in the 338th. I would anticipate that after a few months of normalcy, attorneys will find themselves in court more and more often because more cases will have completed Discovery Compliance.  They don't need to appear in person in one court and then speed back to the office to log on and Zoom from their computers.  That would be silly.

So, that's my modest proposal.  Let me know what you think!  Who is ready for the Age of Disco?

Tuesday, May 18, 2021

Kim Ogg and the Backlog Blame Game

Kim Ogg had jury duty Wednesday.

How do we know this?

Because like any good self-promoting and self-aggrandizing politician like Kim Ogg, she made sure that the world knew it through multiple Twitter posts that let a breathless audience know that even super important people like her Royal Oggness will take time amongst the unwashed masses to serve on jury duty.  

And like most jurors, she, of course, brought a photographer and called Channel 13 to take pictures of her during her appearance.  I mean, the rules say you can't bring your children to jury duty, but it doesn't say anything about not bringing your photographer!


I heard from multiple, credible sources that once Ogg was assigned to a court for the actual voir dire process that she approached the judge and asked to be excused before having to sit through something so tedious.  That request was reportedly granted, so one might make the distinction that although Ogg showed up for jury duty, she did not, in fact, serve on jury duty.  But why let that slow down a photo op?

To be fair, she never claimed to have done anything other than to have "showed up," but I think most of us would agree that actually participating in the process would have been more helpful than just being counted as present before taking off.


But, Kim Ogg half-assing her Civic Duty isn't the point of this post.  What actually was notable was her third tweet about her mini-experience at Jury Duty:


There are a couple things to unpack here. Let's start with the issue that Harris County's Elected District Attorney seems to think that people have to register to be a juror.   One brilliant, Eagle-eyed Twitter follower caught onto this mistake quickly.


Fun fact:  people don't register to be jurors.  In the State of Texas, when you get your driver's license, you are added to the pool of potential jurors who receive a summons.  Otherwise, we'd never have enough people.  The fact that Kim Ogg would misstate something so basic is wildly amusing because of how simply wrong it is.  Somewhere out there, I can envision a multitude of Ogg followers blindly Googling "How do I register to be a juror in Harris County?"  

Her Tweet was so stupid, that I look forward to seeing a Tweet soon from Mark Goldberg that reads:  
"Late yesterday afternoon, a Tweet went out from DA Ogg that should have gone out under my name.  What you actually got was a draft form with some blatantly erroneous misinformation about needing to "register" for jury duty that was inadvertently distributed in that form, and I apologize for any confusion."

But Ogg's lack of basic Civics Knowledge isn't what I find interesting from that last tweet. What was far more interesting was this quote:

"Folks, we have to tackle this case back log.  Crime victims and their families deserve their day in court."

While Ogg is correct that there is a tremendous backlog of cases in Harris County due to the Covid-19 Crisis, her Tweet seems to neglect the fact that the District Attorney's Office is second only to the virus in adding to that backlog.

As I noted in this post from last December, prosecutors continue to contribute to the backlog of cases by failing to make reasonable punishment recommendations on cases in light of the circumstances that we are all facing.  It certainly isn't all of the prosecutors who are doing that.  Many prosecutors remain a pleasure to deal with and a picture of reasonableness.  But others remain either 1) oblivious to the totality of circumstances surrounding the Criminal Justice System at this time; or 2) too scared that they will get in trouble with the Upper Administration for making an excessively "lenient" plea deal.

Over the past year, I've had at least three different clients whose plea bargain offer was literally the maximum sentence allowable under the law.  I'm not saying that the charges weren't serious but, as I told one prosecutor, throwing around the maximum sentence isn't a plea bargain offer, it's a dare to go to trial.  If the offers coming from the prosecution offer zero incentive to plead, then of course the case is going to get set for trial.  In some cases, that may be appropriate, but more often than not, that approach to plea bargaining is nothing short of absurd.

The more troubling aspect of this is that too many prosecutors are using high recommendations as their default when they are unfamiliar with the case.  I was recently talking to a fellow defense attorney who was frustrated with a prosecutor who set a case for trial rather than offer a lower recommendation because the prosecutor was continuously unable to make contact with the Complainant.  The Complainant, as is true in many domestic violence cases, was avoiding speaking to the prosecution because she no longer wanted charges pursued.  Rather than dismiss (and potentially refile the case later) or offer a lower recommendation, the prosecutor decided it was easier to set it for trial and add to the backlog.

I ran into another fellow defense attorney friend in court last week.  He seemed genuinely perplexed by an extraordinarily high plea bargain recommendation that he had just received from a young prosecutor.

"Is it just me, or are these recommendations suddenly insane?" he asked.

I told him my theory was that younger prosecutors knew that they would never find themselves on the wrong side of the Ogg Administration for offering a recommendation that was too high.  A plea bargain offer that was too low couldn't be rescinded once accepted, and that could get them in deep crap with an elected D.A. who was known to fire people for embarrassing her in any way, shape, or form.  A high recommendation can always be reduced when and/or if appropriate, but it can't be raised once accepted.  Of course, it would become the natural default of the indecisive prosecutor to name an astronomical number and then sort it out somewhere later down the road.

This problem is further compounded by the fact that the massive caseload is causing prosecutors to fall way behind in completing tasks necessary to resolve cases.  Complainants aren't being located.  Discovery isn't being turned over in a timely manner.  Hell, the Houston Police Department is so backlogged that prosecutors aren't even allowed to ask for body-worn camera footage on a case until six months after the offense.  Additionally, complaints about prosecutors who don't return e-mails or phone calls have skyrocketed during the pandemic.  Part of this is exacerbated by Ogg's displease-me-and-I-will-fire-you policy that has led to a higher turnover rate, which, in turn, leads to prosecutors frequently moving from court to court and caseload to caseload.

And so another case is added to the backlog.

If a prosecutor doesn't fully know his or her case, then there is no way he or she can reasonably negotiate on it.  [SIDENOTE:  If you are a prosecutor and you are getting mad reading this, then I'm probably not talking about you.  You're great!  The person in the next cubicle over is the one I'm talking about.  You know that person is terrible.]

Just for fun, let's talk about what happens when a prosecutor does evaluate a case and sees that from a factual standpoint that it probably isn't the greatest case for the State of Texas.  Maybe it needs to be dismissed, or maybe it just needs to be given a low plea bargain recommendation.  It happens.  Cops can't be right 100% of the time, can they?  Prosecutors who don't want to pull the trigger on a dismissal or a low recommendation because they don't want to get in trouble have a couple of options.

A prosecutor can get a case No Billed by the Grand Jury.  There's an old saying about a Grand Jury indicting a ham sandwich, meaning that there is so little evidentiary oversite in the process that even a ham sandwich can be indicted.  That's certainly true. In today's digital age of electronic files, I've now had not one, but two cases that were indicted by accident, literally.  In one of those cases, the Grand Jury just rubber stamped my client's paperwork because it had gotten stuck to another case.  They hadn't even heard evidence on the case!  True story, but I digress.   The flip side of prosecutors being able to indict anything is that they can also utilize the Grand Jury process to get rid of anything -- including weak cases.

Back before the Houston Chronicle's Lisa Falkenberg's articles about Grand Jury abuses that won her a Pulitzer Prize and got rid of the "Pick a Pal" System of selcting Grand Jurors, you didn't really hear the Defense Bar complaining too much about the Grand Jury System.  The reason for that was two-fold.  First, the threshhold of proof for a case being indicted was so low that an indictment was normally expected.  Second, and more important, any Defense Attorney with any amount of sense knew that a solid Grand Jury presentation was a fantastic way to make a terrible case go away and go away early.

Take, for example, a murder case with strong self-defense issues, or perhaps, every single officer-involved shooting ever (until recently).  The decedent's family wants the accused's head on a platter.  The prosecutor knows that the case is terrible and has no chance of achieving a guilty verdict.  However, the prosecutor knows that the decedent's family is going to be tremendously upset and tremendously vocal if the prosecutor were to just dismiss the case.  The answer was always the Grand Jury.  

The Grand Jury met behind closed doors.  The Defense Attorney presented a packet.  The Prosecutor presented the packet to the Grand Jury and acknowledged that he or she didn't really disagree with what the defense attorney was saying.  Voila!  The Grand Jury returns a No Bill and the case is over.  The Prosecutor could sympathize with the deceased's family but blame that damn Grand Jury.  Some thought it was chickenshit.  Others found it to just be a practical tool under the circumstances.

But, getting back on topic, I bring this up because the Ogg Administration's culture of fear has led to prosecutors indicting cases, even when they shouldn't be.  The Defense Bar is still putting forth packets.  We even offer to let our clients testify (sometimes).  But more often than not, the indictment is coming down because the prosecutor has the power to just say "Yeah, that's all well and good, but you only have to find Probable Cause that a crime was committed.  Defenses can be argued later at a trial."  

And so another case is added to the backlog.

The other thing that a prosecutor can do to help reduce the backlog is agree to a court trial.  Let the judge decide whether or not a case is proven beyond a reasonable doubt.  Or let the defendant plead guilty to the judge without an agreed recommendation to see what punishment the Court feels is appropriate.  The Court could order a Pre-Sentence Investigation (PSI) report prior to sentencing.

But first, the State of Texas by and through her Assistant District Attorney, has to waive their right to a jury trial.  Without getting into the arguent of the absurdity of the idea that the State has a right to a jury trial, just understand that the prosecutors have to agree for a trial to be tried to a judge.  They have to agree to let a Defendant plead to a PSI or without an agreed recommendation to the judge.  If the State doesn't agree to that (by waiving the State's right to a jury trial), then a jury trial must be held to determine guilt/innocence.  This has always the case, but it has happened with more and more frequency under the Ogg Administration.  Although judges are elected officials entrusted to by the public to hold their positions, just like the District Attorney, the Ogg Administration has decided to block many of them from being able to dispose of a case.

And so another case is added to the backlog.

Kim Ogg likes to blame other people for things.  She is a politician after all.  She blames defense attorneys for the backlog. She blames Hurricane Harvey.  She blames COVID.  She blames the Freeze.  She blames the judges for letting too many people out on bond so that they won't plead guilty, thus causing the backlog.  She blames people not showing up for jury duty.  She even went so far as to poison the well of potential jurors send out an e-mail blast applauding herself for her jury "service" that encouraged jurors to show for service to "help give crime victims' families their day in court." (NOTE:  No mention of those folks presumed innocent under the law who might also want their day in court).


Ogg has blamed everyone but herself and her ridiculously stringent (and anti-progressive) policies for the backlog in cases.  That's what happens when you elect a politician to a job that shouldn't be political.

I hope you'll remember that when you go "register" to serve on jury duty.