Friday, March 17, 2017

Kim Ogg's Flaming Dumpster Fire of a Month

We're barely past the Ides of March, and Kim Ogg is already having a month that would make Julius Caesar feel sorry for her.

First off, she began the month by getting blasted in the Houston Press for participating in her March 2nd fundraiser, hosted by David Temple attorney Dick Deguerin.

The very next day, her 1st Assistant, Tom Berg, inexplicably made comments to the media regarding the already-expunged case of prominent attorney Tony Buzbee.  This would seemingly be in violation of Art. 55.04 of the Code of Criminal Procedure, which states:
Art. 55.04. VIOLATION OF EXPUNCTION ORDER.Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.Sec. 3. An offense under this article is a Class B misdemeanor.
The D.A.'s Office seemingly brushed off this apparent law violation by claiming that the Expunction was not valid, and this is where Ogg's personal dumpster fire really started burning.
For those of you who don't handle criminal cases in Harris County, when a person wants a case expunged off their record, the first step they take is determining whether or not the D.A.'s Office will oppose it.  If the expunction is agreed upon, the process is reasonably smooth.  Generally, the Office has been pretty user friendly on expunction cases.  If the person is entitled to the expunction under the law, they agree.  The person who usually makes that agreement is the Office's General Counsel, Scott Durfee.

On March 8th, multiple rumors started flying from multiple sources that there had been large kerfuffle between the Ogg Administration and Scott Durfee overnight.  As per normal procedure, Durfee was the Office's representative who had agreed to Buzbee's expunction, following Buzbee having successfully completed pre-trial diversion under Devon Anderson's Administration.  

Apparently, Ogg was not amused with whatever agreement Buzbee had received and sought to undo it, despite the fact that the Office had already agreed to the expunction.  She allegedly had a Motion for New Trial filed regarding the Expunction, which is legally permissible.  However, the reports were that Ogg wanted Durfee to claim he had acted without authorization in agreeing on Buzbee.   Durfee, understandably, was reported to have refused.

What happened next is not clear.  There were rumors of an affidavit that Ogg wanted Durfee to sign and then varying reports over whether or not he had, in fact, signed it.  There were also reports that Durfee had resigned, or that he had been fired.  The fine details of what actually happened aren't clear, and as of this writing, it isn't even clear whether or not Durfee still works for the Office.

On to the next scandal . . .
Late last week, multiple reports also surfaced that three, young, female prosecutors had filed a sexual harassment complaint against one of the new, high ranking members of Ogg's Administration.  Apparently, an intermediary supervisor did the right thing and filed a memo documenting the allegations.  How Ogg will respond to the allegations remains to be seen.  I have heard rumors that the three females were called to the 6th floor and explained how they must have understood some things "out of context," however, that has not been confirmed.  
And finally, there is apparently a massive dissension in the ranks over an upcoming murder case that Ogg wants filed, against the advice of her upper echelon.  I'm still waiting to see how this one unfolds, but my understanding is that Ogg wants charges filed for publicity's sake, while several of her high ranking prosecutors don't believe the case can be proven and that there is a strong possibility that the soon-to-be accused is actually innocent.  
We shall see.
All of this, coupled with the fact that the D.A.'s Office has suddenly "run out of money" to pay for coveted intake shifts, adds up to a huge disaster.  Courthouse folks who have seen or spoken with D.A. Ogg lately describe her as stressed and overwhelmed.
With all this going on, the description is not surprising.
Keep your chin up, Kim.  Only two more weeks until April.

Tuesday, March 7, 2017

Episode Two: Attack of the Clowns -- a One Act Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston.  [INTERIOR] The Imperial Throne Room.  A shrouded figure peers over a desk, looking over important documents.  The door opens and an Imperial Officer shuffles in.  The shrouded figure looks up.

SHROUDED FIGURE:  What is it, Corporal Leitner?

CORPORAL LEITNER:  I'm sorry to interrupt you, Empress Ogg.  I know you are busy reviewing the Temple case.

EMPRESS OGG:  I'm not reviewing the Temple case, I'm looking at cases that I want to have Vice-Admiral Berg talk to the media about.

CORPORAL LEITNER:  Wait.  Aren't those the expunged cases?  I don't think we are allowed to speak about cases that are expunged.  I thought talking about an expunged case was a 3rd Degree Felony.

EMPRESS OGG:  Silence!  "Expunged" means "talk a lot about" in Latin.  Everyone who went to law school knows that, Corporal.  Hmm.  This Buzbee case looks like a good talking point . . .

CORPORAL LEITNER:  You are letting Vice Admiral Berg talk to the media?  Empress Lykos never let me talk to the media when I was Vice Admiral.

EMPRESS OGG:  Can't imagine why . . .

CORPORAL LEITNER:  What do you mean?

EMPRESS OGG:  Nevermind, was there something you needed, Corporal?

CORPORAL LEITNER:  Yes, your majesty.  We must talk about the Intake System for the Death Star.

EMPRESS OGG:  What about it?

CORPORAL LEITNER:  We can't afford it anymore.

EMPRESS OGG:  What do you mean "we can't afford it?"

CORPORAL LEITNER:  Well, apparently after you took over and did things the way you wanted, we failed to calculate a budget for the Intake System.

EMPRESS OGG:  Do we need it?

CORPORAL LEITNER:  Um, yes.  That is how we get the cases that are what keeps this building running.

EMPRESS OGG:  Dammit.  I barely have enough in the budget to pay for the fifteen Stormtroopers that I require to be guarding me at all times.

CORPORAL LEITNER:  Fifteen?  You have fifteen Stormtroopers on your security detail?  I don't think President Trump has that many people.  Have there been threats against you?

EMPRESS OGG:  No, but it looks rockin' cool.  Kind of like Beyonce when she did the Super Bowl.

CORPORAL LEITNER:  For thirty years, the D.A.'s Office had had someone working intake 24/7.  We can't just stop doing that.

EMPRESS OGG:  You're right.  Just tell the Jawas that they have to work intake for free as part of their jobs.

CORPORAL LEITNER:  Jawas?

EMPRESS OGG:  Jawas.  ADAs.  Whatever.  And let's just get one of our supervisors to just sit there and do nothing while they do all the work.  Somebody like Jabba.

CORPORAL LEITNER:  The Hutt?

EMPRESS OGG:  No,  Denholm.

THE INTERCOM ON EMPRESS OGG'S DESK BUZZES.  EMPRESS OGG HITS A BUTTON.

EMPRESS OGG:  Go for Kimbra.

VOICE:  Empress Ogg, Jar Jar Rogers from the Chronicle is here to see you for your interview.

EMPRESS OGG:  Send him in.

A SLIDING DOOR ENTERS, and JAR JAR ROGERS comes bouncing into the room.

JAR JAR:  Oh, Mooey, Mooey, Boss Ogg!  Meesa so happy for happy positive article writing time about you today!

EMPRESS OGG:  It is always so good to see you, Jar Jar.

JAR JAR:  Meesa so happy to be writing about bestest D.A. Ever!

CORPORAL LEITNER:  Are you brainless?

JAR JAR:  Meesa know how to write!

CORPORAL LEITNER:  The ability to write for the Chronicle does not make one intelligent.

JAR JAR:  Mooey mooey, Boss Ogg, peoples be saying yousa be up to no good.  They saya you going to dismissa David Temple because you big buddy with Datha Deguerin.

EMPRESS OGG:  Nonsense, Jar Jar.  That is just angry talk from the old Jedis that I got rid of under Order 38.

JAR JAR:  Dose Jedis useda be my friends.

EMPRESS OGG:  They are very bad people, Jar Jar.  They say very bad things about me.

JAR JAR:  So do the Jawas!

EMPRESS OGG:  Silence!  That's not the point!  The point is that I am launching very thorough investigations into those Jedis who might have said bad things about me.

JAR JAR:  Is that againsta the law?

CORPORAL LEITNER:  You would think . . .

EMPRESS OGG:  It needs a thorough investigation.

JAR JAR:  Like yousa investigating David Temple?

EMPRESS OGG:  Um, sure.

JAR JAR:  Meesa want to get a picture of you investigating David Temple file!  Can meesa get a picture with you and the file?

EMPRESS OGG:  Of course!

AWKWARD SILENCE

JAR JAR:  Where da file?

EMPRESS OGG:  Um,  I think right now I have it in Corporal Leitner's office.  Right, Jim?

CORPORAL LEITNER:  Yes, my lord.

EMPRESS OGG:  Very important that the Temple File be kept in a safe place.  That's why we have Corporal Leitner's weights sitting on it so that nobody moves it.

CORPORAL LEITNER:  That's right.

JAR JAR:  Me sees!  Only Big Jimbo be strong enough to lifta the weights offa the Temple File!

EMPRESS OGG:  Exactly, Jar Jar.  We wouldn't want anyone else to be able to look at it right?

JAR JAR:  That's why meesa and the Chronicle say you da bestest DA ever!

EMPRESS OGG:  And that's why I say you're the best newspaper reporter ever, Jar Jar!




Thursday, March 2, 2017

Why the Appearance of Impropriety Matters

Back in 2009, when I was first starting my career as a defense attorney after nine years as a prosecutor, one of the first courts I received an appointment in was the 338th District Court.  At the time the chief prosecutor in the 338th was Craig Still (who now works at the Public Defenders Office).  After I had read over the new case that I had just been appointed on, I went to discuss it with Craig.

When I started to hand him the case for him to review, he stopped me and politely pointed out that he was going to let his Two handle the case and he would not be involved.  He wasn't being rude.
The reason he didn't want to involve himself in any case I was handling was because Craig was (and is) one of my best friends.

Not that Craig would have ever done anything inappropriate regarding a case based on our friendship.  Nobody who knows him or his reputation in the courthouse would have ever accused him of such a thing.  However, Craig was savvy enough to realize that there was no need to create even an appearance of impropriety.

And that was just on a crack pipe case.

I've thought about that moment in the 338th many times over the past few months as I've watched Kim Ogg steadfastly refuse to remove herself and the Harris County District Attorney's Office from the handling of the David Temple Murder case.  Maybe Ogg's motives are pure.  Maybe they aren't.  Whatever her reasoning is, our new District Attorney certainly has not helped herself in avoiding an obvious appearance of impropriety.

The purpose of this particular post isn't to address whether or not David Temple is guilty of murder.  Volumes have been written about the facts of the case itself.  I would suggest reading Kathryn Casey's Shattered if you want to familiarize yourself with the details, or some of Craig Malisow's articles about the case in the Houston Press.  I will freely admit that there are many who are much more knowledgeable about the details of the murder than I am.

Additionally, the purpose of this post isn't to address what Kelly Siegler did or didn't do during the trial that resulted in Temple's murder conviction in 2007.  The Court of Criminal Appeals has ruled that Temple deserved a new trial and no matter what happens from here on out, Kelly Siegler won't have any involvement in the case.  For all intents and purposes, the case is at Square One from a legal standpoint.  Although advocates for David Temple like to drop Kelly's name in hopes of inciting some level of outrage on David's behalf, the reality is that she is no longer relevant to the future of the case.

The ball is completely in Kim Ogg's court.  Unfortunately, she seems to be making every effort to demonstrate that the one person in Harris County who shouldn't be handling the case is Kim Ogg.

As Kim Ogg took office on January 1st, the Temple case was a very hot topic.  The Court of Criminal Appeals had just reversed the case in late November and Ogg had already raised eyebrows with her earlier announcement that Temple Defense Team members, John Denholm and Steve Clappart, would be joining her administration.  That's the two of them here with Casie Gotro and Stan Schneider, receiving an award for their work on Temple's defense team from the Harris County Criminal Lawyer's Association.

On January 1st, Ogg gave her inauguration speech, where she added fuel to the impropriety fire by thanking Temple's trial counsel, Dick DeGuerin, for the influence he had been in her own legal career.  DeGuerin had been calling for Temple's case to be dismissed from the moment he learned it had been reversed.

Ogg was also not done any favors with Temple attorney Stanley Schneider talking to the press and explaining how Ogg would be proceeding with the case.  Schneider expressing how "comfortable" he was with whatever her decision would be sounded as if he already had a strong indication of what that decision would be.

Additionally, Ogg issued an edict about a month ago that the Office would recuse itself from all first degree felony cases previously defended by anyone in her upper echelon (which would presumably include John Denholm).  Oddly, the Temple case was mysteriously left out of that recusal.  Ogg had initially told the Houston Chronicle that she would have a team looking at the case, but later retracted that statement, saying she and only she would review the case.  That's a pretty daunting task considering she would presumably be reading an enormous offense report, a full trial transcript, listen to multiple witness statements, not to mention re-interview those witnesses, read a writ hearing transcript and review all the corresponding documents associated with the case.  And further, it would be expected that she would also talk to the detectives involved in the case and (gasp!) probably even the original prosecutors.

The most blatant appearance of impropriety came last week when it was revealed that DeGuerin was headlining a fundraiser for Ogg on the eve of Temple's next court date -- a date when Ogg was scheduled to announce her decision about retrial.  In addition to DeGuerin, former Temple attorney Paul Looney was also on the host committee.  This was so egregious that even Brian Rogers was forced to write a mildly negative article about Ogg in the Chronicle.  Of course, in typical Brian Rogers style, he buried the mention of the controversial fundraiser somewhere around the tenth paragraph of his article.

The encouraging news in Brian's article was that Ogg was still open to the idea of recusing the Office from the case.  She should.  I've heard from former prosecutors, judges, defense attorneys, and prosecutors and judges in other counties, who are astounded that she hasn't done so.  I've even heard from members of Ogg's own upper Admin who have expressed their belief that the Office should recuse itself.  And by the way, I'm talking about upper Admin that she brought in with her on January 1st.

I'm hopeful that Ogg is finally starting to realize what message she is sending to the public about her definition of Justice:

It is a message that there will be no checks and balances when it comes to what Kim Ogg wants to do with her administration.

It is a message that Kim Ogg has no interest in the advice of the legal community around her.

It is a message that the her concerns for the family members of victims of violent crimes are not very high on her priority list.

It is a message that the wealthy client who can afford a lawyer like Dick DeGuerin can get special treatment.

It is a message that the right connections can make even a murder case go away.

Some defense attorneys are rallying behind the idea of Ogg biting the bullet and just dismissing the case, because, you know, "Kelly Siegler."  Others are pointing out that the Disciplinary Rules which govern attorneys in the State of Texas do not require Ogg to recuse herself.  Many have correctly pointed out that donations from criminal defense attorneys are commonplace for judges and elected District Attorneys.

But the David Temple Murder case isn't just any case.  And Dick DeGuerin isn't just any defense attorney.

I started this blog post a couple of days ago, but I didn't have time to sit down and finish it until tonight, 6:45 p.m. on Thursday, March 2, 2017.  As I wrap up this post, the family of Belinda and Erin Temple sit at home, wondering whether or not the man who was once convicted of murdering their loved one will even face trial again.

And the District Attorney who will make that decision is at a party in her honor, hosted by that same man's defense attorney.

Is there really any question as to what kind of message that sends?

Tuesday, February 21, 2017

Not "If" but "When:" A Lesson in Impropriety

As the Harris County District Attorney's Office begins to settle in under the new Administration of Kim Ogg, the biggest question still left open is how Ogg will dispose of the murder case against David Temple.  Temple was granted a new trial in November of last year, following his 2007 conviction for the murder of his pregnant wife, Belinda.

Since Ogg has taken office, I have written several posts arguing that the Ogg Administration should recuse Harris County from further involvement in the case due to multiple conflicts of interests.   One of the more notable conflicts that Ogg has is that she hired a former member of Temple's defense team, John Denholm, as part of her upper Administration.  In addition to Denholm, she also hired former private investigator, Steve Clappart, as her Chief Investigator and he also did defense work on Temple's case.

This picture shows the two of them at a press conference with the rest of Temple's defense team. For those of you who might not know Denholm and Clappart, they are the two on the far right in the picture below.



However, despite my arguments (as well as Mark Bennett's and Kathryn Casey's) to the contrary, Ogg has steadfastly refused to recuse the Office from the case.

The refusal to recuse defies logic.

Several weeks ago, Ogg recused the Office from all other first degree felonies handled by anyone in her Administration.  The last I looked, Murder was still a first degree felony and John Denholm was still in her upper Administration.   Surely, if the case is as weak as Ogg's mentor Dick DeGuerin claims it is, any other prosecutorial agency would have no problem arriving at a just conclusion, right?

So why, exactly, is D.A. Ogg so damn attached to the Temple case?  Why on earth does she not simply ask another prosecutorial agency (or an attorney pro tem) to handle the investigation?  Why is she so unconcerned about the massive appearance of impropriety that she is creating for herself by not letting go of the case?

The seemingly obvious answer to the skeptics amongst us is that D.A. Kim Ogg promised DeGuerin and the rest of Team Temple that she would make the Temple case go away.  The only way she can guarantee the case's demise is if she maintains solitary control over it.  Farming it out to any other agency or pro tem prosecutor would jeopardize that.

Those skeptics amongst us also believe that all of this "review" by Kim Ogg is nothing more than her attempt to wait an appropriate amount of time before dismissing the case and then subsequently claiming that she spent that time reading transcripts, offense reports, lab reports, and talking to witnesses.

For those skeptics amongst us, the question isn't if Kim Ogg dismisses the Temple case.  It is simply a matter of when.

There are some new indicators that the answer to when Ogg dismisses the Temple case is "Very soon."

The law firm of Musick and Musick shrunk significantly on January 1st, when attorneys JoAnne Musick and John Denholm, as well as private investigator Steve Clappart, left the firm to join the D.A.'s Office.  Former police officer and former Assistant District Attorney Earl Musick seems to be the only member of the firm still practicing defense.


In Earl's spare time, he does a little writing for the City of Houston Police Officer's Union website, and it looks like an article that Earl wrote in advance for their March newsletter has already hit the internet.
In the article, Earl extolls the virtues of his former associate, John Denholm, and investigator, Steve Clappart, while pointing out how clearly innocent David Temple must be.  He regurgitates the information from Clappart and Denholm's ridiculous warrant and levels capital murder accusations at a then-teenage boy.

Obviously, Earl is free to write whatever he wants about the case, but the timing of the article sure does seem to coincide with Temple's next court date on March 3rd.  At that court date, the Ogg Administration is going to have to make some kind of announcement about what they are going to do with the case.  Given Earl's close ties to Ogg's upper Administration, a logical mind does have to wonder if he is privy to something that the rest of us only assume to be true.  Given the target audience for Earl's article (former and active Houston Police Officers), he sure does seem to be explaining why dismissing the case will be a great idea.  Generally, police officers don't like to hear about murder cases getting dismissed.

I can't help but wonder if the article got released a little prematurely.

Perhaps Earl's article doesn't really bug the reader as much as it bugs me.  Well, then, how about this little item that a friend sent to me today?


Temple's trial attorney, Dick DeGuerin, is co-hosting a very high dollar fundraising reception for the sole person in charge of his most high profile case ever, the night before that same client has court?  Oh, and by the way, before DeGuerin was Temple's lawyer, Temple was represented by co-host Paul C. Looney.

Seriously?  I mean, if we are going to be this shamelessly blatant, why don't we just put David Temple himself on the host committee?

Although Kim Ogg doesn't seem to be too concerned about the appearance of impropriety, surely the people in her Administration are.  Is there really someone on her support staff advising Ogg that keeping that case is proper?   

I've tried to remain supportive of the Ogg Administration.  I like many of her hires.  I like a great many of her policies.  But if she dismisses the case against David Temple without letting another single soul look at it, all of her progressive moves will be overshadowed by what, by all appearances, is a shamelessly dirty decision.

It would be one that her reputation would never recover from.

Saturday, February 18, 2017

Jeff Ross's New Website

My friend and fellow defense attorney, Jeff Ross, stopped me in the hallway the other day to let me know that he had joined the Blawgosphere recently and he asked me to take a look at it.

I checked it out and for those of you in and out of the Harris County CJC, I highly recommend it.

Jeff's website is called "Show Me the Justice" and can be reached by clicking here.

Jeff is taking on the job of keeping track of verdicts in the courts and he's welcoming comments (including those dreaded Anonymous ones) on Judges, Prosecutors, Defense Attorneys, and Police Officers.

Because Jeff is an extremely good guy, he's only posting the name of the winning side of the jury verdicts.  The website isn't designed to embarrass anyone.  It also doesn't name anyone who is being complained upon.

All in all, it is an entertaining website.  You should check it out.

Wednesday, February 15, 2017

Kim Ogg's Letter to the District Courts

Most people who read this blog know that I have been a big fan of the majority of new hires under District Attorney Kim Ogg's Administration.  Most of these hires, however,  came from the Defense Bar, and that has created a logistical issue on a sizable amount of cases.

When a defense attorney leaves his or her defense practice, it is extremely difficult to do so with an instantaneous "clean break."  Cases pend for varying amounts of time and if an attorney is leaving his or practice to join the prosecution, the odds are that there will still be some cases pending at the time of that transition.

Since said defense attorney is leaving his or her practice to join the District Attorney's Office (aka "the other side"), it creates a per se conflict of interest for that D.A.'s Office to remain the entity in charge of prosecuting the accused.  Whether that defense-attorney-turned-prosecutor actually knows any material information that would be damaging to a former client's case is irrelevant.  The appearance of impropriety dictates that the D.A.'s Office recuse itself from that case.  

About a month ago, the Ogg Administration announced that it would automatically recuse itself from any First Degree Felony cases previously handled by the Ogg Law Firm, Vivian King, David Mitcham, Nathan Beedle, Joanne Musick, Jim Leitner, John Denholm or any other member of her Administration.  Second Degree Felony cases or below were to be handled on a case by case basis, largely dependent upon the wishes of the Defendant.  Oddly enough, the First Degree Murder Case of David Temple seems to somehow have been exempted from this, despite John Denholm's work as an attorney on the case.  I'll write more on that later.

Based on the Office's decision to recuse itself from those cases, Attorney Pro Tems had to be appointed to handle their prosecutions.  

The judges of the individual courts signed off on the Harris County District Attorney's Office's self-recusal, and were then tasked with appointing attorneys pro tem to handle the cases.  To my knowledge, almost all of those appointed to the pro tem job came from the Defense Bar.  I was appointed on several cases in one court.  

Many of the judges, however, pulled from the pool of the 38 former prosecutors whose contracts were not renewed by the Ogg Administration.

This apparently did not sit well with District Attorney Ogg.

According to credible reports, Ogg sent a letter to Presiding Judge Susan Brown, requesting that those 38 former prosecutors not be utilized as attorney pro tems on these cases.  Ogg's reasoning was that these former prosecutors might improperly focus their outrage for losing their job on the defendants.  
(NOTE:  Judge Brown shared Ogg's concerns with all of the District Court Judges, as requested by Ogg.  Neither Judge Brown nor any other Judge provided me with any of this information.  However, this information quickly spread across the CJC.)

There are several things improper about D.A. Ogg's Letter to Judge Brown:

First and foremost, when the District Attorney's Office recuses itself from a case, it has absolutely no say or influence in who handles the case after that recusal.  None.  Look at it like a divorce case.  A husband and wife are absolutely free to divorce one another, but they don't get to pick who the other marries after them.  

Ogg's attempt to influence who prosecutes the case after recusal negates the entire purpose of recusal.  The appearance of impropriety is a two-way street.  The Office doesn't want to put itself in the position of appearing to be either too harsh or too lenient.  That's why the Office simply washes its hands of the case and walks away.  Defendants don't get to pick their prosecutor, and neither does a recused D.A.

Second, Ogg's letter expressing her concerns about the prosecutors she fired whose contracts she did not renew belies a paranoia that seems to be consuming her.  Ogg's anxiety about former prosecutors plotting against her administration has risen to levels that make Pat Lykos look like she was zoned out on Xanax.  From her bizarre pre-inauguration press conference where she wrongfully accused Justin Keiter, Gretchen Flader and Nick Socias of undermining her future administration's credibility, to letting the leadership of HCCLA know that she was investigating some former prosecutors for unethical behavior, Ogg is really obsessed with the people she let go.

Trying to keep them from being appointed to do a job by an elected Judge who believes they are capable of doing the job is insulting to both the Attorney Pro Tem and the Judge.

And finally, the job of the Attorney Pro Tem is the same as the job of a Prosecutor:  to see that Justice is done.  It isn't to give a sweetheart deal to one of the Upper Administration's former clients.  They are supposed to fulfill the role of prosecutor in this adversarial system.  If they cross the line in how they handle their job, it is the duty of the Defendant's new attorney to bring that to light.  It isn't the job of the recused D.A.'s Office.

Perhaps District Attorney Ogg should spend less time worrying about what all of these Attorney Pro Tems might do with their prosecutions, and focus a little more time worrying about her own appearance of impropriety.

Tuesday, January 24, 2017

Good Additions to the Ogg Administration

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

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

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

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

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

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

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

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

Saturday, January 14, 2017

HCCLA and the Former Prosecutor

As I've always said (and truly believed), Harris County, Texas is home to some of the greatest criminal litigators in the Nation -- on both the prosecution and defense side of things.  Therefore, it stands to reason that Harris County would also be home to one of the best (and largest) criminal defense lawyers' association in the form of the aptly named Harris County Criminal Lawyers' Association (HCCLA for short).

Historically, HCCLA has been a highly respected organization with a Who's Who of distinguished and prominent criminal defense attorneys, as well as Lloyd Oliver, on the list of past presidents.  They sponsor numerous CLE seminars that are free to members, have a Strike Force to help attorneys who find themselves on the wrong side of a contempt charge, and a Christmas Party that is the social event of the Criminal Justice Season.

And then there is the Listserve.

In theory, the Listserve is a message board for attorneys to assist each other with legal issues or to ask for advice.  Oftentimes, that actually is what it is used for, and longtime defense attorney Troy McKinney serves as HCCLA's greatest asset when it comes to giving outstanding legal advice to those who seek it.  The Listserve is more often used for gossiping and complaining about prosecutors and judges, and although everyone on the Listserve is sworn to utter secrecy, information leaks out of it like water through the Titanic.

When I left the D.A.'s Office, Mark Bennett and Tyler Flood (who is, coincidentally now HCCLA's President) strongly encouraged me to join the Group.  I did, and I was glad that I did.  I became involved and after a year or so, I ran for the Board and won.  A year or so after that, incoming President Todd Dupont asked me to run for Secretary, which I did and also won.  Despite having a baby on the way and dealing with chemotherapy, I did the best I could with the position.  I co-hosted HCCLA's weekly television show, Reasonable Doubt.  I even planned a CLE from my hospital bed with my then-friend and President-Elect Carmen Roe sitting in the room, helping me.

But my position on the Board didn't sit well with some of the more senior members of HCCLA.  One in particular really didn't like me working as a legal consultant on Cold Justice.   When I ran for Vice President the following year, my good friend Carmen and some others made sure I had opposition.  Incoming President Roe wrote a mass email encouraging people to vote for Mark Bennett over me.  Somehow, I wasn't included on the e-mail and didn't find out about it until somebody else told me.  To this day, I've never felt more betrayed by a closer friend.  We haven't spoken since.

Mark won the election, and I was the first to congratulate him.  I then resigned from HCCLA over his encouragement not to.  I knew it looked like sour grapes, but I just couldn't bring myself to pay membership dues to an organization run by Carmen Roe and others who clearly didn't want me involved in it.

That was three years ago.  I didn't write about my reasons for leaving then.  I still thought that HCCLA was a good organization.  It just wasn't for me -- clearly.  Despite my personal experience, I still encouraged new criminal defense lawyers to join.

But I was reminded of my negative experience with HCCLA this week after the organization's treatment of recent HCDA alum, Nathan Hennigan.

Hennigan, who was one of the 38 prosecutors fired not offered positions under the Ogg Administration, was vocal in the wake of his termination.  He was a senior prosecutor and a District Court chief with a good reputation with the vast majority of the Defense Bar. Shortly after Nathan's termination, the hosts of Reasonable Doubt invited Hennigan to appear on the show and share his thoughts.

The next day, the hosts told him they had to rescind their invitation because someone high up in HCCLA didn't think he needed to be on the show.  The reason he was given at the time was that he wasn't an actual member of HCCLA and therefore their rules prohibited him from being on the show yet.

Of course, that whole thing about having to be a member of HCCLA to be a guest on their show is a bunch of crap.  I should know.  Not only was I one of the hosts on the show for a good chunk of time, I was also invited to be a guest on the show two weeks ago.  As noted above, I'm not a member, either.

Hennigan applied to become a member of HCCLA and his membership came up for a vote before the Board of Directors this week.

His membership was rejected.  When he shared the rejection on his Facebook page, the CJC community went nuts.  Several Board members posted that they had voted for him, although nobody gave any details as to what had happened.  Other members expressed outrage that Hennigan's membership hadn't been approved and encouraged him to reapply.

Obviously I wasn't there, but as I mentioned before, confidentiality within HCCLA is about as leak-proof as the Titanic.  There has been word that a senior defense attorney sent one of his lackeys to convey the message that if Hennigan were granted membership, the senior defense attorney would quit the organization (God forbid).  What happened after that is anybody's guess.

The thing that is interesting about this is that nowhere in HCCLA's Mission Statement does it mention that it only helps defense attorneys that are universally loved.


And apparently, in HCCLA, some members are most definitely more equal than others.

At the end of the day, there are plenty of us who are not members of HCCLA that are doing just fine on our own.  That doesn't mean it isn't a good organization, but it isn't critical to survival.  The Texas Criminal Defense Lawyers' Association offers outstanding support and help like HCCLA does, just without the petty backroom drama.  The Houston Bar Association also has a drama-free Criminal Law section.  As of this writing, my understanding is that President Flood is much more concerned about figuring out how the details of the Hennigan Vote got leaked rather than the larger issue of why one attorney gets to dictate membership.

Ultimately, I'm not sure why any former prosecutor would want to be a part of HCCLA if this is going to be the example the organization sets. 


Monday, January 9, 2017

Kathryn Casey's Letter to Kim Ogg

In case you missed it, on Friday, the Houston Chronicle ran an open letter from True Crime writer, Kathryn Casey, to Harris County District Attorney, Kim Ogg.  Casey, author of the book Shattered which profiled the Temple Case, reached out expressing her concerns with the D.A.'s Office refusal to recuse itself from the case.

The article is worth a read for a couple of reasons.  First, it contains the entirety of Casey's letter, in which she logically rebuts the allusions that Team Temple has been making about having "proof" that the time frame involved with the case exonerates Temple.  Second, it clearly articulates why there is such a tremendous appearance of impropriety if Ogg doesn't recuse the Office.

Casey, who attended the trial, has a much better grasp of the details of the case than I do and she also can't be accused of having any personal stake in the outcome.  She is writing based on logic.

Unfortunately, it doesn't appear that Ogg is listening to anyone other than Team Temple when it comes to how to handle the case.

Friday, January 6, 2017

Episode One: The Phantom Kimness - A One Act Sci-Fi Play

SCENE:  A small Y-Wing transport ship flies toward a Space Craft Base.  [INTERIOR] A human inside a healing Bacta tank is awakened by associate droids.

DROID:  Lord DeGuerin, Admiral Schneider has arrived.

DEGUERIN:  Send him in, Jim.

The DROID retreats through the doorway, as ADMIRAL SCHNEIDER enters, and kneels.

SCHNEIDER:  Lord Vade . . .

DEGUERIN:  DeGuerin.  It's Lord DeGuerin.  This blog doesn't have the money to pay royalty fees.

SCHNEIDER:  Oops.  Sorry.  Lord DeGuerin.

DEGUERIN:  Rise, Admiral Stanley.

SCHNEIDER:  You wanted to see me, your worship?

DEGUERIN:  Yes.  You've been making some statements to Jar Jar . . .

SCHNEIDER:  Binks?

DEGUERIN:  No, Rogers.  With the Chronicle.

SCHNEIDER:  I think his name is Brian.

DEGUERIN:  Whatever.  Anyway,  you've been making statements about the Temple case.

SCHNEIDER:  Yes!  I thought with Empress Ogg finally taking over . . .

DEGUERIN:  Silence!!

SCHNEIDER:  Yes, my lord.

DEGUERIN:  You made a lot of statements to Jar Jar.

SCHNEIDER:  Brian.

DEGUERIN:  Whatever.  You made a lot of statements to the Houston Chronicle about Empress Ogg's plans regarding the Temple case.

SCHNEIDER:  Yeah, I basically told them how she was going to spend the next couple of months acting like she was really thinking hard about what to do and then dismiss it.

DEGUERIN:  Fool, what part of "Phantom" in Phantom Menace do you not get?

SCHNEIDER:  I don't understand.

DEGUERIN:  It is supposed to be a secret, you imbecile.

SCHNEIDER:  It is?  I thought when she hired Clappart and Denholm that we were all totally out in the open . . .

DEGUERIN:  Silence!

SCHNEIDER:  Sorry!

DEGUERIN:  Empress Ogg does not wish to reveal herself to the Je --

SCHNEIDER [Interupting]:  . . .  General public (remember licensing).

DEGUERIN:  Oh.  Thank you.  Yes, General public.  She does not wish to reveal her plans to the general public yet, or there may be dissent.

SCHNEIDER:  Dissent?  Why would there be dissent?  Why would anyone fail to support the Empress if she were to dismiss the Temple case?

DEGUERIN:  Apparently, there are some fools who believe his case should be retried.

SCHNEIDER:  Have we not vilified Siegler enough?

DEGUERIN:  Of course we have.

SCHNEIDER:  What about the alternative theory of pinning it on the disgruntled high school children?

DEGUERIN:  That was a more foolish idea than adding Ewoks to Return of the Jedi.

SCHNEIDER:  But we had General Gotro add Finding 37 . . .

DEGUERIN:  And she got caught.  That was foolish.

SCHNEIDER:  I told her not to do it.

DEGUERIN:  I thought you said it was an accident.

SCHNEIDER:  Whatever.  Bygones.

DEGUERIN:  The fact of the matter is that we must continue to operate in complete secrecy.  No one can know what we are doing on the Temple case.

SCHNEIDER:  I'm pretty sure everyone knows at this point.

DEGUERIN:  Silence!  We have the time to make this all go away after we are done.

SCHNEIDER:  But the Empress said in her campaign ads that she was here for the victims . . .

DEGUERIN:  She said she would never jail a rape victim.

SCHNEIDER:  That's what I mean.

DEGUERIN:  This isn't that type of case.

SCHNEIDER:  Oh.  But what about other victims?

DEGUERIN:  We've made the phone number for Victim Witness unlisted.  It will be another three and a half years until the next election . . .

SCHNEIDER:  Wait, I forgot that she has to run for re-election.

DEGUERIN:  It's okay.  So has she.

The One Woman Review Team

Contrary to initial reports in yesterday's Houston Chronicle that Kim Ogg would be presiding over a review team consisting of prosecutors Andrew Smith and Donna Cameron, as well as Temple Defense Team Surrogates, John Denholm and Steve Clappart, the paper is now reporting that District Attorney Ogg will be reviewing the Temple Case solely by herself.

Interesting choice.  The reason cited by Ogg is that she needs to review it because of the controversial actions taken by then Assistant District Attorney, Kelly Siegler.

Unfortunately for Ogg, that makes absolutely zero sense.

The Court of Criminal Appeals has already reversed the case and sent it back for retrial after evaluating Siegler's actions on the case.  As I noted in my last post, she is no longer a factor in what happens on the case from here on.

If there is sufficient evidence to proceed on the case, then it should proceed.  If there is not, then it shouldn't.  Plain and simple.  Unless Team Temple wants to make the argument that Kelly Siegler was the actual killer, there is no longer any involvement that she has in the case.

So, why would Kim Ogg keep it herself?

Well, as the elected District Attorney she certainly has that right, I suppose.  However, it sure seems suspicious.  It seems even more suspicious when you have Temple Defense Team Leader, Stanley Schneider, acting as Ogg's spokesperson.

Schneider said he thinks it will take her [Ogg] at least two months just to read all of the information.
"And then comes the hard part, she has to digest it all," he said.  "She has to come to her own conclusions."
Schneider said he and Temple are comfortable with Ogg taking the time to personally review the file.
"If she's comfortable with it, I'm comfortable with it," he said.
No mention was made of whether or not Stanley kept a straight face during the interview.  Mental note:  never rob a bank with Stanley.  Why on earth is he so well informed on everything that Ogg will be doing?  It's almost like they are on the same side or something.

Here's a small tidbit, when the Defense Attorney is telling you everything that the District Attorney is going to be doing, that usually means that the District Attorney is doing everything the Defense Attorney wants her to be doing.

Think about it.  So, Stanley and Temple are "comfortable" with whatever Kim decides, are they?  Will that be true if Kim decides that Temple needs to just plead guilt to murder?

Of course not.

Stanley and Temple declaring their high level of comfort with Ogg's decision seems to strongly indicate that they already know what that decision is.  Ogg's rejection of having a panel review means that there will never be the unpleasant possibility of one of the panel members later telling somebody what factors went into making a controversial decision.

By acting as a One Woman Review Team, Ogg can simply do whatever she pleases, and then give a stoic, Harry S Truman-esque speech about how the Buck Stops With Her, and she will shoulder criticism in the name of Justice.

That would be more impressive if any of us actually believed she was reviewing it with an open mind.

As I, and others, have noted, Ogg can avoid the massive massive massive massive appearance of impropriety by just asking another agency to review the case in her stead.  She has now rejected that.

Kim seems more than willing to tarnish her legacy before it begins.

Her One Woman Review Team absolutely reeks of the fix already being in.


Tuesday, January 3, 2017

Kim Ogg and the David Temple Decision

David Temple returns to court tomorrow morning (January 4th) in the 178th District Court to check on the status of charges against him for murdering his 8-month pregnant wife, Belinda, in 1999.

The courtroom will doubtlessly be packed with media looking for their first glimpse of who will be handling the case on behalf of the Harris County District Attorney's Office under the brand new Kim Ogg Administration.  They will also be looking to see if the tone of tomorrow's setting gives any clue to what the Ogg Administration plans to do with the case.

In the wake of the original Findings of Fact handed down by visiting Judge Larry Gist, Temple's attorneys, Casie Gotro and Stanley Schneider, immediately began lobbying then-District Attorney Devon Anderson to recuse the Harris County D.A.'s Office from handling the case.  Things have changed substantially since Gotro and Schneider made that request.  The incoming Ogg Administration elected not to renew the employment contracts of every single prosecutor who handled anything involving the David Temple case -- with the exception of prosecutor Andrew Smith.

As almost all of the prosecutors who worked on David Temple's case were swept out of the Office, the Ogg Administration simultaneously ushered in three key figures who were central to Temple's defense:  Jim Leitner, Steve Clappart, and John Denholm.  In doing so, the Ogg Administration seemed to be very open to the idea of not retrying David Temple for shooting his pregnant wife in the head with a shotgun, killing her and their unborn child.

However, the fact that the Ogg Administration brought John Denholm on board is the exact reason why now the Harris County District Attorney's Office should recuse itself from the David Temple case and let another prosecutorial agency handle it.  The reasoning is quite simple: although Leitner and Clappart had involvement in the Temple defense, they weren't acting as agents of Temple's defense team -- at least, not on paper.  Although Clappart certainly didn't mind standing next to his friend Denholm at the Temple Defense Team press conference, he was technically acting as an investigator for the D.A.'s Office under the Lykos Administration.


Denholm, however, is a different matter.  Denholm actually acted as an agent for Dick DeGuerin in defense of David Temple.  How do we know that?  Because Steve Clappart was nice enough to include that information in his highly questionable Capital Murder warrant for Cody Ray Ellis.  

Hell, Denholm is such a member of Team Temple that he filed a grievance with the State Bar against me for blogging about the case.  The grievance was rejected.

Since Denholm was a party to the Temple Defense Team, his new employer, the Harris County District Attorney's Office, should be recused from handling any further matters regarding the Temple prosecution.  There is a per se conflict of interest.  By way of example, when Jim Leitner left his defense practice in 2009 to join the Lykos Administration, the Office voluntarily recused itself from the cases he had handled due to that same type of conflict of interest.

In this instance, however, don't look for Schneider, Gotro or DeGuerin to be pressing for the Office to recuse itself under Kim Ogg.  They couldn't be more pleased to have her in the driver's seat.  What could be more favorable to Team Temple than hiring three people into the upper Administration who were on record as believing Temple was wrongfully accused?  Even more encouraging, Ogg even gave a shout out to DeGuerin in her inauguration speech.  

So far, Kim Ogg has expressed much more interest in prosecuting former prosecutors who angered her than prosecuting a man charged with murdering his pregnant wife.   

I anticipate that Team Temple will argue with all its might that there is nothing wrong with the D.A.'s Office continuing on with the Temple case.  They will do everything they can to invoke the image of Kelly Siegler and an unfair trial as they lobby for a dismissal.  Unfortunately for Temple, a reversal is not the same thing as a dismissal.  Cases get reversed and sent back for retrial on a fairly routine basis.  They don't simply go away because an appellate court reversed them.

The irony is that now David Temple must proceed without the specter of Kelly Siegler.  She is no longer a factor in the Temple Trial.  The case was reversed in a narrowly split decision, and now Team Temple has to argue the case itself on its own merits.  Their efforts to paint Kelly as the true villain in the case are no longer relevant.  

Nowhere in their decision (or the Gist Findings of Fact) did the Court of Criminal Appeals indicate that Temple was wrongfully convicted.   Nowhere in that decision (or the Gist Findings) did anyone indicate that the ludicrous Capital Murder warrant that Clappart and Denholm wrote was credible.  Nowhere in that decision did it say anything other than David Temple was entitled to a new trial.

The State of Texas vs. David Temple is back to Square One.   


All the evidence is still there and part of the record -- even those witnesses that DeGuerin would later regret calling to the stand on behalf of the defense (including David Temple, himself).  All of that is available to the prosecution for retrial.  The first time the jury heard that evidence, they had no issue in quickly convicting Temple and sentencing him to Life in Prison.  The chance that another jury would do the exact same thing is substantial -- with or without Kelly Siegler.

There is a reason that Team Temple is begging that the case just be dismissed.  What's a free murder amongst friends?  

Dismissing the case against David Temple would be an absolute dereliction of duty on the part of the new Administration.  Jim Leitner, Steve Clappart and John Denholm's roles in the upper hierarchy would scream of impropriety.  It would send a message of Justice truly being for sale.  

All of this could be avoided by simply recusing the D.A.'s Office and asking the Attorney General's Office to handle the case instead.

The Ogg Administration should recuse itself from the David Temple case, not out of a duty to David Temple, but out of a duty to the citizens of Harris County.  The history of her Administration began being written on January 1st, and how she responds to this case will cast a long shadow.  As she stated in her inauguration speech, she owes many people many things for her success.

But she owes the citizens so much more. 

And that includes Belinda and Erin Temple.


Friday, December 30, 2016

The Ogg Administration [Minor Edit]

After many (mostly accurate) rumors, incoming Harris County District Attorney Kim Ogg announced the personnel for her upper administration today.  With some glaring exceptions, for the most part the choices are pretty good.   From the comments that are already coming in (before I had the opportunity to write this particular post), it is clear that there will be some criticisms, but the following are my personal opinions of the individual hires:

Vivian King -- Chief of Staff  To begin with, Chief of Staff is a relatively new position within the Harris County District Attorney's Office, but it makes sense to have one.  It wasn't there when I was there, but it has been brought to my attention that the position was created under the Anderson Administration.  Kathy Braddock has held the position since it was created, which also makes sense because Kathy is awesome.  The First Assistant position has traditionally been a de facto Chief of Staff position, but given the logistical duties typically handled by the First Assistant (i.e., dealing with the budget and Commissioners' Court), it makes sense to create a Chief of Staff who operates without having to deal with those particular duties.

With that in mind, I think Vivian King is an outstanding choice.  Vivian, who was last seen starring in Sisters-in-Lawis a respected trial lawyer who has an extensive trial resume.  She's defended death penalty cases with an impressive record, and has the street cred to function as the head of an Office where trial ability is vital.  I tried a case against Vivian during my prosecutorial days and she was a talented and pleasant adversary.  She will also be a reasonable mind when it comes to making decisions for the office.  I was surprised to see her leaving the Defense Bar, but she'll be a great addition.

David Mitcham --  Interim First Assistant and Trial Bureau Chief   I was completely surprised to see Dave going back to the District Attorney's Office after a multi-decade absence.  I'm a big fan of his and have respected him during my time as both a prosecutor and a defense attorney.  Like Vivian, he also has no fear about going to trial, which will serve the Office well in his role as Trial Bureau Chief.

I am mildly confused at the blending of the roles of Trial Bureau Chief and First Assistant, and I'm speculating that the "Interim" part of this indicates that this blending is only temporary.  If it is temporary and a full time First Assistant is coming at a later date, it begs the question of who that First Assistant is going to be.  It could be a defense attorney who needed just a little more time to wrap up his or her cases before joining the Office.  That's just speculation on my part, though.

Hon. Barbara Hartle -- Administrative Bureau Chief  I don't know anything about Barbara Hartle other than what I've seen from briefly scanning the internet.  It appears that she is a Municipal Court Judge.  The title of Administrative Bureau Chief is also a new one to me, so I'm not entirely sure what that is all about.  It sounds like something resembling what Hannah Chow did under the Lykos Administration.

Yvonne Q. Taylor -- Training Coordinator  Again, this is not a name I'm familiar with, and it appears she was also pulled from the City of Houston Municipal Courts. It doesn't sound like we will be seeing her in court much.

JoAnne Musick --  Sex Crimes Unit Chief  Another surprising addition to the Ogg Staff was the return of former prosecutor and two-time President of the Harris County Criminal Lawyers' Association, JoAnne Musick.  Since leaving the Office over ten years ago, JoAnne has been an extremely vocal champion of all things Criminal Defense.  Most people I know were very surprised to see her leaving the Defense Bar.

JoAnne and I aren't exactly friends, but I respect her ability and dedication to whatever project she tackles.  When she was with the Office, she was one of the ones who always tackled extra projects in an effort to make the Office better.  She tackled being a Defense Attorney with the same gusto.  She always kind of reminded me of the kid who turned in her school Science Project the day after it was first assigned.

Sex Crimes Unit Chief will also be a new position with the Office.  I am curious as to whether or not it will incorporate child sex crimes and adult sex crimes under the same Division.

Carvana Cloud -- Family Criminal Law Unit Chief  This is probably my favorite hire under the Ogg Administration, because I'm a Super Fan of Carvana.  She and I have been friends since she started at the Office and she earned my respect with the way she handled her poor treatment under the Lykos Administration.  Carvana is well liked and highly respected by her peers on both the prosecution and the defense.  My only complaint about this is that I wish she had an even higher position within the Office.

Nathan Beedle -- Misdemeanor Division Chief  This one was also a surprise and a blast from the past.  Beedle was a year or two behind me at the Office and he left as a Felony Two.  He disappeared out of the criminal law realm for several years, but reappeared a few years back.  Nathan is a cocky smart ass, but I like him.  We often found ourselves in cut down battles during our misdemeanor days, but he was regarded as a very talented trial lawyer.

Nathan left the Office after getting crossways with the Upper Administration for turning in his two week notice shortly after attending Career Prosecutor School.  You can expect there to be some grumbling about that by some of the older former prosecutors.  Contrary to those grumblings, I think he will actually be a good trainer to younger lawyers.  I'm glad to see him back.

Sean Teare -- Vehicular Crimes Unit Chief  Again, I (and most of Sean's friends) were surprised to see his name pop up on the list of returning prosecutors to the Office.  He's a good friend of mine, but since leaving the Office for the Civil World during the Lykos Administration, he's been rather missing in action.  I'm glad to see him back at the D.A.'s Office.

There has been some grumbling that Sean left the Office as a Felony Three and did not have experience trying cases that involved fatalities.  Given the fact that Vehicular Crimes handles mostly Intoxication Manslaughter cases, some have argued he doesn't have the experience to head the Division.  However, Sean has been a lawyer for over nine years, and he's a good one.  He may have some learning to do, but I imagine he will ultimately do just fine.  He's got guts and he's not afraid to speak his mind if a case doesn't rise to the level of being provable beyond a reasonable doubt.  That's an asset in a Division that will deal with extremely emotional cases, where ration can sometimes be in short supply.

Colleen Barnett -- Floating Felony Court Chief   Also from the Blast from the Past Files, we have the return of Colleen Barnett as Floating Felony Court Chief.  Again, I think this is a good call.  Colleen is also a friend of mine, and she is one hell of a trial lawyer.  I had heard rumors that she was returning to the Office, and I'm glad to see her coming back.  I would imagine that Colleen is going to be the Designated Hitter on a lot of very tough trials in the near future.

Some friends were surprised that Colleen was given a Floating Felony Court Chief position when there are currently so many District Court Chief positions that will need to be filled.  I would imagine that this has more to do with her taking on tougher cases and not being limited to just any court.  She has the experience to be the leader of the Trial Bureau, but apparently she has taken on the role of Ninja Assassin for the Office.  This is interesting, because it seems to be a small preview of the restructuring of the Office's hierarchy.

Alex Forrest -- Environmental Unit Chief This one has some people scratching their heads because not many people know Alex.  I've known him for several years now and he's a really nice guy.  I haven't seen him in the criminal arena all that often, but he is a pretty young attorney.  Environmental isn't exactly a hotbed of activity within the Office.  I don't really see this creating too much controversy in the near future.

Elizabeth Eakin -- Data Analysis Director  I don't believe that I know Elizabeth Eakin or what a Data Analysis Director does.  According to the State Bar, she's been licensed since 2012.

Sue Lovell- Governmental Affairs & Shekira Dennis -- Outreach Coordinator  I'm not familiar with these two staff members, but these positions appear to be more Administrative rather than legal.  I don't believe they are attorneys, unless I'm looking under the wrong names on the State Bar website.  Lovell has her own Wikipedia page and Dennis appears to be very involved in the Democratic Party.

And now we get to the trio of terrible decisions . . .

Jim Leitner -- Intake and Grand Jury Bureau Chief --  sigh.  Despite our brief and torrid Facebook friendship, I still am not a big fan of the idea of Leitner back at the D.A.'s Office.  My personal feelings aside, Jim was a giant disappointment to those of us who used to actually be fans of his prior to taking the role of 1st Assistant under Lykos.  Back in 2008, most who knew Jim thought he would be a voice of reason to the temperamental Lykos.  Unfortunately, he ended up becoming a wildly unpopular authoritarian who wielded his power at the office like a weapon.  While over time I've almost come to look at Leitner with amusement, there are many current and former Assistant District Attorneys who loathe him far worse than I ever did.

Although Ogg didn't place Jim at the head of the hierarchy, his position as Intake Chief has some big undertones on what is ultimately going to happen on the David Temple case, and it doesn't exactly bode well for the chances of a retrial.  Leitner has already gone on record as thinking that the capital murder warrant written by Dumb and Dumberer was a good one.

John Denholm -- Intake Shift Chief  Speaking of Dumb and Dumberer, the Ogg Administration made two additional poor decisions by bringing in the chief architect of that ridiculous warrant, John Denholm.  Denholm, who was last seen giving a less-than-enthralling lecture on body cameras at a CLE (which reminded me of this for some reason) will be taking the title of "Shift Chief."  I have no idea what that title means, but it would seem that he will be in charge of writing some warrants.  This also doesn't bode well for the retrial of David Temple, since Denholm, Leitner, and Steve Clappart all seem to think that a person claiming to have killed a dog is the exact same thing as an admission to Capital Murder.

This position is more than just a little concerning.  Denholm is an angry man who likes to retaliate when he is pissed off.  Yeah, let's put a slow-witted, angry man in charge of supervising all charges filed in Harris County.  What could possibly go wrong?

Steve Clappart -- Chief Investigator  Rounding out the Three Amigos of Bad Decision Making is our friend Steve Clappart, who makes his return to law enforcement as Chief Investigator for the Office.  Clappart continues to disappoint me on several levels, because I used to actually respect him and think of him as a friend.  Steve was the affiant on the notorious warrant that Denholm put him up to writing.  In the glowing article written about him and Denholm by Lisa Falkenberg, he bemoaned losing friends for his "courageous" stand on the case.

In reality Steve lost friends because he was playing both sides of the fence.  While signing off on a Capital Murder for a kid who allegedly (through double hearsay) claimed to have shot a dog, Clappart was also calling friends in law enforcement and telling them he was only pursuing the warrant because his boss, Jim Leitner, was making him do so.  At the end of the day, Steve appears to go where he's ordered and that is highly disappointing behavior from a cop I used to think so much better of.

The trio of Clappart, Denholm and Leitner coming in under the Ogg Administration is a pretty tell-tale sign about the likelihood of a Temple retrial, but I'll talk more about that in a later post.  As I've said before, and I'll say again, I do remain hopeful that the Ogg Administration wil be a good and successful one.

Wednesday, December 28, 2016

One of My Odder Facebook Friend Requests . . .


I had this pop up in my Facebook feed a few days before Christmas, unexpectedly.

It was Christmas Time, so I thought in the spirit of the season, I'd accept.

Alas, he unfriended me a few days later.

Such a tease, Jim.  Such a tease.

Wednesday, December 21, 2016

Chip Lewis's End of Year Party

Our friend, Chip Lewis, is hosting an End of Year Party for all Harris County District Attorney Alumni, as well as the survivors all present employees.

The party is on Thursday, December 29th at 5:00 p.m. at Gloria's (2616 Louisiana) in Midtown.  Cocktails and appetizers will be provided.

To quote Chip:

Bring loved ones and friends.  Everyone deserves a better ending to 2016.

Hope to see you all there.

Tuesday, December 20, 2016

Victims, Phone Calls and Press Conferences

This morning, I was out driving around with my wife doing a little Christmas shopping when all of a sudden my phone started blowing up with repeated text messages from people saying that Harris County District Attorney-Elect Kim Ogg was talking about this blog in a press conference.

I wasn't able to watch the full conference until I got back home from running errands.  The gist of what was being reported was that Ogg was accusing prosecutors Justin Keiter, Nick Socias, and Gretchen Flader of contacting victims of crime in an attempt to create an atmosphere of distrust with the incoming administration.  Noting that all three prosecutors were not invited back under her administration,  Ogg stated that the actions were unprofessional, possibly criminal, and that she would be doing a full investigation when she took Office on January 1st.

So, when I got home I had a chance to watch the press conference, and I found some things to be somewhat strange.

The first instance that Ogg spoke of dealt with the victim in a case who was allegedly unsatisfied with how the case had been resolved.  Ogg noted that the victim had complained to Keiter, who told her to contact Ogg with any complaints.

Well, um, okay.  So, we've called a press conference to say that a victim of a crime wasn't happy with how a case turned out?  Not to be insensitive, but that happens some times.  So, that victim calls the prosecutor (who has eleven days left to work as a prosecutor) and he tells her that she will have to take it up with the incoming administration because he won't be there?

Even if you assume the worst of Keiter, and let's just say for the sake of the argument that he delivered this in an unprofessional manner, I fail to see something that would merit an investigation.  Victims routinely get upset when they don't agree with how a case is disposed of -- I once dealt with an angry mother who wanted Attempted Murder charges filed against a man who threw a rock at her son's car when he was speeding through the man's neighborhood -- and they will be more than happy to complain and complain as long as someone is listening.  If Keiter punted on listening to it and told the victim to take it up with the Ogg Administration, that would be understandable under the circumstances.

But Kim followed up her initial statement by saying that Keiter posted things on Facebook and on this blog about notifying families of murder victims that he wouldn't be their prosecutor anymore.  That's just false information.  Keiter isn't on Facebook and to my knowledge, he has never posted on this blog.  He certainly hasn't since being terminated.

The second instance that Ogg described was a call from the mother of a crime victim who had gotten a robocall from VINE telling her that the Defendant on the case had left the Harris County Jail.  Ogg wasn't specific about whether or not the release was due to the Defendant making bond or leaving custody for other reasons.  Ogg stated that the prosecutor on that case was Nick Socias, and he had not called the victim to let her know about the Defendant leaving custody.

Um, okay, so Keiter says something to a victim and Ogg is angry and now Socias doesn't say something to a victim and Ogg is angry.  I'm failing to see exactly what Ogg's gripe with Socias is here.  She never even clarifies what is going on with the case.

The third instance is from the mother of a capital murder victim who said she had received an "anonymous phone call" from someone claiming to be a prosecutor who made "allegations that were political in nature and also gave her misinformation about the status of her case."  Ogg states that she asked the woman who was handling the case and she said, "Gretchen Fladen [sic]."  Ogg then goes on to point out that Socias and Flader are "domestic partners."

Still scratching my head on why we are having a press conference here.

So, the mother of the victim gets an anonymous call -- not alleged to have been from Flader -- from someone who made some political comments and gave some misinformation and we are now blasting Gretchen in a press conference?  And you totally busted Gretchen and Nick to their parents if they didn't know those two were seeing each other!

In a Houston Press article written by Meagan Flynn, Flader described the interaction with the victim's mother:
In an email to the Press, Flader admitted to calling the mother, whom she said she communicates with frequently about the death penalty capital murder case she's been handling for the past few years. Flader said she called to tell the mother that both she and the other prosecutor on the case had been fired and new prosecutors would replace them. The mother, Flader said, was concerned about whether this would affect the prosecution's decision to seek the death penalty.
“I told her that I did not know, but that it was a possibility,” Flader said. “She asked who she needed to talk to and I told her that Kim Ogg is the new DA and would make the decisions. I told her I was sorry and wished her luck.” 
You know what's wrong with that?  Nothing.

Ogg stated that all of this was possibly illegal.  I fail to see how.  It doesn't sound like Ogg is particularly clear on what happened.  She even wrote a letter to First Assistant Belinda Hill demanding that "all records [personal cell phone, personal and work email, etc.] from each person involved are immediately preserved so that a full investigation can be undertaken."

Okaaaaaaay, so you want Judge Hill to confiscate Justin, Gretchen, and Nick's cell phones and personal e-mails because they did . . .  what, exactly?

In follow up questions, Kim backpedals and says "I'm not making a direct accusation . . . " and "I will not draw any conclusions about their participation or their guilt until I've had a chance to see the evidence."

What?  You called a press conference and then didn't make an accusation?  It sure as hell sounded like an accusation to me.  Sounded like three of them, in fact.  And then you followed it up with saying you haven't drawn any conclusions?!

You just held a freaking press conference.  You might as well have wrapped up with, "I'm just kidding!"

Look, I understand that the transition from Devon Anderson to your Administration isn't going so smoothly.  I agree with you that Devon shouldn't have stated that public safety was endangered by firing 38 prosecutors on Friday.  Don't get me wrong, I don't agree with you firing all of those people, but I don't see a riot ensuing.    I also agree with you that Devon should meet with you.  I get that she's probably still mad about some stuff said on the campaign trail, but she should meet with you.

Kim, I really am sincere when I say that I want your Administration to succeed, but work with me, here.  You can't fire that many people and expect them to love you for it.  They are entitled to do a little grumbling, but you are now calling that grumbling "criminal" without anything at all to indicate that.

You can't go around threatening criminal charges every time somebody pisses you off.

You can do better.  You should do better.  You must do better.

And you owe Gretchen, Nick and Justin an apology for this press conference.

The Buzbee Dismissal

Okay, so the CJC has been a pretty big hotbed of activity over the past 24 hours.  I will talk about Kim Ogg's press conference in a post after this one, but I wanted to begin with discussing the rather murky circumstances surrounding the dismissal of prominent attorney Tony Buzbee's DWI case yesterday.

First off, in the interest of full disclosure, Buzbee's attorneys, Paul Doyle and Allen Tanner, are both good attorneys and good friends of mine.  I'm not going to talk about the facts behind Buzbee's arrest, because I don't know the facts. I will say, however,  that if you are a defense attorney who gets a dismissal for your client, then you've done a good job for your client.  Period.

The second thing I will say is that Brian Rogers did a very good write up about the facts of the case.  Brian and I aren't friends, but he did do a nice job with a thorough article here that seems to cover the interesting aspects of politics and law on this case.

So, at the risk of regurgitating Brian's article, here's the short version.

1.  Pre-trial diversions on DWI cases are not uncommon if the cases meet certain criteria (i.e., First Offender, Blood Alcohol Content under .15, No Accident involved).

2.  Those pre-trial diversions typically last 1 year and have specified conditions.

3.  Those 1 year terms are rarely (if ever) terminated early.

4.  They require an acknowledgement of guilt and a signed contract with the District Attorney's Office, but no plea in front of a judge.

5.  If they are successfully completed, the case is dismissed.

6.  Judge Bill Harmon of the County Court at Law # 2 of Harris County does not allow these agreements to take place in his court.

7.  Tony Buzbee was in Judge Harmon's court.

8.  Tony Buzbee was on a pre-trial diversion in Judge Harmon's Court.

9.  Tony Buzbee got a dismissal signed by Devon Anderson that stated he had completed the terms of a pre-trial diversion.

It is mildly complicated, but if you look closely, these 9 statements cannot all be true in the case of Tony Buzbee.

The current insinuation coming from the Defense Bar (and others who aren't fans of Devon Anderson) is that Buzbee was never, in fact, on a pre-trial diversion.  The argument is that Devon just simply dismissed his case as a favor to somebody, and claimed her rationale was that he had completed the pre-trial diversion.  If that is the case, the argument continues, she signed off on a government document that wasn't true.

And that could be considered to be a crime.

Whatever the truth of the matter behind the Buzbee dismissal, it sure as hell looks bad and looks like political favoritism being played.

The fact that Devon signed off on the dismissal herself is not all that important, in my opinion.  Whether it was done with clean or dirty hands, Devon was making sure that the buck stopped with her.

If Buzbee was, in fact, on a pre-trial diversion, then terminating it early would not necessarily be the biggest scandal on earth.  Sure, there is some preferential treatment there, but at the end of the day, a pre-trial diversion contract is between the D.A.'s Office and the accused.  If the D.A. wants to modify it to the Defendant's benefit, then the only person who would complain would be ---- well, all of the D.A.'s enemies.  I can recall a certain Houston Texans wide receiver (and Super Bowl MVP) that had his DIVERT program terminated a little early under Pat Lykos, I believe.

The fact that it is a contract between the D.A. and the Defendant also means that if Devon wanted to give Buzbee a better contract than every other Defendant in Harris County got, that would be okay, too.  It looks terrible and sketchy as hell, but it still wouldn't be illegal.  For instance, if she wrote up a Pre-Trial Diversion Contract that said, "The Defendant shall not go on a drunk bender for the next three days, and if he complies with this rule,  the case shall be dismissed," that would work.

The only way Devon would have potentially broken the law would be if no such agreement existed whatsoever and she wrote down in a court document dismissing the case.

I highly doubt that she would be so foolish.

But I've been wrong before.