Wednesday, June 14, 2017

Kim Ogg's Difficult Position

The Houston Chronicle is reporting today that former Death Row inmate, Alfred Dewayne Brown, is suing Houston and Harris County for damages regarding his reversed conviction in a Capital Murder case.  Brown's case, as you probably remember, was the subject of the Pulitzer Prize-winning articles written by the Chronicle's Lisa Falkenberg in 2014.  Although he was initially sentenced to death for the murders of police officer Charles Clark and clerk Alfredia Jones, his case was ultimately reversed.

The short version of why Brown's case was reversed is that exculpatory evidence (in the form of cell phone records that corroborated Brown's alibi) had not been turned over to the defense nor admitted in trial.  When the issue was raised, there was no dispute that Brown deserved a new trial.  If I recall correctly, the D.A.'s Office was not opposed to him being granted a new trial.

After the new trial was granted, however, the District Attorney's Office ultimately arrived at the conclusion that they no longer had the evidence or witnesses to retry Brown.  The case was ultimately dismissed.

The decision to dismiss the case was not an easy one.  The homicide detectives in the case were adamant that Brown was factually guilty, and many in the D.A.'s Office did not disagree.

They just lacked the proof to take it to trial again.

So, when Brown sought compensation from the State, which required him being declared "actually innocent" of the charges, then-District Attorney Devon Anderson refused to endorse such an agreement.  Obviously, that's not sitting very well with Mr. Brown.

Brown's lawsuit, targeting the county, most likely could be easily resolved if current District Attorney Kim Ogg agrees that Brown is innocent.  If I understand the procedure correctly, her agreement on actual innocence would clear many obstacles for Brown in his quest to receive compensation from the State.

All of this puts Kim Ogg in a difficult position.  Although Ogg ran as a Democrat with a significant amount of funding from George Soros, a vocal death penalty opponent, she has significant ties to the law enforcement community.  Her past history as a prosecutor and subsequently CrimeStoppers made her a familiar and popular figure with the police, back in the day.

Some of Ogg's policies have strained those old ties to her police friends, and I'm sure she has no desire to strain them further.  If she adopts the official position that Brown is actually innocent, she will be causing some irreparable damage to her relationship with the police -- specifically HPD Homicide.

But on the flip side, if she doesn't agree to declare that the D.A.'s Office believes Brown to be actually innocent, she is going to damage her relationship with the defense bar and with local Dems.  Nothing bolsters the argument against the Death Penalty like having a person wrongfully sent to Death Row.  Given Harris County's dubious distinction as the Death Penalty Capital of the State and Country, an actual innocence finding from here would be fantastic PR for Death Penalty opponents.

Ogg is not in an enviable position for a progressive District Attorney.

My guess is that Mr. Brown is ultimately going to get an actual innocence agreement from Ogg.  In the end, she'll ultimately concede to her true voting base.  She won't like being in the position, and I imagine she won't be the person on television announcing her decision.

I also doubt that there will be any detailed rationale for her decision -- at least not one based on the facts of the case.

Wednesday, June 7, 2017

Death, Defenses, Decisions, and Denny's

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 31, 2017

Coaches

As most people who have met me know, I'm a very proud Native of Bryan, Texas.  Although I haven't lived there since August of 1996, it is my hometown and I hold it near and dear to my heart.  My wife is from there, too, and we visit pretty regularly.

Every morning, I go through my news websites, which consist of checking CNN, the Houston Chronicle, and then the Bryan/College Station Eagle.  Although Houston is my home now, and the hometown of both my boys, Bryan is never too far away from me.  That's a part of my life that I am grateful for.

Today, I saw two pieces of news from my hometown that made me stop and think about growing up, and how much those days shape who you are and who you will become.  Before I go too much further, let me expressly state that I am NOT reliving Glory Days with this post. Under no stretch of the imagination was I a star (or even semi-decent) athlete.  I was terrible.  I weighed 160 lbs, ran about a 3 minute 40 yard dash, and couldn't catch a football if you handed it to me.

But I played high school football for Bryan High School.  It largely consisted of me getting the crap knocked out of me during practice and sitting on the bench during games, but I "played."  At the end of my senior year, we finished 4-7 and I couldn't be more relieved that it was over.

But I was proud that no matter how bad it was, I never quit.

Looking back on those years, I remember each and every one of the coaches that I had.  You spend a lot of time talking to them when you are consistently on the sidelines.  The ones that I played for growing up in Bryan are people that I still remember vividly 26 years past my graduation.  The vast majority of my favorite stories from high school happened in the brutal heat of the practice field of Bryan High School, which is now named Merrill Green Stadium, after our head coach.

I adored Coach Green.  He ultimately retired and became President of the School Board.  He's an icon in the town, and I'm proud to say I (limitedly) played for him.  Other coaches stand out in my memories, as well.  Coach Patterson, Coach Bergland, Coach Vass, Coach Batchelor, Coach Fritsche.  I have funny stories involving them all.

But my favorite coach was David Powers.  He retired this year after 34 years of coaching.  Although he finished his coaching career as the Head Baseball coach, I knew him way back when he coached junior high and then high school.  He coached baseball and he also coached the defensive ends in football.

He was the faculty sponsor of the Fellowship of Christian Athletes when I was in 9th grade.  I remember that he always brought his son, Beau, to the school and games with him whenever he could.  On top of being a good coach, he was a good example.

Yeah, that's me, rockin' the butt cut, next to Coach Powers.

Coach Powers brought out the best in his good players, and he was never anything less than encouraging of those of us who stunk were not so good.  As a coach he made sure his door was open to those kids who needed advice.  He was realistic and real with the kids he talked to, and we all respected him for it.  I remember in 9th grade when two kids had a beef with each other, he mediated it, making sure that the beef was done that day and didn't carry over.

I remember one night in January of 1991.  I went to eat at Red Lobster with my girlfriend and her mom.  As we were waiting for our table, the news broke that the U.S. had begun military operations against Iraq.  By coincidence, Coach Powers was in the lobby, and was watching the breaking news.  I remember his look of concern and he told me he was praying for the soldiers in the Middle East and he was praying for those of us who might be of age to be called there.  It was genuine worry over the kids he coached and it was something I never forgot.

Although our football team my senior team wasn't all that great, our basketball team was.  We had a lot of good players who went on to play college ball, and they made our senior year something to talk to about.

One of our star players was Eric Jackson.  Like most guys I went to school with in Bryan, I can't even remember when I first met him.  He was one of those guys that it seems like I always knew.  

We weren't particularly close, although we were friendly.  He was a very outgoing and very nice guy.  I remember him as being very religious and very devoted to being the best basketball player and teammate that he could be.  As it is with so many classmates, I kept up with him on Facebook and was glad to see that he was happy in life. Married.  Kids.  He became a high school basketball coach.
  
Over the years, Eric coached at Temple, Tomball, Grand Prairie, Hillsboro, and Kennedy Middle School.  Ultimately, he ended up as head coach of the basketball program at Rudder High School in Bryan.  In 2010, he was named Coach of the Year by the Houston Area Basketball Coaches Association.  It was an award aptly given to a good man.

I was extremely saddened to read that Eric passed away yesterday after having been ill for some time.  My heart goes out to his family and all of those he coached and influenced.  But in this time of sadness, it has been heartwarming to see how many teammates and kids that he coached sharing how much he meant to them.  Tributes of how he sent them inspirational Bible passages, and guided them through tough times were a good reminder of the positive influences that our coaches often play in our lives.

We are usually too young to fully appreciate our coaches in the time and the moment when they are in our lives.  Often it is only hindsight that makes us fully appreciate the jobs they did.  In retrospect, those coaches are the first adults that treat kids as some semblance of an adult.  They share their experience, their example, and their advice.  They also hold us accountable and make us live up to expectations in a way that is different than what we learn from our families.

As I do with many of my posts, I recognize that I'm probably rambling.  So I'll end this simply by saying "thanks."

Thanks to the coaches like Coach Powers and Coach Jackson.  Thanks for the patience.  Thanks for the guidance.  Thanks for the leadership.  Thanks for caring.  The mark you make on lives may not always be immediately evident, but it becomes so very palpable in our later years.  

Even to us benchwarmers.

Thanks for 34 great years to Coach Powers as he takes his well-deserved retirement.

And thanks to my classmate Eric Jackson for the job he did in shaping so many lives.  His memory and positive influence will carry on longer than he probably ever imagined.

Tuesday, May 23, 2017

Top 10 Signs Your Chief Investigator Might Be Working for the Temple Defense Team

10.  Abruptly ends phone calls with elected District Attorney because "Dick is on the other line."

9.  Currently growing out his beard so that he can look more like Stan Schneider.

8.  Keeps bragging about his how his "buddy in Katy" is cooler than all of his old policeman friends.

7.  Received a prestigious award from a prominent Defense Attorney Organization for his work on the Temple Case.

6.  Keeps claiming that the Katy High School Football Team of 1987 was the greatest high school football team in Texas History.

5.  No longer cries in interview with 48 Hours about his old police friends no longer speaking to him.

4.  Currently investigating a group of people known as "the Katy Boys" on their ties to Russia.

3.  Denholm complains that all Temple ever talks about is "Steve.  Steve.  Steve." these days.

2.  Hanging out in felony dockets, looking for witnesses that can help him pin a murder on somebody else.

1.  Wears David Temple's high school letter jacket to work.

Freudian Slip

I received an e-mail today from one of David Temple's attorneys, Romy Kaplan, containing a copy of a motion filed by the Harris County District Attorney's Office today.  The motion, entitled Harris County District Attorney's Amended Motion to Recuse and for Appointment of District Attorney Pro Tem, contained the following pertinent sections:



Now, it is somewhat funny seeing that the Harris County is amending a Motion to Recuse themselves after the original Motion was already granted and new prosecutors appointed.  It's a little bit of "water under the bridge" at this point and I'm not even sure that this Motion has any actual legal bearing.  It would kind of be like me asking to go back and time and claiming that Lykos didn't fire me, because I quit.  

It's a small point.  Obviously the Office was trying to correct the impression that Chief D.A. Investigator Steve Clappart had ever been actually employed by David Temple's defense team.  

Another thing that would have helped them from this impression was, I don't know, NOT STATING IN A LEGAL DOCUMENT THAT STEVE CLAPPART HAD BEEN RETAINED BY TEAM TEMPLE.

But, bygones.  

The Amended Motion goes on to say that an earlier draft of the Motion had inadvertently stated that Clappart was a Temple employee, and that the earlier draft had accidentally been filed by mistake.

Um, okay.  So, at some point early on, the author of the original Motion had been under the belief that Clappart was a Temple employee, but some time later on figured out that he wasn't?  Was there some uncertainty about this somewhere?  I mean, he and his slow-witted friend, John Denholm did accept some Awards on behalf of their work on Temple's defense, and attended the Temple press conference together.

It would seem that in the five months that Kim Ogg had spent "reviewing the Temple case," she might have at least determined whether or not her Chief Investigator was employed by the Defendant.  Seems like kind of a major detail to me, but who am I to judge?

Perhaps it was just a really really humongous Freudian Slip.

NOTE:  Nowhere in the Amended Motion did it mention that Clappart was still actively investigating the Temple case, nor did the District Attorney's Office issue any denials of his ongoing investigation. 

Friday, May 19, 2017

Steve Clappart and The Meaning of Recusal

One of the more interesting revelations from the Harris County District Attorney's Office's Motion to Recuse on the David Temple trial on May 5th was that now-Chief Investigator of the D.A.'s Office, Steve Clappart was actually retained by the Temple defense team.

From the Motion:

Prior to this subtle, yet important, revelation, I think it is fair to say that most of us did not realize Clappart had actually been an employee of David Temple's.  We just thought he was looking into some information on behalf of his buddy, John Denholm.  The fact that the lead investigator for the D.A.'s Office actually used to work for David Temple really begs the question "why did it take Kim Ogg so long to realize the tremendous conflict of interest the Office had?"

Regardless of how insanely long it took Ogg to recuse the Office, she ultimately did do so and the Harris County District Attorney's Office is no longer involved in the Temple case at all.

Right?

Well, maybe not.

I received word from multiple sources this morning that former-Temple-investigator-turned-Chief-Investigator-for-the-D.A.'s-Office Steve Clappart may not have gotten the memo on that.

Apparently, one of the named "witnesses" in Clappart and Denholm's silly alternative suspect warrant picked up a Felony D.W.I. warrant this week in a Harris County District Court.  Despite the Office's self-recusal on the Temple case, those sources told me this morning that Clappart went to the court to inform prosecutors not to allow the case to plead without his approval.  He apparently wants to use the witness's precarious legal position as an opportunity to get some real "truth about Temple" out of the guy.

This presents a couple of interesting questions:

1.  Why is the Chief Investigator of all the Investigators in Harris County, Texas so interested in a Felony DWI case?

2.  Does Clappart think he should be approaching a Defendant charged with a felony and interviewing him?

3.  If the D.A.'s Office is no longer handling the prosecution of David Temple, does that mean they can handle his defense?  That seems to be the angle Clappart is working.

4.  Are taxpayers now paying Clappart to work on the Temple defense?

5.  How did Clappart even know this guy got charged with a DWI?  Hundreds of people get charged with a crime in Harris County each day.  How did he know about this one?  The Office can put a "tickler" on the computer for notifications if a certain person picks up new charges.  Did Clappart or (more likely) John Denholm put a "tickler" for this particular witness?

6.  If Denholm or Clappart did put a tickler out for parties they believed to be involved in the Temple case, are they flagrantly violating Kim Ogg's Motion to Recuse?

I don't know the answer to these questions, but it does appear that the Office has not completely relinquished control of the David Temple case quite yet. It seems like this is something that Kim Ogg should probably clarify to the public.

Or, at least, clarify it to Clappart.


Thursday, May 18, 2017

David Temple's New Prosecutors

The Houston Chronicle's Brian Rogers reported today that 178th District Court Judge Kelli Johnson has appointed prosecutors Lisa Tanner and Bill Turner from the Texas Attorney General's Office to prosecute the State of Texas vs. Temple.

To say that Judge Johnson's choice is a good one would be a massive understatement.

Lisa has been with the Attorney General's Office for over twenty years and has been their heavy hitter on tough cases across the State.  She most recently handled the retrial of Bernie Tiede, who was the subject of the movie Bernie.  Mr. Tiede is currently serving 99 years thanks to her efforts.  She was also responsible for trying the actual killer for the murder of Michael Morton's wife.  In short, she is a bad ass.

Bill is the former elected District Attorney of Brazos County where he served before retiring in 2012.  I spent two and a half years working as an intern for him when I was at Texas A&M, and I consider him to be a mentor and one of the best trial prosecutors I've ever seen.  I watched him try three death capitals in the course of one summer and he was amazing in them all.

Although Bill and Lisa are well known for their trial skills, they are even more known for their ethical reputations and integrity.  Neither is afraid to try a tough case, nor are they afraid to dismiss it if it proves to be the right thing to do.  Popularity and public opinion won't be a factor when it comes to how they will handle the Temple case.

When Bill was the D.A. of Brazos County, he prosecuted the Chairman of the Board of Regents for Texas A&M, as well as The University's vice-president.  That wasn't exactly a popular move in Aggieland, especially for an elected Democrat in a heavily Republican county, but Bill forged ahead without concern to public opinion or any external matters.  He did what the law dictated.

And he won.

I've always considered him to be the Atticus Finch of prosecution.  In addition to taking on the upper echelon of A&M, Bill also went toe-to-toe with a corrupt sheriff where his own safety was threatened, and he didn't back away from that either.  He's a man that I admire greatly.

Regardless of what happens on the Temple case after today, the rationale for it will be based on evidence and only evidence.  As I mentioned on Twitter, Bill and Lisa are the gold standard when it comes to prosecution and the case could not be in better hands.

Their appointment is an outstanding choice by Judge Johnson.

Friday, May 5, 2017

Kim Ogg (Finally) Does the Right Thing

Despite my predictions in my previous post about what I believed was going to happen today during David Temple's court appearance in the 178th District Court, the Harris County District Attorney's Office finally recused itself from the high publicity murder case.

Regardless of the strengths or weaknesses of the facts of the case against Temple, it was unquestionably the right thing to do.  Although Kim Ogg took entirely too long arriving at (what many felt was) the obvious conclusion, the important thing is that she ultimately got there.  Whatever decisions are made about David Temple from here on out will be made without the improper influence of the members of Temple's defense team who now work within Ogg's Administration.

It is human nature to still feel frustration about how long Ogg took to recuse herself from the case and how little she communicated with Belinda Temple's family during the ordeal.  Her explanation that she needed more time to "review the case" rang hollow, and I heard from a couple of sources that the Temple file never actually left the hallways of the Appellate Division.  More likely, she needed some time to work up the courage to tell DeGuerin that she couldn't dismiss his case for him.

Whatever went on behind the scenes, Kim Ogg can now focus on being a progressive District Attorney in a major metropolitan area without having the looming specter of David Temple hanging over her head.  Although she may not realize it at the moment, she did herself a huge favor by finally letting go of the case.  Her reputation can recover from the appearance of impropriety that she brought upon herself for the first four months of her tenure.

More importantly, the family of Belinda Temple can know that the person or agency handling their case from now on doesn't owe David Temple's attorney any huge favors, or employ people like Steve Clappart or John Denholm, who would be willing to file capital murder charges on someone just to cast doubt on David Temple's guilt.

What happens after today will be up to somebody else, but the State of Texas versus David Temple can hopefully finally escape all of the sideshow that has been going on around it and return to the facts of the case.

If that happens, then today was a good day.

Wednesday, May 3, 2017

Foreshadowing

Last week, the Houston Chronicle ran this article about the Harris County District Attorney's Office dropping charges against Dr. Robert Yetman.  As noted in the article, Dr. Yetman had been granted a mistrial after trial Judge Stacey Bond found that prosecutors had intentionally caused a mistrial by making inflammatory remarks during closing arguments.



The District Attorney's Office under Devon Anderson had appealed Judge Bond's ruling, but the 14th Court of Appeals affirmed.  Last week, District Attorney Kim Ogg announced that the Office would not be appealing the case any further, and formally dismissed charges against Dr. Yetman.  The move was not surprising under the circumstances, and it was the right thing to do.

I did find the press release from Ogg to be noteworthy:
"We do not tolerate professional misconduct, lapses in discipline or excessive zeal to win a case," Ogg said in a press release.  "A prosecutor's special responsibility is to see that justice is done, not simply to win, and never do so illegally."
While the sentiment expressed by Ogg is admirable, it oversimplifies things a bit.  Not tolerating professional misconduct is a noble goal, and in this incident, both prosecutors involved in Yetman's trial were let go from the Office when Ogg took over.  Their termination was certainly an example of Ogg sending a clear message that there are ramifications for prosecutors who push the envelope too far.

However, Ogg could have just as easily stated something along the lines of respecting the ruling of the trial court and 14th Court of Appeals, and dismissed the case.  Her statement was far more broad than that.

My guess is that she made her statement because she is getting close to finally dismissing the case against David Temple, who is on the docket in the 178th District Court on Friday, May 5th.  Despite finding multiple excuses to recuse the District Attorney's Office on multiple other cases for much less significant reasons, Ogg has still steadfastly refused to recuse herself from Temple, despite having at least two people in her upper echelon who directly worked on the case.

I predict that Ogg is going to harken back to her press release on the Yetman case and place her reasoning for the dismissal on Kelly Siegler's doorstep.

The problem with doing this is that it punishes the victim and the victim's family for acts attributed to a prosecutor.  The scenario in Temple is completely different from the one in Yetman.  In Yetman, Judge Bond found that the prosecutors believed themselves to be losing the case, so they deliberately caused a mistrial by making an inappropriate argument.  In Temple, the Court of Appeals decided (in a split decision) that Temple deserved a new trial because Brady evidence was turned over in an untimely manner.

Temple was found guilty in trial and sentenced to Life in prison.  No argument can be made that the prosecution deliberately violated the law to cause a mistrial because they believed they were losing.  That would be the equivalent of arguing that James Harden should have been called for traveling in Monday's 122-76 blowout, and therefore, the Spurs were the actual winners of the game.

If Ogg is going to dismiss a case every time a prosecutor is found to have done something wrong in a reversal, she's going to be firing a lot of prosecutors and dismissing a lot of cases over the next four years.  I don't foresee that really happening, because Ogg is smart enough to know that cases sometimes get reversed as part of the evolution of case law.

But I do predict that Ogg is going to be regurgitating her statement on Yetman in the near future.  She wasn't talking about his case so much as she was providing foreshadowing of what she is about to do on Temple.

Friday, April 28, 2017

Racehorse Haynes

Richard "Racehorse" Haynes passed away this morning.  In today's world, the term "Legend" is thrown around a little too often for my taste, but it was a term that couldn't be more appropriate in describing Mr. Haynes.    For anyone who has had even a passing interest in Texas Criminal Law over the past sixty years, his name was synonymous with, quite simply, being regarded as the Greatest Criminal Defense Attorney. Period.

Basketball had Michael Jordan.  Texas Law had Racehorse Haynes.

When I was in Junior High up in Bryan, a friend of mine's father died, and his wealthy family ended up in a huge legal battle over his estate.  When my friend's mother hired Racehorse Haynes, it was the talk of the town.  You would have thought that Abraham Lincoln was coming to argue a case.  If I recall correctly, the case settled relatively quickly after Mr. Haynes' signing onto the case.

It wasn't until much later that it occurred to me that Mr. Haynes wasn't really known for his experience in Probate and Will cases.  I suppose his reputation was all the case actually needed.

His trials across the state were legendary, and he was legendary for winning them.  If you haven't read Blood and Money or any of the literature on the Cullen Davis trial, you are truly missing out on understanding the legal system and traditions in Texas.

I can't say that I ever really got to know Mr. Haynes.  Although he continued practicing law in the CJC right up until a few years ago, we never had anything together.  I would see him in court and on the elevators from time to time, and it always felt like a celebrity sighting.  He was a relatively short man, who was pretty quiet.   If you didn't know who he was when you saw him, you would never guess that you were in the presence of a Marine who fought at Iwo Jima, or Texas' most famous trial lawyer.

I have often said that the greatest thing about working as a criminal lawyer in Harris County, Texas is that you get to walk amongst Giants.  Our prosecutors, our defense attorneys, our crimes, and our stories are simply the best.

Racehorse Haynes was the indisputable King of those Giants.

Friday, April 7, 2017

Episode Three: Revenge of the Fifth (Amendment) -- A One Act Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston.  [Interior]  A galactic conference room for a Tuesday Show & Tell Meeting.  EMPRESS OGG sits at the head of the table, as the rest of her Imperial Officers sit to the sides.

EMPRESS OGG:  Tell me, Vice Admiral Berg, where do we stand on our budget?

VICE ADMIRAL BERG:  Well, Empress, after farming out the Goforth case, we took another big hit on the budget.  With that and the Irsan case in Planet 184, we've had to outsource two death capitals.  There's a possibility that the tab on the two cases could reach well over a million dollars.

EMPRESS OGG:  A million?!  Mother of Yoda!!

VICE ADMIRAL BERG:  Yes, the numbers are concerning.  We may need to downsize your Imperial Guard.

EMPRESS OGG:  By how many?

VICE ADMIRAL BERG:  Well, um, like all of them?

EMPRESS OGG:  Unacceptable.  There must be another option.

CORPORAL LEITNER:  We could stop recusing ourselves off of death capital cases.

EMPRESS OGG:  That would cause a disturbance in the Soros.

CORPORAL LEITNER:  You mean the Force?

EMPRESS OGG:  No, I mean Soros.  George Soros.  Guy gave me a TON of money!  What we need is a good, high profile case, that I, the Imperial Empress Attorney can personally try, so that the good people of Houston will know that sometimes we keep cases.

LIEUTENANT MITCHAM:  Well, we do actually have a case you might like.  I see that beloved Houston Rockets point guard, James Harden, was robbed at the Toyota Center.

EMPRESS OGG:  Hot damn!  I'm all over it.  Call Jar Jar in here for a press conference.  Do we have a suspect?

LIEUTENANT MITCHAM:  Um, looks like the suspect is J.J. Watt.

EMPRESS OGG:  Nope.  Get me my "Recusal" stamp.

CORPORAL LEITNER:  What are the grounds for recusal?

EMPRESS OGG:  My cousin's neighbor met J.J. once.  Got to avoid that appearance of impropriety, ya know.  No special treatment around this place.  No sirree, Bob.

VICE ADMIRAL BERG:  On to the next order of business . . .

EMPRESS OGG:  Yes, I'd like for you all to extend a warm Oggnacious welcome to our newest employee, community liason, David Temple.

LIEUTENANT MITCHAM:  Uh, THE David Temple?

DAVID TEMPLE:  Howdy, y'all.

EMPRESS OGG:  David comes highly recommended by Jabba Denholm and Boba Clappart.

LIEUTENANT MITCHAM:  Doesn't he still have murder charges pending?

EMPRESS OGG:  For just a little bit longer.

LIEUTENANT MITCHAM:  So, are we recusing the Office now?

EMPRESS OGG:  No.  Why do you ask?

AWKWARD SILENCE

VICE ADMIRAL BERG:  So, on another topic, apparently we've made Viceroy Kubosh angry over this whole Murder for Hire case where the newspaper revealed he was our Informant.

EMPRESS OGG:  How did the newspaper know?  Tom, I thought we agreed you weren't to speak to the Press again after the whole Buzbee Debacle.

VICE ADMIRAL BERG:  It wasn't me, this time.

EMPRESS OGG:  Then what happened?

LIEUTENANT MITCHAM:  Kubosh's name was in the Probable Cause warrant for the arrest.

EMPRESS OGG:  Why was his name put in the warrant?

JABBA DENHOLM:  No way around it.  Gotta put that confidential informant's name in the old warrant-roosky.  Says right there in Penal Code section something or other.

LIEUTENANT MITCHAM:  Actually, you never put a confidential informant's name in a warrant.  That's why they are called "confidential."

JABBA DENHOLM:  Wrong.

LIEUTENANT MITCHAM:  We draft narcotics warrants all the time where we protect confidential informant names.  It is standard practice.

JABBA DENHOLM:  Agree to disagree.  Hey, Jimbo, are you going to finish that breakfast taco?

CORPORAL LEITNER tries to protect the remains of his breakfast taco, only to have DAVID TEMPLE snatch it out of his hand and give it to JABBA.

TEMPLE:  Interception!!

JABBA DENHOLM:  Thanks, buddy.

TEMPLE:  I owe you huge, bro.

JABBA and TEMPLE high five.

EMPRESS OGG:  From now on, no more putting confidential informants' names in warrants so the press can read them.  I'm very disappointed in you, Denholm.  Corporal Leitner, write up a memo detailing Jabba's transgressions and put it in his file.

JABBA DENHOLM:  Oh come on!  How was I supposed to know this?

LIEUTENANT MITCHAM:  Are you sure that you're a lawyer?

JABBA DENHOLM:  Screw you, C3P0.

CAPTAIN KING:  Don't worry, Jabba.  I'll re-write the memo and tone it down so much that it won't even seem like a complaint was ever even filed.

JABBA DENHOLM:  Thanks, Vivian.

EMPRESS OGG:  Okay, good meeting everyone.  We are adjourned.  And remember, what do we say if anyone ever asks us about what we talk about here?

STAFF (IN UNISON):  We plead the Fifth!

EMPRESS OGG:  Excellent.  Dismissed.

CORPORAL LEITNER:  Sigh.  This is just like the Lykos Death Star.

END SCENE

Wednesday, April 5, 2017

Kim Ogg's Ever-Shifting Standards for Recusal

The Houston Chronicle had a "breaking story" today that the Harris County District Attorney's Office under Kim Ogg was recusing itself from the ultra-high publicity capital murder trial of Shannon Miles for the murder of Harris County Sheriff's Deputy Darren Goforth.  Although the story may have been "breaking" news to the intrepid reporters of the Chronicle, the recusal was old news around the CJC and had been mentioned a couple of times here on the blog (in the comments).

The reason for the recusal was because Chief of Staff, Vivian King, had previously represented one or more witnesses involved in the case, including Miles' mother.

That's a relatively removed relationship to the case for Ogg to pull the plug, especially in comparison to her steadfast refusal to recuse the Office from the David Temple case.  The logic to recuse the Office from a case because a staff member represented a potential witness on the case versus not recusing the Office when a staff member represented the actual freaking defendant defies logic.

However, Kim Ogg's ever-shifting standards do make sense, I suppose, if you look at them from her political based motivations.  She took half a million dollars from liberal financier George Soros, and he's not a fan of the death penalty.  However, Shannon Miles is accused of executing a uniformed Harris County Deputy at point blank range.  In any other jurisdiction, the elected D.A. would be chomping at the bit to announce "The State is ready." in front of a jury.  The public would and should expect that, and I guarantee you that the police expect it, as well.

From a political standpoint, Ogg finds herself between a rock and a hard place.

Therefore, it is small wonder that she played the legal equivalent of Six-Degrees-of-Kevin-Bacon while trying to find a way to weasel out of the case.  

The decision to recuse the Office from Goforth/Miles case probably is the right decision in the big scheme of things.  However, as I've noted before the appearance of impropriety in all criminal cases . . .

. . . Not just the ones that Kim Ogg finds are too politically hot to touch.

Monday, April 3, 2017

Clint Greenwood

Like most of you, I was completely dumbfounded to learn about the murder of Clint Greenwood this morning.

Although he and I were not friends, my heart and my sympathy goes out to his family, friends and co-workers.  His death was an act of extreme cowardice and I pray for swift justice for all of those who had anything to do with causing it.

In better days, I always thought Clint was hysterical and wildly entertaining.  He had a larger-than-life personality and was very loved by very many at the CJC.  He leaves an enduring legacy there and he will be remembered.

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.