Where Kim Ogg Jumped the Shark

Back in September of 2013, when Kim Ogg announced her candidacy for Harris County District Attorney, I made the statement "I'm just happy that we have two candidates in the race who actually care about Criminal Justice."  I'd known Kim for years and thought highly of her and her no-nonsense approach to her job.  She was certainly a better candidate than the moronic Lloyd Oliver (whom she easily defeated in the Democratic primary) and she certainly wasn't as mean-spirited and incompetent as Pat Lykos.

Although I still planned on supporting Devon Anderson for District Attorney, I didn't think there would be too much negative to say about Kim.  I was actually looking forward to the debating of the issues the affected Harris County Criminal Justice.

There was a warning sign (at the time of Kim's announcement) that foreshadowed a dirty campaign, unfortunately.  Photos published by Dave "Big Jolly" Jennings on his website here  showed Ogg shaking hands with self-proclaimed "energy trader" (and husband of Rachel Palmer), Don Hooper -- as Palmer's attorney Clay Rawlings and former-Lykos 1st Assistant Jim Leitner smile in the background.  Why exactly would a former Republican candidate for D.A. and a self-proclaimed "Republican Activist" be at a Democrat's campaign announcement?

Despite Kim's affiliation with Hooper and Leitner, I remained optimistic that a good, clean campaign would be run.  Sadly, Kim's press conference yesterday illustrated again that politics bring out the worst in otherwise good people.

Yesterday, the Democratic candidate for D.A. decided to make intellectually dishonest attacks on the Harris County District Attorney's Office over the Office's handling of the investigation into former-HPD Homicide Sergeant Ryan Chandler.

In the interest of full disclosure, I'll tell you right now that Ryan Chandler is a good friend of mine.  His wife, Inger (formerly Hampton) Chandler is someone that I consider to be one of my best friends.  Ryan visited me in the hospital when I was recuperating from chemo, this time last year.  I was invited to their wedding and I gladly attended.  I know what has been written about Ryan ad nauseum.  He is still my friend and he is a good friend.

So, if you want to take the following with a grain of salt, feel free.

When the news of the investigation into Ryan began, District Attorney Devon Anderson recused the Office from the investigation due to the fact that Inger was an Assistant District Attorney there.  It was a no-brainer of a decision and the Montgomery County District Attorney's Office was brought in to handle the investigation.  No criminal charges were filed.

This was standard operating procedure and one that has been frequently done in other instances involving potential conflicts of interest with a prosecuting agency.  The rules were followed and the Harris County District Attorney's Office never became involved with the handling of the case.  The results were entirely out of that Office's hands.

And Kim Ogg knows that.  Yet, she decided to attempt to make a disingenuous argument in order to jump on the wave of attention that the HPD scandal is currently attracting.

As most of you probably are aware, Houston Chronicle reporter James Pinkerton (who is apparently the head of the paper's Ryan Chandler Bureau) has been writing a series of articles about the HPD Homicide Scandal.  In addition to covering the different cases involved and the people affected, Pinkerton has also covered everything from Ryan's grades in guitar class in Junior College to his high school classmates' belief that he would become a radio DJ.  The Warren Commission didn't get this much detail when they looked into Oswald.

Kim knew that all she would have to do was mention Ryan Chandler's name in a press release and Pinkerton would come running with a pen and paper in hand.  She knew that she could make the silly argument that the D.A.'s Office somehow did wrong by recusing itself and he would write the article as if it were gospel.   Kim didn't disappoint him.

"The DA has cut another backroom deal, to the benefit of a political supporter [Chandler], the romantic partner and current husband of the DA's lawyer in charge of her conviction integrity unit."

"Romantic partner and current husband"?  Ooh.  Sounds salacious.  "Backroom deal"?  Sounds dirty.

Devon Anderson removed her Office from all involvement in the case to specifically avoid any questions about the propriety of how it was being handled.  She asked a neighboring county's District Attorney to investigate.

But, wait, Kim Ogg doesn't think that Montgomery County D.A. Brett Ligon should have been the investigating Chandler, either.  Why?  Because Brett Ligon formerly worked for the HPD Police Union.  His ties to representing police officers in employment matters somehow made him an unfair investigator?

That's kind of a funny accusation coming from Kim Ogg, who also has a lengthy history of representing police officers in "employment matters" and brags of it ON HER OWN WEBSITE.  Calling Brett Ligon's integrity into question was baseless and silly.

All of this press conference from Kim Ogg is baseless and silly, too.  Kim has been practicing law since I was in junior high school.  She knows that the recusal of the Office was handled appropriately, yet she deliberately misled the Press for political advantage.

And that's a move straight out of the Pat Lykos playbook.

Kim, you're better than that.  At least, I thought you were.

The Sad Reality of Mental Illness

Like most of you, I was genuinely surprised to learn of the death of Robin Williams yesterday.

Although I make no claims of being his "biggest" fan, I grew up watching him.  His career coincided with my childhood and I can remember finding him wildly hysterical when I was younger.  As I grew older, I found him much more compelling as a dramatic actor than as a comedian and I rank "Dead Poets Society" as one of my all-time favorite movies.

Even though I may not have enjoyed many of his zanier roles as much as his more sedate ones, I liked Robin Williams.  I thought he busted his butt to use his celebrity to help good causes.  He had his personal demons, but at the end of the day there was something about him that conveyed he was a decent person.  More so than most celebrities in Hollywood, there was something about Robin Williams that made me, and many others, feel like we knew him.

I think that's why learning that he took his own life yesterday feels so shocking.  It is hard for us to reconcile the wild comedian with the man who took his own life while suffering from depression.

But it shouldn't be.

Robin Williams was suffering from the mental illness of depression.  It should be no more shocking that he took his own life as a result of it than it would be to learn that a person suffering from cancer has died of it.    Please don't misconstrue what I'm saying -- it doesn't make his death any less sad.  It just shouldn't be surprising.

I say this because it is my belief that the majority of people in our society pay lip service to mental illness, but they never really take time to grasp the reality of it.  We can nod sympathetically when we hear of a friend suffering from bi-polar disorder or depression, but do we ever truly give it the understanding that we would a more recognized illness?

Take a moment and ask yourself if you would give the same credence to both of the following statements:

"Bob can't come to work today because he has the flu," and "Bob can't come to work today because he is having a psychotic episode due to previously diagnosed schizophrenia."

Do you consider both of those sentences the same?  I doubt it.  Nobody would blink at someone missing work due to the flu.  However, a mental illness excuse, at best, would draw skepticism.  At worst, it draws fear.

As most of you know, issues of mental illness are very personal to me because of a heartbreaking experience that occurred a few years ago with a friend from high school.  And  earlier this year I found myself looking at mental illness from a more clinical perspective when I (unsuccessfully) utilized the Insanity Defense in my representation of a defendant in a murder case.

The death of the victim in the case was brutal and indicative of someone out of control of his "right" mind.  There was no motive, but there was explanation.  My client had extreme mental health history dating back for over twelve years.  He had been experiencing auditory and visual hallucinations coupled with homicidal and suicidal ideations since his early teenage years.  He was diagnosed as paranoid schizophrenic and had repeated admissions to psychiatric facilities throughout his life.

His most recent trip to the psychiatric hospital had ended in his release the day before he killed the victim.  Immediately after her death, he attempted to check himself back in to a hospital -- telling the admitting staff that people were trying to kill him and that he believed he may have killed one of them.  He asked that the police be sent to investigate.

In a trial in Texas where the Defense utilizes the Insanity Defense, the jury is not allowed to be told that a "Not Guilty by Reason of Insanity" verdict results in the Defendant being sent to a lockdown mental health treatment facility.  The Code of Criminal Procedure states:

"Art. 46C.154.  INFORMING JURY REGARDING CONSEQUENCES OF ACQUITTAL.  The court, the attorney representing the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of a not guilty by reason of insanity is returned."

In trial, the Defense has to prove an Insanity Defense beyond a preponderance of the evidence, meaning that there is a better than 50% chance that "as a result of severe mental disease or defect," the defendant "did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of law."

With the mental health background of my client, the expert testimony of the doctor who examined him, the facts of the case and the assistance of my friends and fellow attorneys Michael Edwards and Jason Truitt, I felt I had an outstanding example of a true insanity defense.  Judge Susan Brown gave us a fair trial and prosecutors Tameika Badger-Carter and Denise Oncken were above board and great to deal with throughout.

But the jury rejected the Insanity Defense.  My client was found guilty and sentenced to 25 years in prison

Why?  I can't say for sure.

Maybe I did a bad job conveying it or maybe it is just sour grapes after the fact, but I don't feel that my client's mental illness was given the true consideration that it deserved.

I would surmise that the brutality of the crime was frightening and upsetting to the jury.  Something as intangible as "mental illness" could never excuse such a heinous act.  Unlike cancer, pneumonia, Ebola, or even the flu, you can't see mental illness.  You can't put it on a slide and put it under a microscope and confirm its existence.  There is nothing concrete to prove to a juror how real it is.

But it is so very real.  It isn't just a topic that we should pay lip service to.  It is something that needs much more than just a sympathetic nod that comes with no attempt at true understanding.

If it weren't real, then why on Earth would a successful and seemingly joyful person like Robin Williams choose to end his life?

Robin Williams did a lot of good things for a lot of people during his lifetime.  He was one of those celebrities that seemed to constantly be leading the charge when a cause needed assistance.

Maybe in his death, he can continue that legacy by bringing true understanding and assistance to those suffering from mental illness.

An Important Breakfast

In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar.  We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.

"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.

"I've been a defense attorney for about five minutes," I replied.  "I don't really think I've got the depth of experience on this side to do that blog post quite yet."

Over the past five years, I've revisited that conversation frequently.  There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor.  It could even be humorous.  I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it.  Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.

In the back of my mind, however, I did have an idea for a blog post.  It focused on one simple theme.

That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.

I'm not going to give any details of my client's case.  They aren't really relevant -- other than to say he was charged with a low level misdemeanor.  My client was a blue collar guy.  He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.

A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast.  Unfortunately, I had to be back in Harris County for a setting, and declined.

This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.

We had met two weeks ago in my office and we had gone over every last detail of his case.  I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal.  In the terms of factual evidence, it wasn't a very debatable point.  Despite my clear advice, he said he wanted to think about it.  I understood.

We talked on the phone a week ago and he said that he was still mulling it over.  He said he would call me back later in the week and let me know what his decision was.  I told him that was fine.

We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.

So this morning, we met for breakfast at a greasy spoon restaurant.  I got there before he did and ordered a coffee.  He arrived a few minutes later.  We talked briefly about the pros and cons of his case and I gave him my advice.  He listened intently, but he didn't really say much.

There was an uncomfortable silence while we ate our food.  I didn't want to press him for an answer as to whether or not he wanted to take the prosecutor's plea offer.  I knew he was processing the information.  Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence.  So, I made small talk with him.  The more small talk I made, the more I realized how very little I knew about my client's personal life.

"You know," I said.  "I don't even know if you are married."

"I was," he said.  I was about to make a joke about how many times I "was" married, but for some reason, I refrained.  I'm glad I didn't say anything.

"We were married for 29 years," he continued, "but she died of breast cancer in 2009."

"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.

"I broke my back in two places in an accident the next year," he said.  "I haven't really been able to move right since."  He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month.  He wasn't trying to elicit sympathy from me.  He was just telling me about himself.

He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.

"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"

At the end of breakfast, I picked up the check.  He thanked me for breakfast, but more importantly for meeting him for breakfast.  When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day.  As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.

When we got to court, I talked to the prosecutor.  Objectively, she was reasonable.  She said that she would agree to a "time served" offer, but she was going to raise the fine significantly.  I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer.  She wasn't all that interested in what he had going on in his life.

And the case was resolved.

So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?

What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole.  Generally, their judgment of a person is based on the crime they are charged with.  I don't say that in an accusatory manner.  That was how I operated as a prosecutor when I held that position.

As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history.  We get to know our clients.

Or at least we should.

I should have done a better job of getting to know my client long before "plea or trial" day.  I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day.  I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.

I could have done a better job of letting them know that my client was not defined by the crime he was charged with.

So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act.   A Prosecutor has more of a tendency to look at the act alleged and then judge the person.

That's the difference.  Everything else flows from that.

Max Christiana Schaffer

My thoughts and prayers are with my friend and fellow attorney, Kent Schaffer, on the loss of his daughter, Max, who passed away last week at the age of 28.

Although I don't know Kent as well as I know some other attorneys at the CJC, my wife and I had the opportunity to meet Max one time when she was at dinner with Kent.  The pride and love that Kent had and continues to have for her was very evident as he introduced us.

As a parent, I don't even want to begin to imagine all that he and his family are having to come to terms with.

I wish that there was something more that I could say that was more eloquent than this, but I hope that Kent knows that everyone in our criminal law community's heart is aching for his loss.

Please keep him and his family in your thoughts and prayers.