Saturday, March 9, 2024

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table with her council advisors lined down each side. It is STARDATE MARCH 5 - T-MINUS 20 seconds

EMPRESS OGG:  Beloved minions, we stand on the precipice of what will be a great and lengthy battle --




EMPRESS OGG:  What do you mean "we lost," Vice-Admiral?  The battle literally began two seconds ago.

VICE-ADMIRAL MITCHAM:  Yep, war's over.  We lost.  The stats have us trailing at 21% of our battalions fighting as opposed to Qui-Gon Teare's 78%.

EMPRESS OGG:  That's impossible.  I refuse to believe it.  How can it be?  We can mount a comeback, can't we?

CAD DANE:  Let me crunch some numbers, your Oggness.  [DANE STARTS TYPING INTO A TABLET]. Let me see . . . if every voter who voted today voted only for you and none of them voted for Teare . . .  [SETS DOWN TABLET] . . . yeah, still no.  We lost.

EMPRESS OGG:  But, but, but what about the Klingon Crossover Troops that were promised to us by the Palmer-Hoopians?

CAD DANE:  yeah, they aren't really in this universe.  Turns out that Don Don Hooper wasn't actually a general, either.  He was just an unemployed loser mooching off of his wife's salary while calling himself a Prominent Klingon Activist.

EMPRESS OGG:  But all the money I funneled to Count Rachel had to have counted for something!

VICE-ADMIRAL MITCHAM:  well, it did seem to really piss off the Jedi Caucus.

EMPRESS OGG:  Those fools.  I am the only one who has been truly Jedi all along.  They should have rallied behind me.  

VICE-ADMIRAL MITCHAM:  yeah, they didn't rally behind you four years ago either.

EMPRESS OGG:  SILENCE!!!  Vice-Admiral King, why do you seem so calm in all of this?  Don't you see that we are headed toward destruction?!?!?!

VICE-ADMIRAL KING (STARING AT HER OWN TABLET):  Hmm?  I'm sorry.  Did you say something?

VICE-ADMIRAL MITCHAM:  Empress Ogg, perhaps you are unaware that Vice-Admiral King has been planning on launching Escape Pod 486 for some time.  She is waiting for it to charge to just over 50% so she can make her getaway.  Right now she is at 47%.

VICE-ADMIRAL KING:  You shut up, New Tom Berg.  You don't know what time I make my escape from this dumpster fire.

EMPRESS OGG:  How could you, Vivian?

BARBARA THE STRONGARM:  Empress, she started up her own cable access show again over a year ago.  Surely you knew she was campaigning.

EMPRESS OGG:  Is it any better than Sisters-in-Law?


EMPRESS OGG:  All of my talking points!  How could this possibly be? Anna the Carpenter, what is the meaning of this?  I paid you a county salary and out of my political campaign for better results than this.  What did you do and Cad Dane do with your time?

ANNA THE CARPENTER:  Mostly trolled your political enemies on Twitter using fake names.

EMPRESS OGG:  And you, Stine the Baker, what do you have to say for yourself?  You were supposed to deliver me this election like all of the Republicans you have historically worked for promised me.

STINE THE BAKER:  Well, um, we tried but there were some things that the troops didn't really approve of.


STINE THE BAKER: So, yeah, like you know how you spent the entirety of the pandemic blaming all of the Judges for everything?

EMPRESS OGG:  Yes.  The Klingons loved it.

STINE THE BAKER:  Well, the Klingons don't really participate in this universe.

EMPRESS OGG:  But I had the support of Andy Kahan!

CAD DANE:  He's a Klingon.

EMPRESS OGG:  Alexandra del Moral Mealer?


EMPRESS OGG:  Randy Wallace?  Bob the Choad and his anonymous band of merry Klansmen on Twitter?  They all said if I took out Lina the Hidalgo they would support me!


CORPORAL LEITNER:  Vice-Admiral King, two questions.


CORPORAL LEITNER:  First, how is the Escape Pod 486 charging going and also, are you looking to hire a court coordinator?

VICE-ADMIRAL KING:  Still stuck at 47% and no.

EMPRESS OGG:  How dare you, Corporal Leitner?  You are the one who got me into this mess with your mismanagement of intake. 

CORPORAL LEITNER:  Forgive me, Empress!  I did the best I could with the budget you gave me.  When you gave all of the funding to your Upper Council instead of hiring more intake prosecutors, I had to improvise.

EMPRESS OGG:  You set up an automated answering service for the intake line that said "Thank you for calling Kim Ogg's Harris County District Attorney's Office.  We are unable to take your call at this time, but we accept your charges!"

CORPORAL LEITNER:  Yes, but it was recorded in your voice so the officers would know you were on their side!


JAR JAR ROGERS:  Mooey mooey Empress Ogg!  Say it isn't so!  Say it isn't so!  

EMPRESS OGG:  What have you heard, Jar Jar?

JAR JAR ROGERS:  Theesa Jawas!  They allsa be smiling!  Jar Jar didn't even knowsa that Jawas had mouths!

EMPRESS OGG:  I didn't know that either, come to think of it.

JAR JAR ROGERS:  Thensa I turned on the news and I seesa Mark Goldberg at Qui-Gon Teare's Victory Party negotiating a surrender!

EMPRESS OGG:  What?!?!  Who authorized Goldberg to authorize a surrender on my behalf?  This is like when he sent out that e-mail demanding all the Jawas work a campaign event from my e-mail account that he didn't even have the password for.

CAD DANE:  I'll call him.  [CAD DANE DIALS A NUMBER INTO HIS CELL PHONE]. Mark?  Mark, what are you doing at Qui-Gon Teare's Party?  The Empress has not authorized a concession to surrender . . .  What?  Oh . . . I see . .  . okay.  Bye.

EMPRESS OGG:  What did he say?

CAD DANE:  He's just negotiating his own surrender.

EMPRESS OGG:  That weasel.

CAD DANE:  Yeah, he said the Weasel is at Teare's Party too.

EMPRESS OGG:  I still don't understand how this could have happened.

STINE THE BAKER:  Well, the Indivisible Squadron seems to have also had a pretty strong influence on this, as well as a lot of former Jawas that you ran out of the organization when they wouldn't give you their cell phones.  Additionally, Lina the Hidalgo was far more powerful than you realized when you took her on and lost.  And the general public really didn't like that yellow outfit you keep wearing.

EMPRESS OGG:  The one with my Victory Sleeves?

STINE THE BAKER:  yeah.  Not polling well.

CORPORAL LEITNER:  Vivian, where we at on those numbers?

VICE-ADMIRAL KING:  Still stuck at 47%. At this rate, I'm never getting out of here. [VICE-ADMIRAL KING BEGINS BANGING THE TABLET ON THE TABLE].  Stupid tablet, I'm going to sue you.  I'm Board Certified!

EMPRESS OGG:  Vice-Admiral King, you are excused.  I will see you at my victory party.

VICE-ADMIRAL KING [GETTING UP TO LEAVE]:  Um, yeah.  Sorry, but I gotta go home and finish watching Sisters-In-Law to see how it ends?

EMPRESS OGG:  You were on the show.  You don't remember?

VICE-ADMIRAL KING:  Yeah, I was drinking a lot back then.

EMPRESS OGG:  At least I know that Vice-Admiral Mitcham will stick by me.  We have always been together, David.  I appreciate that.

VICE-ADMIRAL MITCHAM:  Well ever since you had me "Execute Order 66" on Qui Gon Teare's personnel file, I'm pretty much as screwed as you are.

EMPRESS OGG:  A little creative writing never hurt anyone, Vice-Admiral.

VICE-ADMIRAL MITCHAM:  um, yeah.  Well, either way, we're both screwed.

EMPRESS OGG:  We're screwed because we have powerful enemies.

CAD DANE:  Most of these "powerful enemies" used to be your allies.

EMPRESS OGG:  Be that as it may, they never expected me to my job so super duper well that they would come to hate me.  Everyone says that people love to stare at the sun until it burns their eyes.

VICE-ADMIRAL MITCHAM:  Pretty sure no one ever said that.

EMPRESS OGG:  About staring into the sun?

VICE-ADMIRAL MITCHAM:  No, that you did a did a super duper job.

EMPRESS OGG:  this is a scary lesson for the universe, my people.  If a simple girl from a wealthy and privileged background isn't allowed to use her position to persecute her enemies, betray her allies, and spend public funds on her private friends, I don't know why anyone would want to seek public office.  What more could people possibly expect of us?  


EMPRESS OGG:  I thought you left.

VICE-ADMIRAL KING:  Damn Escape Pod 486 is still stuck at 47%.  I'm going to be here awhile longer.

EMPRESS OGG:  As will I.  Vice-Admiral Mitcham, have the Jawas meet me tomorrow for a speech in which I will both console and terrify them.  I know they must be heartbroken.  Tell them we still have nine months to go and I still have much power.


EMPRESS OGG:  And call Grand Moff Abbott on Planet Austin.  Tell him my mission is almost finished here and I will be returning back to the Fold.



Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Episode Five: The Empress Strikes Out 

Episode Six: Return of the Jury

Monday, February 19, 2024

The Contested Primaries 2024

In addition to the extremely heated battle for Harris County District Attorney, there are only a handful of other races within the Criminal Justice Center.  Just because the District Attorney's Race is getting all of the attention these days doesn't mean that those races aren't extremely important.  

Republican Primary

With the exception of former Assistant District Attorney and current Defense Attorney Tonya Rolland McLaughlin running for place 4 on the 14th Court of Appeals, there aren't any contested races on the Republican side that have a direct impact on CJC.  If you find yourself voting in the Republican Primary, I highly recommend Tonya.  She's a great candidate who has the perspective of both the Defense and Prosecution sides of things and she also someone with experience in both the trial side of a case as well as the appellate side.  

There is a contested race for Sheriff, but I don't really know any of the candidates enough to speak on it.  I don't think they will have much chance against Ed Gonzalez in November, anyway.

Democratic Primary

County Court at Law # 16: Juan Aguirre vs. Ashley Guice

With current Judge Darrell Jordan not seeking re-election, this is an open bench for 2024 and it has two very strong candidates running for it with Juan Aguirre and Ashley Guice.  Both are former prosecutors and practice criminal defense.  Both are great people.  This is one of those situations that I have run into before where I wish they were running for separate benches rather than against each other, because I think very highly of them both.

Ashley has previous judicial experience having previously filled an unexpired term on a County Court bench.  I had a case or two in front of her when she was on the bench there and it was a pleasant experience.  She worked hard on keeping cases moving forward, but she was not inflexible if a case needed a reset to get something important done.  I think she was a good judge before and I have absolutely nothing negative to say about her.

As I have said before, however, her opponent Juan Aguirre, is one of the best people I know.  He and I have known each other for over twenty years and he is someone that I admire greatly and think he would make a phenomenal judge.  I worked with Juan at the District Attorney's Office and I have practiced alongside him as a defense attorney.  He is one of those people who is the first in line to volunteer and lend a hand when someone needs help.  He is a calm and thoughtful person who is devoted to seeking justice and doing the right thing.  I am proud to call him my friend.  He would make a phenomenal judge.

My vote in this race goes to Juan Aguirre

338th District Court:  Allison Mathis vs. Ramona Franklin

The choice for the 338th District Court could not be more obvious as political newcomer and defense attorney Allison Mathis takes on incumbent Ramona Franklin.  Ramona Franklin is, to put it bluntly, the worst judge to have ever occupied a bench in Harris County, Texas.  Don't get me wrong, she's had some strong competition, but never have I seen a judge who so unabashedly ignores the Constitution and a Defendant's right to counsel like Franklin.  Whether it be her refusal to come into the courtroom and preside even after the main threat of Covid had passed, to refusing to allow defense attorneys to stand in court with their clients, or her whimsically raising the bonds and taking defendants into custody after they had already made bond, Ramona Franklin either doesn't understand the law or she simply has no interest in following it.  

If you are even remotely undecided about whether or not Franklin deserves your vote, please read this post I wrote in 2021 about a showdown that the Harris County Criminal Lawyers' Association had to have with her.  Read it and pray that you or a loved one never finds yourself accused of a crime in her court.  

By contrast, her opponent Allison Mathis knows the law and strongly believes in the accused's presumption of innocence.  She has worked (literally) all over the world in different jurisdictions while defending clients and she takes her duties extremely seriously.  She's also a very brilliant legal mind.  I only met Allison a few years ago, but I have worked closely with her on several projects through HCCLA.  She is the first person I call when a difficult legal issue needs to be addressed and she always devotes her full energy to resolving it.  The Houston Chronicle endorsed her by saying that any qualified candidate would be better than Franklin, which (although I understand the sentiment) I think doesn't give Allison enough credit.  She'd be an outstanding candidate in whatever race she was running in.  But in this race in particular, she couldn't be more of the clearer choice.

My vote in this race goes to Allison Mathis.

486th District Court: Gemayel Haynes vs. Vivian King vs. Roderick Rodgers

Last year, the Legislature created three new District Courts and the Governor appointed three Republican judges to all of them.  All of them are on the ballot this year and all of them have Democratic challengers.  For some reason, the 486th has three candidates vying for the Democratic nomination while the other two are uncontested in the primary.

Much like the race for the 338th, the choice in this race is also very clear as former prosecutor and Harris County Public Defender Division Chief Gemayel Haynes is the best candidate for the job by a mile.

I don't normally subscribe to the idea of guilt by association but Roderick Rodgers is the husband of the above-mentioned Ramona Franklin, who as noted above, is the worst judge I've ever seen on the bench in Harris County.  Additionally, he's only been licensed since 2016 and currently is a prosecutor in Fort Bend.  He doesn't even practice in Harris County and I can't think of any reasons why anyone would think he should be on the Bench here.

And then we have Harris County District Attorney Chief of Staff Vivian King and I'm not even sure where to begin here.  

Vivian used to be a pretty respected defense attorney in Harris County, but over the past ten years or so, that all started to slip away from her for some reasons.  It started off when she went on the Sisters-in-Law reality series that profiled her and other defense attorneys in Harris County.  Vivian established at herself as a hard-drinking ego maniac with some fairly strong anger issues.  It wasn't a good look.  As if that weren't bad enough, she then went to work for Kim Ogg as the Chief of Staff.  Speaking of guilt by association, Vivian has been the second in command of an erratic and terrible office.  Who can forget her wildly entertaining call to me in the early days of the COVID-19 pandemic when she threatened to sue me and grieve me for criticizing her!

She has long lost touch with the idea of what it takes to be an effective trial attorney and was recently in the news for having failed to file a petition for a client she was representing after telling him that she would do so. She only missed the deadline by seven years!  Her behavior was excused by the above-mentioned Ramona Franklin, but not so much by the Texas Court of Criminal Appeals who issued a stinging rebuke of both Franklin and Vivian for the colossal screwup.  

Vivian's self-promoting website advertises her as a television personality.  That's probably what she should stick to.  Her behavior is far too erratic to be on a Bench where she decides peoples' lives.

Luckily in this contest, we have Gemayel Haynes, who is everything the other two candidates are not.   Gemayel is a former prosecutor and a current defense attorney who has the perfect amount of experience to sit on the bench.  Additionally, he is a calm and thoughtful presence who has always sought to do the right thing during the time that I have known him.  He is a good man and a great candidate and far and away the best choice in this race.

My vote in this race goes to Gemayel Haynes.

Harris County Sheriff's Office

I don't know any of the candidates running against incumbent Sheriff Ed Gonzalez, but I know Ed Gonzalez.  He's had a lot of things thrown at him since he's been Sheriff and he has handled them better than anyone else possibly could have.  It's a tough job and things can always be improved, but I can't imagine anyone doing it better than he has so far.

My vote in this race goes to Sheriff Ed Gonzalez.

Harris County District Attorney

This one is a No Brainer as per my last post.

I spend a lot of time telling people why Kim Ogg needs to go, but you should also know that Sean Teare is the one and only candidate in this race that can actually save the Harris County District Attorney's Office.

I've known Sean Teare since (literally) the day he passed the Bar Exam and I'm very proud to call him a friend.  He's a good man and a good leader.  During his time as a prosecutor, he led the Vehicular Crimes Section of the Office, spending countless hours making crime scenes where people had been killed by intoxicated drivers.  Unlike his opponent, he went to trial and knew the courtroom was not just there for press conferences.  He was well-liked by those who worked with him and for him and he knew how to boost the morale within an otherwise depressing office.

So many of us who used to work at the Office see in Sean Teare the hope that he can restore that Office's reputation and improve the quality of prosecution and justice that comes from it.  I have no doubt that he can accomplish that.  As I've said before, everyone benefits from an experienced and professional District Attorney's Office -- even the Defense Bar.  We have been lacking that under the Ogg Administration and are looking forward to things getting back to good under the Teare Administration.

My vote in this race goes to Sean Teare.

This year's ballot for the Democratic Primary is short but it couldn't be more important.  Please get out and vote and encourage your friends and family to get out there and vote, as well.   It is time for a change and never has there been a better opportunity to drastically improve the State of Criminal Justice in Harris County.

Saturday, February 17, 2024

Why It Is Time for Kim Ogg to Go

I‘m always amused when I see my name attached to the label of "Frequent Ogg Critic" in articles where I comment on Kim Ogg's job performance as Harris County District Attorney.  I am quick to point out that I didn't start out as a critic of hers -- quite the opposite, actually.  I voted for her in 2016 and I was public about my support for her, much to the disapproval of a lot of my friends.

My criticisms of Kim have been earned over the years and they've all been based on what I've seen her do in her professional capacity.  It isn't personal.  It's not like she ran over my dog or prosecuted a beloved family member.

Dane "Dudegoggles" Schiller, Anna "She Persisted" Carpenter, Joe "How Dare You?" Stinebaker and the other assorted members of her campaign team who receive taxpayer salaries to spin for Kim like to tell reporters that they should remember that I'm a "twice-fired, disgruntled Republican ex-prosecutor" any time I'm quoted in the news.   But that description is dishonest.  I was fired by Ken Magidson at the behest of incoming D.A. Pat Lykos for some things written in the comments on my blog disparaging Lykos.  It had nothing to do with my job performance, and my beef was with Ken and Lykos.  Kim Ogg had nothing to do with my departure from my office.  

I was certainly disgruntled towards Pat Lykos for a great many years and I wasn't shy about expressing that on this blog.  That being said, the way Kim Ogg has dismantled the Harris County District Attorney's Office has made Pat Lykos look like Atticus Finch by comparison.  

And that's saying something.  I never thought I'd miss the stability and integrity of the Lykos regime.

As far as me being a Republican, I will admit that prior to the arrival of Donald Trump, I voted mostly for Republican candidates and in Republican primaries.  But, I think the Right Wing crazies on Twitter will more than attest that I don't align with today's Republican values by any stretch of the imagination.  

Kim's credentials as a Republican are far stronger than mine ever were.

So, where exactly did Kim Ogg lose my support?  It wasn't one single thing.  Here are the highlights of the things that Kim Ogg has done to prove that she's the worst District Attorney that Harris County has ever elected.

1.  The firing of 40 experienced prosecutors (see Bloody Friday - December 17, 2016)

Some people start off on the wrong foot, but Kim Ogg took that to new extremes before she even took Office. Prior to taking over, she let approximately 40 senior, experienced and skilled trial-proven prosecutors know that their contracts would not be renewed when she took office on January 1, 2017.

There had been rumors swirling that Pat Lykos had passed on advice to Kim that her biggest mistake when she was D.A. was not firing more people who might be disloyal to her.  Lykos had made the foolish decision to keep prosecutors who knew what they were doing despite their political allegiances and that had cost her the election in 2012.  Kim took that advice to heart and then some when she chose fealty over public safety by getting rid of the vast majority of senior prosecutors.  

Quite frankly, her first misstep was the one that was most detrimental to the Office.  In the 8 years since, the Office has lost case after case and made poor decision after poor decision because there was very little experience there to guide it.  Ogg has spent the entirety of that time blaming everyone but herself for those failures -- from the jurors, to the Defense Bar, or, most prominently, the Judges.

This would be akin to a new owner taking over the Houston Texans and firing Demeco Ryans, C.J. Stroud, Tank Dell, Will Anderson, and the entire starting line ups on both sides of the ball . . . and then blaming the referees for a not winning games.

2.  Using the Media to Make Allegations She Couldn't Back up in the Courtroom (see Victims, Phone Calls and Press Conferences -- December 20, 2016)

Ogg was still over a week away from taking office when she gave the public a very strong preview of how she planned to handle her administration when she called a press conference to denounce some of those same prosecutors she had decided to let go and threaten them with legal prosecution for what she perceived as them disparaging her.  

In the wake of their impending termination, many of the senior prosecutors let the families of victims on their cases know that they would be leaving the Office.  This is, without question, the professional and caring thing for a prosecutor to do.  Victims and victims' families can become very reliant on prosecutors over the months (and sometimes years) that a case pends through the court system and good prosecutors actually care a lot of about those people too.  I haven't been a prosecutor for over fifteen years now and I still stay in touch with many victims and victims' families from my time in the Office.  

The departing prosecutors let these families know that new people were taking over their cases, which was 100% the classy and right thing to do.  And Kim Ogg was so offended by it that she held a press conference, threatening those prosecutors with investigation and possible prosecution, which was as absurd as it was paranoid.  

Sadly, Ogg's paranoia and penchant for press conferences have not decreased over the years.

3.  Playing Games with the David Temple Case (see Kim Ogg and the David Temple Decision -- January 3, 2017 & The One Woman Review Team -- January 6, 2017)

Kim Ogg hadn't even unpacked in her new office when she made it clear that one of her new top priorities would be personally reviewing the David Temple case and deciding whether or not the D.A.'s Office would retry it.   As you may recall, Temple had been granted a new trial after having been convicted of murdering his pregnant wife, Belinda, with a shotgun.  Temple attorneys Dick DeGuerin and Paul Looney hosted fundraisers from Kim Ogg and two of her new employees, Steve Clappart and John Denholm had been actively involved in trying to pin Belinda's murder on a group of teens in the Katy area.  She had multiple conflicts of interest in making a decision on the future of that case.

Rather than recuse herself and her office, she held onto it -- first announcing that she would head a review team on the case, and subsequently announcing that she would be the sole decider on it.  Community pressure in the press and from a certain blog eventually led her to recuse herself, fortunately, but not before a lot of sleepless nights from Belinda Lucas' family.  This case alone should make any critical thinker laugh out loud whenever Ogg announces she does her jobs for the victims of violent crime.  She was looking for any possible way to dismiss the case as a favor to her political backers.

David Temple would go on to be tried again by the Attorney General's Office with prosecutors Lisa Tanner and Bill Turner.  He was convicted and sentenced to life in prison -- again -- for the murder of his pregnant wife.  Coincidentally, Kim Ogg ultimately fired every prosecutor who worked for the District Attorney's Office that ever handled the Temple case through the appellate process.

4.  County Kickbacks for Friends and Supporters

Some of those prosecutors who did not have their contracts renewed chose to file unemployment claims against the county.  That's not really an unusual thing and it has never been anything that I've been aware of the County pushing back on . . . until Kim Ogg came along.  Ogg made the executive decision to fight the claims. 

Rather than use the District Attorney's Office General Counsel or perhaps the County Attorney's Office to handle such a non-criminal matter, Ogg retained her close personal friend, Katherine Mize, an employment lawyer and Ogg Campaign Donor to fight it.  In doing so, she used Asset Forfeiture funds from the District Attorney's Office to pay Mize $425 an hour to fight the claims.  That's a hell of a lot more money per hour than any county employee gets, and I'm going to go out on a limb and guess that Mize's bill probably ended up costing more than just paying out the unemployment claim.  In this case, we got the worst of both worlds -- not only did Mize get paid a ridiculous amount to fight the unemployment claim, she lost the case.  So the unemployment claim got paid out anyway.

It still pays to be friends with Kim Ogg.  Mize repaid that generosity by being a significant donor to Ogg's campaign and even appeared in one of her commercials.  She is still routinely used to "consult" on Ogg's Human Resource matters and to date has billed the county over six figures.

Just this week, the Houston Chronicle revealed that Ogg diverted over $175,000 to her friend (and Texas GOP General Counsel Rachel Palmer Hooper to investigate Harris County Judge Lina Hidalgo's Office.  That's a pretty sweet gig if you are Palmer-Hooper, the former-5th Amendment-taking-prosecutor and partner at Baker Hostetler.  Not only is she bringing in six figures for her law firm, she's also been handed the prosecutorial power to go after a controversial Democratic figure head that all of the Republicans love to hate -- all paid for with public funds! Palmer-Hooper probably hadn't been that excited since she launched a criminal investigation into a black man trying to vote!

5.  Her Personal Battle with the Houston Police Department (see Kim Ogg's War with HPD -- February 27, 2018)

Despite Kim Ogg's recent unauthorized use of Houston Police Department Chief Troy Finner's picture in one of her campaign ads, the relationship between Ogg and HPD has been a complicated one over the years.  

The highlight of her volatile relationship with Houston's Finest hit a low point in February of 2018 when Ogg decided to temporarily revoke HPD's access to the Consolidated Criminal History Database after getting into a spat with the HPD Union.  

It's always good to see your elected District Attorney put her petty grievance contributing to a lack of information shared amongst law enforcement.  If anybody thinks that Ogg is a friend of law enforcement, they should refresh their memory.

6.  The Firing of Tom Berg & Andrew Smith (see The Mad Queen -- May 14, 2019 & A Tale of Two Firings -- November 14, 2019)

One of the reasons I didn't write off Kim Ogg completely after she fired so many prosecutors before taking office was that there were some very good people that she brought in at the same time.  

Sadly, they didn’t seem to last very long.  Tom Berg was (and remains) a highly respected lawyer in the criminal law world although he largely seemed to be in the Federal arena prior to coming to the D.A.'s Office as 1st Assistant under Ogg when she first took office.  Additionally, Berg was a combat veteran who was known to be extremely intelligent and fair-minded.  His position as 1st Assistant was a promising sign that Ogg was going to run a well-managed ship.  As those prosecutors that had escaped Ogg's initial round of firings began quitting due to low morale, Berg tried to rally the troops and get them to stay.  

He then made the fatal mistake of disagreeing with Ogg on an issue and she fired him on the spot.  It was yet another example of Kim Ogg's legendary temper self-sabotaging her own Administration.  

A few months later, Ogg would also fire Andrew Smith, a longtime prosecutor who was very well-liked and respected by both prosecutors and the defense bar.  Smith had relayed to a defense attorney that Ogg had stated to him that a different prosecutor's firing had been based on who that prosecutor was married to.  When Ogg found out this information had been shared, she demanded that Smith put on the record that he had been lying when he conveyed that information to the defense attorney.  Smith refused because, you know, that would be perjury.  So Ogg fired him as well.

7.  The Death Chart Inquisition (see Kim Ogg's Pandemic Witch Hunt -- April 17, 2020 & Texas Monthly's The Hunt for a Leaker at the Harris County District Attorney's Office -- May 15, 2020)

Lots of craziness was going on in the early stages of the Corona Epidemic and the Harris County Criminal Justice World was absolutely struggling to stay on top of everything as courts were closing, trials were stopping, arrests kept coming in, and the jails were trying to balance public safety against further spreading a deadly disease.  The word "chaos" would be a massive understatement.

In the middle of it all, those experienced and dedicated line prosecutors who had thus far survived Kim Ogg's firing wrath were trying to keep the System afloat in the individual courts that they were in charge of.  As all of this was going on, an upper administration employee created an attendance chart to document how the employees of HCDA were fairing against the virus.  One of the options on the chart encouraged supervisors to notify the Office if anyone had called in dead.  Since most people in the Criminal Justice World tend to have a strong sense of Gallows' Humor, most people found this to be hilarious.

A poorly made screenshot of the "death chart" began making the rounds of prosecutors' text messages and it soon leaked outside of the Office.  People had a good laugh over how dumb of an idea of having a "death chart" was, but it wasn't anything too damaging to the Office's reputation.  Everyone thought it was funny.

Everyone except for Kim Ogg, that is.  With prosecutors and investigators working via laptop and cell phone while quarantining and trying to manage an unprecedented crisis, Kim Ogg had one priority and that was to identify whoever had initiated this innocuous joke.  She diverted resources away from managing that Covid crisis to hunt down her senior prosecutors -- demanding their office computers and attempting to strong-arm them into turning over their personal cell phones.  Ultimately, she would lose around eight or nine more senior Felony District Court chiefs from the already hemorrhaging Office, right at the time when the CJC needed their leadership the most.  

Once again, Ogg hurt her own office in the name of her ego.  Funny side story:  the author of the Texas Monthly article later told me that he figured I must have been embellishing when he first read my blog post about the Death Chart Inquisition and that he couldn't believe it when he found out it was all true.

Full Disclosure: I got a pretty awesome new law partner out of the deal, so it wasn't all bad.

8.  The Scapegoating of the Judges (see Scapegoating the Judges -- August 14, 2021 & Kim Ogg blames the Judges . . . yet again -- August 6, 2022)

I'll be the first to admit that being a prosecutor was an easier job when I was there for a lot of reasons.  We had better leadership.  We had better training.  We also had a field of judges who were almost exclusively ex-prosecutors.  Prior to around 2008, most judges had taken the bench straight from the D.A.'s Office.  Rulings went our way on pretty much any debatable issue and the punishments were high.  Being a prosecutor in Harris County during those years definitely meant having the home-field advantage.  That's just a fact.

Now most judges on the bench have both prosecutorial and defense experience and generally, the judges are more open-minded on issues that previously would have been no-brainers to rule for the State.  That's how it is supposed to be if we actually care about our Constitutional principles.  

But a neutral judiciary is not as conducive to convictions as it used to be, especially not when the District Attorney has run off the most experienced trial prosecutors.  The Office's win/loss ratio plummeted and politician Ogg had to find something to blame that wasn't herself.  The Code of Judicial Conduct prohibits judges from commenting on cases or responding to the vast majority of Ogg's criticism, so she knew that she could safely punch at them without them being able to punch back.

And punch away, she did.  

Kim Ogg made it very clear that a fair judge was a bad judge, and she attacked them at every turn.  Whether she was having her "community outreach team" post under pseudonyms on social media to privately attack them, or giving CrimeStoppers hundreds of thousands of dollars so that her old friend Andy Kahan could attack them on Fox 26's Breaking Bond, Kim urged her Republican allies to hold the judges accountable for her Office's failings.

Under Kim Ogg's leadership, the Office has made it very clear that it has no interest in a fair trial and they blast the judges that hold them accountable to the high Burden of Proof that they are supposed to meet in each and every case.  It's no wonder why Ogg is so well known for trying her cases in the media rather than in the courtroom.  

9.  Political Prosecuting for Publicity (see Raps, Rides, and Kim Ogg's Campaign by Indictment Policy - September 15, 2020)

The most frightening thing about Kim Ogg as District Attorney, without question, has been her use of prosecutorial power to file charges against people to court public approval.  She has done it since the beginning of her tenure as District Attorney and she continues to do it to this day.  Whether it being filing ridiculously over-inflated criminal charges against the Arkema corporation, trying to indict as many police officers as humanly possible that could be even tangentially related to the notorious Harding Street, a respected doctor who gave a Covid vaccination to his family when no one else wanted one, or anyone who works for County Judge Lina Hidalgo, Kim Ogg has shown time and again that if an indictment will get her some positive press, she's going to seek it -- regardless of whether or not the evidence is there to support it.

Sadly, that plan seems to work for her in the public relations realm and nowhere has that been more evident than in her investigation into Hidalgo.  Hidalgo is definitely a controversial figure in Harris County politics and is the lightning rod target of the displaced Republican community.  As noted above, Ogg employed hardcore Republican operative Rachel Palmer-Hooper to investigate Hidalgo's office (although she Ogg kept Palmer-Hooper's involvement shrouded in secrecy for years).   Between leaking search warrants to the Republican State Senator Paul Bettencourt and the media, Ogg is milking the good vibes of going after Hidalgo for all they are worth. 

But if one were to take a closer look at these highly publicized charges that Ogg's District Attorney's Office has obtained, they might notice something missing from them all -- final convictions.

Dan Cogdell and Rusty Hardin and company handed the District Attorney's Office its proverbial ass in the Arkema case with directed verdicts (which, for the layman means that the cases were so weak that the judge directed the jury to find the accused not guilty).  The Gokal case was no billed by a Grand Jury.  The other cases, Ogg has steadfastly avoided trial on, so as not to suffer the same humiliation that she received during Arkema.  Even the notorious case of Gerald Goines and the Harding Street Raid has now pended over five years without a trial and the cases against the Hidalgo staffers has no trial date set.  

Ogg's Office has played to the lynch mob mentality of making accusations that they can't prove.  That may work in the comments section of the internet, but that's not how we do things in a court of law -- especially not when people's lives hang in the balance.

10.  The Destruction of the Harris County District Attorney's Office

For better or worse, the Harris County District Attorney's Office used to have the reputation of being one of the most formidable offices in the State and the Country.   It was an office staffed from bottom to top with prosecutors that knew what they were doing in trial and were trusted by their supervisors to do the right thing in how they handled their cases.  Prosecutors knew their cases and took the righteous ones to trial and dismissed the ones that they knew they couldn't prove.  As long as you made your decisions for the right reasons, you didn't have to worry about your job.

Kim Ogg has turned that idea on its head and the Office has cratered because of that.  From starting her tenure by firing forty experienced prosecutors to running off countless more over the past eight years, she's run off scores of talented trial lawyers and leaders from that Office.  She's also created a culture of fear that those prosecutors who remain are afraid that dismissing a case (no matter how weak it is) could get them fired.  As a result, plenty of non-trialworthy cases are going to trial and the District Attorney's Office is suffering Not Guilty verdict after Not Guilty verdict.

Not to sound like too much of an Old Timer, but when I worked for the District Attorney's Office in the late-90s/early 2000s, the conviction rate at trial was well over 90%.  Now it is barely over 50%.  

Regardless of your views of the Criminal Justice System, that statistic should worry you.  A Not Guilty verdict means one of two things in the vast majority of cases:  Either 1) the prosecution failed to prove a case that they should have been able to; or 2) the prosecution took a case to trial that they shouldn't have.  Neither one of those scenarios is a good one.  

Contrary to popular belief, defense attorneys such as myself don't relish the idea of inexperienced prosecutors who don't make good decisions.  Sure, it might make a trial easier, but overall it makes our jobs harder.  Prosecutors who don't understand the law and procedure, or (worse) are too scared of the repercussions for dismissing a crappy case end up prolonging cases unnecessarily for our clients.  The same principle applies to negotiating cases with prosecutors that don’t have enough trial experience when assessing a plea bargain offer.  

In short, anyone involved in the realm of Criminal Justice will tell you that there is nothing more beneficial to the system than a good, smart, experienced, and ethical prosecutor.  The line prosecutor who goes to court to represent the State of Texas on a daily basis has the power to truly to promote Justice.  Kim Ogg has eroded that for Harris County and she has done so in a shockingly short amount of time.

Her time needs to be over and it needs to be over now.

All in all, my thoughts on Kim Ogg are quite simple:  she's out of control and she has been since day one.  She isn't there to serve justice.  She's there to make sure that justice serves her.  She is unethical.  She is a fool.  She is corrupt.  She has destroyed the Harris County District Attorney's Office from within.

And it is long past time for her to go.

Friday, November 24, 2023

Chuck Rosenthal

I heard this morning that former District Attorney Chuck Rosenthal passed away overnight.  He had been in ill health for quite some time and I heard he had taken a turn for the worse over the past few weeks.  The news of his passing was not unexpected.

To say that Chuck left behind a complicated legacy would be an extreme understatement, especially for those of us who worked as Assistant District Attorneys under his administration.  Although I started my prosecutorial career under Johnny Holmes, he retired a little over a year after I started and the vast majority of my tenure was in the Rosenthal Administration.  The end of Chuck's career would tangentially cause the end of my career as a prosecutor, and it was the end of an era of old-school prosecuting in Harris County as well.  Like many of the people I worked alongside in those days, my thoughts on Chuck Rosenthal are conflicted.

Chuck ended his career being vilified for many things, and by association, those of us who worked there were vilified as well.  I can recall trying to pick a jury shortly after news of his scandalous e-mails had hit the media and asking the panel of 65 potential jurors if their views of the Harris County District Attorney's Office would lead them to be unfair to the State.  I remember distinctly that one man said it definitely would.  He noted something to the effect of, "You seem alright, but if Chuck Rosenthal was standing there when I came in, I'd have turned around and walked right out."  That moment always seemed to encapsulate what that last year (2008) would be like for those of us who worked at the Office -- one-on-one dealings with us prosecutors seemed to be okay, but man, that Office had a horrible reputation.

It was a far fall from the reputation the Office had under the Holmes Administration.  

It also seemed to give vindication to all of those in the Defense Bar and some segments of the media that the Office was nothing but a racist and unethical haven of heavy-handed prosecutors who cared more about winning than playing by the rules.  That was a bitter pill to swallow for those of us inside the Office who didn't feel that way about one another, and we certainly didn't feel that way about ourselves.  The racist and sexist e-mails that were discovered from Chuck's computer were attributed to all of us as if we had authored them ourselves.  Back then it felt like any attempts to defend ourselves or the Office, in general, was to condone Chuck's behavior.  As most of you know, that's when I started this blog as an anonymous Harris County Lawyer over fifteen years ago.

But time has a way of lending perspective to certain moments in life, and the anger and resentment that I had for Chuck back in the day has been tempered somewhat.  Over the years, any attempt to say anything slightly positive about my time there has generally led to retorts of, "You just miss the good old racist, evidence-hiding days of Chuck Rosenthal!" But the truth is that in the big scheme of things, up until his disastrous implosion at the end, working as a prosecutor for Chuck Rosenthal was a pretty fantastic job.

To understand that, you have to understand the relationship that Chuck had with his employees.  And to understand that, you have to understand Chuck.

Whenever I talk about Chuck Rosenthal to people who didn't know him, I always lead off by saying, "The first thing you've got to know about Chuck is that he was really a strange man."  I don't mean that as an insult to him.  It's just true.  He was an extremely aloof guy whom most of us in the Office didn't know very well -- certainly not those of us in the lower echelons at the time he became District Attorney.  We had all signed up for the job under Johnny Holmes, who was a legendary firebrand of a leader.  We were scared to death of Mr. Holmes although we all felt very proud to work for him.  We revered him and we would follow him into battle.  History may ultimately be unkind to Johnny Holmes, but those of us who worked for him loved him.

Chuck, on the other hand, was just Chuck.  He was a tall guy who cut an imposing figure, but he didn't seem to have much going for him in the personality department.  He was extremely quiet and he seemed to rarely speak or smile.  In an Office filled with dynamic and charismatic leaders from Lyn McClellan to Ted Wilson to Bert Graham and many others, Chuck wasn't really viewed as the heir apparent to Mr. Holmes.  I think I had met him once or twice during the Holmes Administration and the only thing I remember about it was referring to him as "Mr. Rosenthal."  Without smiling or even making eye contact, he would reply, "Call me Chuck" and then walk off.  That and his bone-crushing handshake were all that really stood out about him.  I'd seen him in trial once alongside Elsa Alcala when I was an intern for the Office and I didn't think he even had the requisite amount of charisma to be a trial lawyer.

On the day Mr. Holmes announced he wasn't going to seek re-election, Chuck immediately announced that he would be running for District Attorney in 2000, and nobody else from within the Office seemed to be interested in challenging his claim to it.  It was a strange time.  It was as if some announcement had been made that Chuck would just be taking over and that was all there was to it.  Nobody seemed particularly excited nor upset.  It just was what was going to happen.

In one of the more ironic moments of life, a retired judge by the name of Patricia R. Lykos chose to challenge Chuck in the primary.  I had met her a couple of times when she had been a visiting judge in Brazos County and just found her to be delightful.  Several of my friends at the time discussed whether or not she would have been a better D.A. in 2000.  Word got around to some of Chuck's inner circle that some of us peon ADAs weren't "loyal" and we learned to keep our bizarrely positive thoughts on Lykos to ourselves.  True story!

When Chuck won the D.A.'s race and took over, the transition from Holmes to Rosenthal was about as seamless as one could have imagined.  I was too low on the food chain to have known the few people he chose not to renew.  Things just kept chugging along as they always had.  Chuck was the new District Attorney and most of the rank and file rarely interacted with him.  We might see him at the Office Holiday party for our yearly bone-crushing handshake, but other than that, we didn't see him.

And that was what made Chuck a good boss to work for -- the man simply let us do our jobs.  He wasn't there to micromanage us or yell at us for doing something to embarrass him or the Office.  He trusted his people to do their jobs and he left us alone to do them.  The hierarchy of the upper-Administration was effective and they themselves tried cases.  There was a camaraderie within that Office because we were all of the same mindset of people who felt we were seeking justice and we weren't afraid to go to trial.  We also weren't afraid to dismiss bad or weak cases because we knew we wouldn't get in trouble for it as long as we used our best judgment.

Say what you will about Chuck Rosenthal, but that Office ran like a well-oiled machine during his tenure.  I think I had to deal with him in an official capacity on two occasions.  On one occasion, someone had taken issue with a quote I had said in a newspaper article.  I was called to his Office where he showed me a letter he had received complaining about my quote.  I explained myself to him.  He shrugged and said, "I get bullshit letters like this all the time."  And that was the end of that conversation.  

The other time I dealt with him was when I needed to offer immunity to a witness on a murder case.  It involved a lot of paperwork and ultimately required the elected District Attorney's signature.  I prepared all of the paperwork and took it to his office.  He didn't stand or say anything in greeting.  I just handed him the paperwork and he signed it.  As I left, he told me, "Send me an e-mail when you are done with trial and tell me what I just signed."

That was what it was like working for Chuck.  He didn't inspire much in us, but we appreciated the discretion to do our jobs.  Rather than having one leader that we all looked up to, we felt more like we were part of a very talented team of trial lawyers and we looked up to each other.  Fifteen years later, those of us who worked there still may get the occasional taunt about having worked for someone as terrible as Chuck, but we definitely don't get taunted for being bad trial lawyers.

But for all of those who hated Chuck Rosenthal, those of us who worked for him at the time felt uniquely betrayed.  When his actions were brought to light, he had the option of resigning or, at a minimum, announcing that he wouldn't seek re-election.  Instead, he doubled down on refusing to leave -- even when an executive committee of Republicans implored him to leave.   Had he chosen to leave with some grace, perhaps that Office could have kept on running seamlessly.  Instead, it led to a hotly contested primary that ultimately ended a great many prosecutorial careers.  As one Division Chief repeatedly said, "I get the suicidal pilot that wants to crash his plane into a mountain, but Chuck took a 747 full of passengers with him."

In retrospect, who knows what would have happened?  It was 2008 and there was a major shift in the politics of Harris County that extended far beyond just the D.A.'s Office.  Chuck certainly bore the brunt of the blame from those of us who had worked for him, but that probably gave him more responsibility than he had actually earned.

After it was all over and Chuck was gone and I was gone, he started sending me random text messages and e-mails -- mainly commenting on things I had written on the blog.  I typically left them unanswered because I felt pretty bitter towards him.   In the early months of the Lykos Administration, I attended a going-away party for Bert Graham that was attended by a great many former prosecutors, including Johnny Holmes . . . and Chuck Rosenthal.  I had quite a few beers at that party and when Chuck walked up to me, I angrily told him to stop sending me texts and that if he wanted to talk, we could go to lunch.

The following day, he called and invited me to lunch.

To say it was the most awkward lunch I've ever attended would be a major understatement but after some failed attempts at small talk, I did launch into him for having failed the Office and the people who worked for him.  He sat there impassively throughout it all.  When I was done, he just looked at me and said "What would you have had me do differently?"  Since I had just spent fifteen minutes monologing about what I thought he should have done differently, I was floored by his question.  I really regretted having asked him to lunch.  Like I said earlier, Chuck was a strange guy.

At the end of that going-away party for Bert, a group of us had been standing outside smoking cigarettes toward the end of the party.  Chuck had stopped to speak to some of us while we were standing there although none of us really knew what to say.  As we were standing there, Johnny Holmes walked out of the front door and shook hands with most of us.  He then stopped and looked at Rosenthal, without shaking his hand.

"Chuck," he said, barely acknowledging his successor's presence.  And then he just walked away.  I'm not sure that I ever saw Mr. Holmes again in person.

For me, that moment always seemed to epitomize the end of my time at the District Attorney's Office.

Saturday, November 4, 2023

New Facebook Page

 Since I don't have the time to write longer blog posts as much as I'd like to these days (shout out to Joe Vinas for telling me being President of HCCLA wouldn't take up that much time), I've started a Facebook page for Life at the Harris County Criminal Justice Center.

I'll be posting on the Facebook page the latest news, rumors and gossip in some shorter snippets as they become available.

You can keep up-to-date by clicking here and following the page.

Biggest Fan

 It's good to see that Sean Teare is capturing the attention of the audience on the campaign trail!

Monday, October 30, 2023

Observations from Jury Duty

 I had jury duty for the first time in a couple of years today.  In the 33 years since I've been eligible to be a juror, I had only sat through three voir dires before today.  I never made the jury on any of them.  The first was a criminal case in Brazos County when I was at A&M.  The second was a criminal case in Harris County shortly after I left the D.A.'s Office where my friend and former co-worker Wendy Baker utilized a State Strike on me because she thought I was too good of friends with Defense Counsel Mark Bennett -- as I pointed out to her later, I never drove Mark to the hospital when he was in labor, but whatever, Wendy!  The third was a civil trial.

Since I had a jury summons for a Monday morning, I was pretty sure that I would at least be called to a panel today.  And I was right.

And truth be told, it was all pretty painless.

Thanks to my frequent visitor badge, I got to skip the metal detectors and got logged in on the computer and sent to my assembly room.  We watched a short video where District Clerk Marilyn Burgess spent about five minutes talking about how she had helped secure more money for jurors for their service and ways to use the gift card that we would be receiving the money.  About fifteen minutes later, Deputy Momin came and collected 65 of us for voir dire in the 180th District Court, Judge DaSean Jones presiding.

So, my first observation is a big shoutout to the 180th Court and its staff for being incredibly efficient.  We were seated and in the courtroom by 9:30 (if not earlier).  Standing around in the hallway is boring and we didn't do it for very long.  Deputy Momin got us there quickly, got us lined up, and got us in our seats efficiently.  There was a brief moment of entertainment when a female defendant (who may or may not have been on meth) in the hallway started yelling at jurors to get out of her way.  This got Deputy Momin's attention, and he chastised her for talking to his jury like that.  The bailiffs are the Court's first ambassadors that the jurors meet and the 180th has a great one.

Different judges do voir dire differently and for varying lengths of time.  Former 351st District Court Judge Mark Kent Ellis used to famously talk for four or five hours for his portion alone.  Some judges I've seen over the years didn't talk at all.  Judge Jones' voir dire was short and to the point.  He and I've known each other for about fifteen years and he called on me to answer some of the basic questions.  He covered some of the major themes that needed to be covered, but he didn't talk for long at all.

Each side was given thirty minutes to ask questions on an Assault-Family Violence Impeding Breathing case.  That's not just a ton of time to talk on a type of case that can potentially have some pretty deep issues.  The State was represented by the Felony Three assigned to the Court and his Chief sat with him.  The time allotted to him wasn't enough for him to get too fancy and he did a fine job of covering the basics.  He spent the majority of his time gauging the attitudes of the panel towards State involvement in matters of family violence.  He had a couple of scaled questions that were good ideas, but I think he spent too much of his limited time following up with their numerical answers without getting anyone struck for Cause.  He also made a point of going over "the State doesn't have to prove motive" which I've been seeing coming from several prosecutors lately.  I don't think that's really necessary.  His presence was good though, and I'm sure those lessons will be learned in time.

Defense Attorney Brennen Dunn was representing the Defendant in the case, and he was great.  I don't know him except in passing but he is well-known as an attorney who isn't afraid to go to trial, and it showed.  He was clearly ready to get through his points in a short amount of time and he did it very well.  Any defense attorney will tell you that we freely steal ideas from one another, and I'll definitely be stealing some things from Brennan -- particularly on how he covered the presumption of innocence, the burden of proof, and the 5th Amendment.  He got plenty of strikes for Cause.  I was a little surprised at some of his questions on self-defense, but all in all, he had an outstanding presence in front of the jury and did a great job.

After both sides were done, we went out in the hallway for about fifteen minutes.  When we came back in, both sides spent about five minutes wrapping up making their peremptory strikes, and they seated a jury.  I was juror number 49, so I didn't get reached.  I was out of there right around noon.  It couldn't have gone any smoother.

Sunday, October 29, 2023

Feast of Fashion Returns

 After an absence of several years due to the Pandemic, Pat Kelley and Julie Jones' Feast of Fashion is returning this year.

It's been a minute since the last, but they are always a ton of fun and raise money for several great causes.  For ticket information, contact Julie at 713-248-6864.

Sunday, October 22, 2023

Skip Cornelius

Legendary Defense Attorney and former Prosecutor Skip Cornelius passed away yesterday.  To say that his passing has resonated across the entirety of the Harris County Criminal Justice Center Family is an understatement.  From his fellow members of the Defense Bar to the Prosecutors who handled cases against him to pretty much all of the Judges he practiced before, Skip was the Gold Standard of what it meant to be a lawyer practicing indigent defense.   If you've been a reader of this blog over the years, you'll have seen his name brought up many times as I cited him as the best Harris County had to offer.  

It seems that the only thing that really motivates me to write something on the blog these days is when I feel the need to say goodbye to someone who I consider to be an influential force in my legal career. Lately 'm having to do that far more than I wish.  There have been other recent passings that I feel remiss for not having written about here, including Skip's brother, Terry Cornelius, who passed away earlier this year, and retired Judge Don Stricklin, who was the man in 1999 who called and offered me a job as a prosecutor.  Between lawyering and parenting, there have been things I've wanted to sit down and write about over the past months but just haven't had the opportunity.

With Skip's passing, however, I have so much I want to say that I just couldn't . . . not, I guess.  

There were so many eras of my legal career where I dealt with him, learned from him, and tried to imitate him -- starting when I was a new Felony Three who had hastily written a very low offer on a case file (back when we had paper case files) on one of his clients.  He looked at the offer and frowned slightly before handing me the file.

"I appreciate the offer.  I do," he said.  "But it would probably get you fired."  He pointed out that I had neglected to pay attention to his client's criminal history which made his punishment range 25 years to Life -- far higher than the 2-year offer I had extended.  But I had extended the offer, and after explaining my mistake to my chief, we honored it.

So, one of the first things that Skip taught me was in an adversarial system, there was still very much a calling for honor and chivalry in how we deal with each other.  He very easily could have called in the doctrine of No Take Backs and gotten me in trouble for my mistake to the benefit of his client.  In some defense attorney circles, one might argue that he made the wrong call.  I disagree with that argument wholeheartedly.  Skip's demonstration of honor put the onus on me to respond in kind.  It also made me want to follow his example in my future dealings with him and all opposing counsel in the future.

Skip's chivalry didn't always translate into patience with a young prosecutor, however, and I'm sure that I was just one of a multitude of young prosecutors who could annoy him.  I saw him mad on occasion, but more often it was his annoyance that tended to resonate with me.  I always felt if I was annoying Skip, I was definitely doing something wrong.  We once had a case together where a charge had been filed against his client but several other charges hadn't.  As we were getting closer to trial, I had gone ahead and filed those additional charges in anticipation of trial.  

We approached the bench for a pre-trial conference and Skip was clearly exasperated with me for reasons I didn't completely grasp initially.  The judge asked us what the status of the case was.

"Well," Skip said.  "We probably could have worked it out today if the State hadn't filed the C.S. Charges."

"What are C.S. charges?" I asked, very confused.

"Chickenshit charges," he replied, shaking his head.  We ultimately worked his case out on the original charge and dismissed all of those extraneous C.S. charges.

Skip was a highly respected and skilled trial lawyer who handled a multitude of serious cases, including many Death Penalty Capitals.  Because of his experience in trial, he was highly sought-after to be a speaker at Continuing Legal Education classes on Capital Murder cases.  I loved attending lectures where Skip was talking, because he always got straight to the point in a way that so many other lecturers failed to do.

While other lecturers at a Capital Murder seminar have an annoying tendency to wax overly poetic as they pontificate -- 

As we realize that we hold a precious life in our hands in these dastardly cases and everything is riding on us, we must first take a moment to step outside of our limited world view and embrace the situations that our clients have existed in that led them to this horrible and tragic circumstance for so many.

 -- Skip would take to the stage and say things like "The first thing you need to do is make sure there are no damn engineers on your jury."  With no offense towards the many esteemed lecturers on Capital Murder that I've listened to over the years, Skip was king of giving me information that I could put into practice.

My favorite Skip story came from the one trial I ever had against him.  It was an Aggravated Robbery case where a trio of Defendants had robbed a young lady in her apartment complex parking lot.  They had stolen her purse with credit cards and her cell phone and then immediately headed to a local tattoo parlor for some extravagant skin artwork on the young lady's dime.  Cameras on cell phones were still a relative novelty in those days, and the trio used her phone to take pictures of their tatts.   We had recovered the pictures from the phone, but in the one with what appeared to be Skip's client (based on clothing worn at the time of his arrest a short time later), his face wasn't clearly visible.  The case was a whale for me and Skip was fighting an extremely uphill battle.

But it is a truism that in any trial, there will be something that a prosecutor has forgotten to do, and in this case, I had forgotten to get a court order to have Skip's client's tattoos photographed before trial.  Realizing this mistake mid-trial, I approached Skip on a break during testimony.  He was working on the case in the break, taking notes while staring at something intently at the offense report.

"Hey," I said, "I need a favor."

"Oh yeah?" he asked, without looking up or stopping writing his notes.

"So, I should have gotten an order to have your guy's arm tatts photographed before trial and I didn't."

He paused writing but continued reading with a smirk starting to show up on his face.

"So you want to know if the tattoo is there?" he asked.

"Well, yeah," I said, starting to feel my face turned red.  "I was going to have the Court order him to show his arm to the jury.  I mean, if it isn't there you can obviously point it out and get some mileage out of that."

Skip set down his pen and scooted back from the table, folding his arms and looking at me like he was playing with his food.  He didn't say a word. 

So I continued

"I mean, all it would do is just make me look like a big dumb ass in front of the jury if it isn't there.  If it's not there, you can obviously show that to them without making me look like an idiot."

He smiled.

"Do you think it's there?" he asked.

I paused and thought about it for a second.

"Um, yes?"

He shook his head and rolled his eyes.

"Of course it's fucking there," he said and went back to taking his notes.

To be clear, he wasn't giving up anything that would have benefited his client.  He just saved a young-ish prosecutor from a potentially humiliating experience in front of the jury that would have haunted me for life.

Skip once told me that he didn't take retained cases because he had no desire to deal with the "bullshit" that came along with keeping the customer happy.  He preferred appointed work because he knew he was doing an outstanding job for all of his clients.  He didn't feel the need to explain himself unnecessarily to those who were high-maintenance.  There is no telling how many miracles Skip pulled off for clients who never had a clue as to how lucky they were to have him as their lawyer.

He was so good at everything he did and he was so good in trial.  As news of his passing spread, former prosecutors shared stories of their whale cases against Skip where he somehow kept the juries out for hours and hours.  His name rarely made the news but he was most definitely the lawyer that all of the other lawyers knew and respected.  He was a subtle, but commanding presence in the courtroom.  He was serious but also had an outstanding dry sense of humor.  He was confident and steady in all of his cases and there wasn't a prosecutor born that rattled him.  

He was a respected, dignified, and talented attorney who will be greatly missed.

He was what all of us should aspire to be in this profession.

Saturday, August 5, 2023

Of Symptoms and Larger Problems

The Houston Chronicle ran an article this week about local criminal defense attorney Jerome Godnich and the fact that he made over half a million dollars last year in court-appointed fees.  In my current role as president of the Harris County Criminal Lawyers' Association, I was interviewed at length by Neena Satija, the reporter who wrote the article, although a lot of what we talked about didn't end up in the story.

The quote of mine that she did use pointed out the fact that I thought Jerome (as well as other lawyers who have recently come under the microscope for taking on too many cases) gets appointed on so many cases because judges know he is a good and competent lawyer.  In typical fashion (in what has become the story of my life since becoming HCCLA president), by 9 a.m., I'd received one e-mail saying I needed to defend Jerome more strongly and another saying I didn't blast him enough.  

It's days like these that I really miss smoking.

The point that I was trying to convey to Neena when she interviewed me was that I thought that overloaded attorneys are a symptom of a much larger problem.  The larger problem being that there aren't enough qualified lawyers to handle the more complex and serious cases that permeate the CJC on a daily basis.  I also pointed out that the only difference between those overloaded lawyers and myself is that I regulate myself on how many open and active cases I'm willing to take on at any given time.  And I'm routinely asked why I'm not popping up on the list more often. 

Couple that shortage with the way (as opposed to the amount) attorneys doing indigent defense in Harris County are paid, and voila!, you get the incentivization of the overloaded lawyer.

As I wrote back in 2017, the issue in Harris County when it comes to indigent defense isn't the amount that lawyers get paid, but when they get paid.  Under the system, attorneys aren't supposed to get paid for the work that they do on a case until the case is finally disposed of.  As I noted back then, every judge I know is willing to let an attorney file an interim voucher if they need to, but generally, we are supposed to finish the case before asking to be paid for it.  Under that system, an attorney at any given moment can be owed thousands of dollars by the county and is working on the promise that they will get paid eventually.  

Unfortunately, we attorneys aren't provided the same courtesy by people we owe money to.  I wouldn't get very far with my bank if I told them that I'll pay my mortgage as soon as I'm done living in my house.

The way attorneys who rely on court appointments keep their income stabilized is by keeping a steady flow of accepting new cases as older cases are disposed of.  Ideally, that will lead to cases being resolved on a regular basis and an attorney being able to be paid.  The problem is that it isn't an exact science, especially when dealing with more complicated, first-degree cases.  Those cases are far more likely to be set for trial, and how quickly they get to trial can vary drastically on a case-by-case basis.  If a lawyer's balance of incoming to outgoing cases isn't properly managed, that lawyer could potentially go a couple of months (or longer) without getting a paycheck.  

Years ago, when I described how the system worked to my dad, he analogized it to a pipeline, which is appropriate on several levels.  Some attorneys are content to keep a nice, steady flow of cases in their pipelines.

Others keep their pipelines on full blast.

If you are a competent lawyer who handles those first-degree cases, the Courts are more than happy to facilitate the full-blast pressure.

For many critics of the Harris County Criminal Justice System, the suggested answer has been a larger Public Defender's Office.  Given the size of Harris County, the PD's Office is relatively small and handles far less than even half the cases requiring indigent representation.  Some have advocated that the PD's Office be made large enough to handle all indigent defendants in Harris County.   Although I have a tremendous amount of respect for the Harris County PD's Office, I think there are quite a few problems with that idea.  I think it is feasible that the Office grow significantly and take a larger percentage of cases, but that's going to come at a much higher price tag for the County.  Additionally, the PD's Office has some very strict guidelines regarding their case counts and they actually adhere to them.  Throw in things like conflicts of interest and how to handle co-defendants, and I don't think that the private Defense Bar will ever be fully removed from indigent defense, but I could be wrong.  There are just too many Defendants.

Although I think that growing the Public Defender's Office would be helpful to the situation somewhat, I think that more meaningful change can be made by revamping the current case management system (Federation Systems Authentication Gateway aka FDAMS) in a way that bolsters accountability by 1) implementing case caps; and 2) accommodating a bi-monthly payment system.  It would definitely be a big change, but a worthwhile one.

Addressing the issue of case caps first, I have always thought that the standard of how many cases a lawyer handled in a year was less important than how many cases a lawyer was handling at a time.  Under a revamped FDAMS system, each attorney's cases would be tracked as well as the degree of each case.  The judges (or whatever powers that be) could establish how many cases (and of what degree) an attorney was allowed to be appointed to at any given moment.  For example, let's say 15 first-degrees, 25 second-degrees, and 60 third-degrees or State Jails were the numbers.  If an attorney has hit that limit (on any given degree) then they simply won't be eligible to pop up on the list for that degree.  Under that system, the overloaded attorney could still find a way to get overloaded, but not with appointed cases from Harris County.

Switching to the bi-monthly payment system would be more problematic to implement, and the idea would definitely face some pushback from multiple parties -- including the attorneys taking appointments.  I don't do Federal appointments, but I've heard that they follow a system of incremental payments rather than requiring a case be completed before an attorney could file a voucher.  This system would require attorneys to keep more detailed and current records of the work they do on cases, but there would be a two-fold benefit to doing it.

The first and most obvious benefit would be that attorneys would be able to rely on regular payments for the work they had done during the pay period.  There would be no need to keep "the pipeline" full and flowing and therefore the need to overload wouldn't be so tempting.  The second benefit would help not just the attorneys, but the clients and the courts as well.  By logging in the hours on a case in real-time (rather than waiting until a case was finally disposed of), the courts would have access to seeing that cases were actually being worked on.

It's not an infrequent complaint from indigent defendants that they feel their attorney isn't doing any work on their case.   This system would allow the court to check out what hours had been logged on a case thus far to see whether or not those complaints are valid or not.  If a client alleges that their attorney hasn't communicated with them, this system would easily confirm or deny that allegation.  It would incentivize the attorney to make sure he or she is doing what he is supposed to do on a case or risk having to explain themselves to the court.

Like many other attorneys I know, our law firm utilizes to manage our caseloads.  The type of time management accounting that I suggest is a standard part of their platform.  Using this system, attorneys can look at the time they spend on each individual case as well as look at a big picture of their billable hours on all cases over a time period.  Although this may seem like a drastic change from how Harris County currently does things, this is basically just running FDAMS as if it were an actual law firm.

My thoughts are that these changes to the FDAMS system would create an immediate and positive change in the quality of representation of indigent defendants while providing accountability for the system as a whole.  I have no doubt that this would be somewhat difficult to implement, but it would be far from impossible given the advances in technology that we see every day.  I think it would also ultimately be far cheaper than hiring one hundred new public defenders that would be required to keep up with all of the cases filed every day in Harris County.

I'm sure that there are probably some pitfalls in my plan that I'm overlooking, but I'd love to discuss them with anybody willing to have a serious conversation about them.  

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...