The courtroom will doubtlessly be packed with media looking for their first glimpse of who will be handling the case on behalf of the Harris County District Attorney's Office under the brand new Kim Ogg Administration. They will also be looking to see if the tone of tomorrow's setting gives any clue to what the Ogg Administration plans to do with the case.
In the wake of the original Findings of Fact handed down by visiting Judge Larry Gist, Temple's attorneys, Casie Gotro and Stanley Schneider, immediately began lobbying then-District Attorney Devon Anderson to recuse the Harris County D.A.'s Office from handling the case. Things have changed substantially since Gotro and Schneider made that request. The incoming Ogg Administration elected not to renew the employment contracts of every single prosecutor who handled anything involving the David Temple case -- with the exception of prosecutor Andrew Smith.
As almost all of the prosecutors who worked on David Temple's case were swept out of the Office, the Ogg Administration simultaneously ushered in three key figures who were central to Temple's defense: Jim Leitner, Steve Clappart, and John Denholm. In doing so, the Ogg Administration seemed to be very open to the idea of not retrying David Temple for shooting his pregnant wife in the head with a shotgun, killing her and their unborn child.
However, the fact that the Ogg Administration brought John Denholm on board is the exact reason why now the Harris County District Attorney's Office should recuse itself from the David Temple case and let another prosecutorial agency handle it. The reasoning is quite simple: although Leitner and Clappart had involvement in the Temple defense, they weren't acting as agents of Temple's defense team -- at least, not on paper. Although Clappart certainly didn't mind standing next to his friend Denholm at the Temple Defense Team press conference, he was technically acting as an investigator for the D.A.'s Office under the Lykos Administration.
Denholm, however, is a different matter. Denholm actually acted as an agent for Dick DeGuerin in defense of David Temple. How do we know that? Because Steve Clappart was nice enough to include that information in his highly questionable Capital Murder warrant for Cody Ray Ellis.
Hell, Denholm is such a member of Team Temple that he filed a grievance with the State Bar against me for blogging about the case. The grievance was rejected.
Since Denholm was a party to the Temple Defense Team, his new employer, the Harris County District Attorney's Office, should be recused from handling any further matters regarding the Temple prosecution. There is a per se conflict of interest. By way of example, when Jim Leitner left his defense practice in 2009 to join the Lykos Administration, the Office voluntarily recused itself from the cases he had handled due to that same type of conflict of interest.
In this instance, however, don't look for Schneider, Gotro or DeGuerin to be pressing for the Office to recuse itself under Kim Ogg. They couldn't be more pleased to have her in the driver's seat. What could be more favorable to Team Temple than hiring three people into the upper Administration who were on record as believing Temple was wrongfully accused? Even more encouraging, Ogg even gave a shout out to DeGuerin in her inauguration speech.
So far, Kim Ogg has expressed much more interest in prosecuting former prosecutors who angered her than prosecuting a man charged with murdering his pregnant wife.
I anticipate that Team Temple will argue with all its might that there is nothing wrong with the D.A.'s Office continuing on with the Temple case. They will do everything they can to invoke the image of Kelly Siegler and an unfair trial as they lobby for a dismissal. Unfortunately for Temple, a reversal is not the same thing as a dismissal. Cases get reversed and sent back for retrial on a fairly routine basis. They don't simply go away because an appellate court reversed them.
The irony is that now David Temple must proceed without the specter of Kelly Siegler. She is no longer a factor in the Temple Trial. The case was reversed in a narrowly split decision, and now Team Temple has to argue the case itself on its own merits. Their efforts to paint Kelly as the true villain in the case are no longer relevant.
Nowhere in their decision (or the Gist Findings of Fact) did the Court of Criminal Appeals indicate that Temple was wrongfully convicted. Nowhere in that decision (or the Gist Findings) did anyone indicate that the ludicrous Capital Murder warrant that Clappart and Denholm wrote was credible. Nowhere in that decision did it say anything other than David Temple was entitled to a new trial.
The State of Texas vs. David Temple is back to Square One.
All the evidence is still there and part of the record -- even those witnesses that DeGuerin would later regret calling to the stand on behalf of the defense (including David Temple, himself). All of that is available to the prosecution for retrial. The first time the jury heard that evidence, they had no issue in quickly convicting Temple and sentencing him to Life in Prison. The chance that another jury would do the exact same thing is substantial -- with or without Kelly Siegler.
There is a reason that Team Temple is begging that the case just be dismissed. What's a free murder amongst friends?
Dismissing the case against David Temple would be an absolute dereliction of duty on the part of the new Administration. Jim Leitner, Steve Clappart and John Denholm's roles in the upper hierarchy would scream of impropriety. It would send a message of Justice truly being for sale.
All of this could be avoided by simply recusing the D.A.'s Office and asking the Attorney General's Office to handle the case instead.
The Ogg Administration should recuse itself from the David Temple case, not out of a duty to David Temple, but out of a duty to the citizens of Harris County. The history of her Administration began being written on January 1st, and how she responds to this case will cast a long shadow. As she stated in her inauguration speech, she owes many people many things for her success.
But she owes the citizens so much more.
And that includes Belinda and Erin Temple.
38 comments:
For all of her talk about "evidence based prosecution", i suspect that Ogg's decisions on the Temple case might be more about "relationship based prosecution." After all, Ogg's new hires include Leitner, Denholm and Clappart.
Great insight Murray. My work on this case and the "new evidence" and "new witness" opened my eyes to just how dirty politics has climbed into bed with Harris County justice.
The Temple files sat in Leitner's office for at least a year or two while he was First Assistant. He either 1) was lazy and never read them, 2) believed Temple was guilty and was buying time, or 3) thought he was innocent and let him continue to sit in prison. But there is a 4th option, Leitner was, and continues to be incompetent. That guy never knew how to do anything but put a badge on his belt.
And then there is Denholm. Remember, he was the lieutenant over HCSO Homicide when the case was filed. He participated in the mock trials to get his deputies ready to testify. If he thought Temple was innocent, why did he allow the case to go to trial on his watch? He never even expressed any concerns about Temple's guilt at the time. I know, he is "for sale." The only thing worse than a "win at all costs prosecutor" is one that is "for sale." Especially one that is an egotistical jackass.
Oh dear, Kim. I already have concerns about your vetting process on the new staff. Seems the misdemeanor prosecutors were told by Mr. Beedle this week that the only cases they’re allowed to take to trial are those where it’s 100% guaranteed the State will win. He told them the defense lawyers are the best lawyers in the courthouse and that the defense lawyers will kick their butts. He told them they’ll only learn from cases they win. Let that sink in for a minute…..that means Mr. Beedle told the newest lawyers in the office that they must win all their trials….the message is clearly: win at all costs, or else.
Maybe Mr. Beedle missed part of your pledge about seeking justice and that the office will not have a win at all costs mentality. If you recall, the cases where the State’s case is locked in all plead. The cases where the State’s case can’t be proven get dismissed. It’s that class of case in between, where there is some question, some issue with evidence collection, issue with a witness, some possible defense, or just an obstinate defendant who wants a fight for the fun of it, that go to trial. It’s also, especially in misdemeanor, almost always the defense that wants a trial….the State doesn’t do a lot of grandstanding demanding misdemeanor trials.
Trials are a challenge, not a show, for prosecutors. It’s a process that challenges the evidence collected and requests a third party, the jury, to decide if the evidence is there to make the case. No prosecutor should be told not to ask a jury to make that decision out of fear of losing a case. Any prosecutor who tells you that they went into trial absolutely knowing and having no doubt the jury would convict is full of crap---there are too many moving parts, and in misdemeanor, too many jury nullification verdicts on lesser crimes for any ADA to be absolutely sure of a win.
You may want to have a chat with Mr. Beedle.
Anon 7:07 a.m.,
If Beedle's message was not to take cases to trial unless the prosecutor was certain he could win beyond a reasonable doubt, that's not a bad message, at all. That's actually quite positive.
Early on in my academic intern career, in another jurisdiction, I heard a prosecutor acknowledge that he couldn't win a case at trial, but the kid deserved to have the crap scared out of him by going through the trial. That's unethical in my opinion. I agree much more with Beedle's take and I don't interpret it as a win at all costs mentality.
I don't know that his message is going to sit real well with MADD in the long run, however.
That's just my opinion.
1. Kim Ogg has created a situation whereby she must recuse the HCDAO
2. Kim Ogg owes Dick DeGuerin big time
3. David Temple is NOT factually innocent and cannot be dismissed
WHOA!!! You can't make this shit up.
So does Kim Ogg seek justice and refer Temple to the Texas Attorney General or will she dance with her benefactors?
Murray, you altered what Anon 7:07 posted, the demand for a case to be a "100% guaranteed win" simply not the same as having an ADA "certain he could win beyond a reasonable doubt". The devil is in the details of exactly what was said/written, so if anyone has a copy it would further the discussion a great deal. If ADA's lose a case under the former ideology, the repercussions might be very important to know since novice ADA's are going to be mighty gun shy if it means what has been suggested.
I hope we will now have felony DAs and chiefs that are allowed to dump impossible cases rather than continuously reset cases in hopes of getting transferred. Leaving crap for your replacement does not build a cohesive team.
Man, it's like 2008 all over again. ADAs and cops wailing and lamenting like they've read something in Revelation or Daniel that shows Ogg was wearing a blue turban like the anti-Christ.
So sorry that some prosecutors think it's so hard to get convictions in Harris County. It must be tough having the power of the entire State of Texas, 300 prosecutors, hundreds of cops, so many forensics experts in the bag for the state that you can't swing a dead cat without hitting a dozen of them, grand juries that are (in the past, more than now) conditioned to indict or not based on the prosecutor's recommendations, and petit jurors in a state where the majority of the people think that the death penalty has probably killed innocent men, but that's OK because some people just need killing'.
I don't know how y'all do it, carrying that big ol' cross around like that. But it's the crown of thorns I just couldn't handle. Y'all be sure and let me know where you hide the last cup you use. I bet I can get a fortune for it on eBay.
It would certainly seem to me that Kim Ogg would WANT her office out of the Temple prosecution for the very reasons which have been expressed on this thread. A change of venue wouldn't be a bad idea either. Public confidence in the independence and objectivity of the elected DA and his or her administration is critical to the future effectiveness of the office. Any decision by Ms. Ogg not to allow the case to go forward will necessarily result in a situation where the victim's family, their supporters and a good percentage of the voting public will be actively vocally campaigning against Ms. Ogg for the next four years. And if Ms. Ogg doesn't think there's a tremendous amount of public sympathy for Belinda Temple's surviving family, she is badly mistaken. On top of that, the fact that the Harris County DA's office (albeit under a former administration) was responsible for the prosecutor misconduct which lead to the reversal of the conviction is another practical (if not mandatory) justification for punting the case to an independent prosecutor with no prior attachment to the case. If memory serves, that's what happened in the Anthony Graves case where the Washington County DA asked Kelly Siegler (ironically) to specially prosecute Graves after his conviction was overturned due to the misconduct of Charles Sebasta. To me, this a big decision for Kim Ogg but not a difficult one. The safest route both politically and to insure future public confidence in the integrity and independence of her office would be to just get out of the case.
The only person who thinks a 100% win in trial exists has never tried a case.
Temple case is Pandora's box for both sides of the issue. I really hope that the office stands on the right side and allows an independant body or special prosecutor to handel the amtter and make the call on how to proceed. It's just the right thing to do. End of story.
Also...
Did anyone witness (or have firsthand information for) the "mandatory DWI dismissal" in CCT#1 on day #1 by the new Misd. Chief?
DA Ogg can call as many press conferences as she wants proclaiming that this is an administration that is going to pursue "evidence-based prosecutions." She can decry the Anderson administration all she wants for its perceived "relationship-based prosecutions." But, make no mistake, Ogg won. It's her ball game now. It's the top of the 1st and the bases are loaded; this is where the rubber meets the road. If she does anything but recuse the office from this matter, then all of her rhetoric about bringing ethics "back" to the office is just a bunch of horse shit. The stage is set, Ms. Ogg, and the choice is clear. Nobody said this job would be easy but doing justice never is.
Wow - I was coming here to respond about a comment I read earlier today about Clappart not interviewing Ellis about that bs warrant and now it's gone. I really thought better about your you, Murray.
And since I'm not too sure this is really 100% anonymous, contact me if you want. I trust you way more than anyone at the Chron.
Is this a joke?!? The people reviewing the case include Denholm an d Clappart?!!!! I'm not sure Andrew can stand alone against those two so I hope Cameron is with him.
I haven't deleted any comments. Are you sure you are on the right thread? I'm not sure which comment you are talking about regarding Clappart. If you saw the comment here before, it should still be here.
You are actually more anonymous than you think. At least to me. I use a thing called Statcounter to keep track of my web traffic but I use the free version that only shows the last 500 visitors or so. Unless you have a domain name that clearly states who you are (most are Comcast or UVerse or something similar) I don't have the tech knowledge to know who it is.
Recusal is the only option for DA Kim Ogg given the blatant and monumental conflict her administration has in the Temple case.
A dismissal would be outrageous and guarantee that Ogg is never re-elected. It would also discredit any claim that she is a DA who promotes justice and wants to do away with corruption.
So, the ultimate issue is who will be the Special Prosecutor. Ogg will have to decide whether or not to refer Temple to the Tx. Atty. Gen. and be above reproach or to cut a deal with a throw down prosecutor as quid pro quo for DeGuerin.
Doing the right thing simply because it is the right thing to do is so difficult for politicians……….we can only hope DA Kim Ogg does the right thing at the end of the day. I think when the smoke blows over she will.
Well if Kim doesn't recuse the office on Temple, I know of one former male prosecutor who already plans to run against her in 2020...when the "Hillary" help will be long gone. And last night, I heard of a very prominent and respected defense attorney, a Democrat, who is already considering running against her.
Give Kim a break.
The Atty. General will be appointed and Temple will be convicted and sent back to prison with another life sentence.
This political charade will not result in allowing a man who blew his pregnant wife's head off to roam the the streets of Harris County.
Besides, can you imagine how many grievances will be filed with the Texas State Bar if Kim jacks this up for political favor.
"I know of one former male prosecutor..."
Harris County has gotten pretty accepting lately, but I doubt we'll be electing any former males any time soon.
I think Ogg may have originally planned to use this case as an example of how the old DAO's operated, but after further thought she realized that 1) it would cast a pall of suspicion on every case prosecuted since Rosenthal and, 2) she realized that she could use this case to spotlight her administrations dedication to justice. The options of Actual Innocence or a dismissal was never seriously contemplated, and we can look for her to either prosecute with a vengeance or recuse the DAO.
The three stooges are idiots and that office is DONE
So what happened on Jan 4th in court? Anyone have the scoop? Punt/reset?
So Kyle Watkins walked out, Colleen Gaido quit, Anne Johnson quit, 3 investigators have quit... how many are going to walk out on this administration? I heard Kim wanted to fire more but is finally starting to realize how much she has screwed up already. That office is done. It will take years to recover the damage she has done in just 1 week.
Let us not pretend that Devon was anything special. Her ascension via the grieving widow card was no substitute for legitimate leadership. If Devon had done her JOB things would be a Hell of a lot different today. Crazy Chuckie, Political Patty, Millisecond Mike and Derelict Devon were not the best choices to lead the HCDAO.
Folks fear change but before we demonize Kim Ogg let's wait to judge her on how she actually seeks justice for the citizens of Harris County.
I agree with anon 4:58 that Ogg appreciates there is no conceivable way she facilitates the release of Temple--whether it be for time served, by dismissal or by appointing an inappropriate special prosecutor. The blow back would crush her credibility beyond repair.
Per the Chronicle, Kim has decided to review the file herself and said the decision will be hers. Looks like when given the opportunity to do the right thing, she chose the wrong door. Raise your hand if you're surprised.
I've been standing by quietly and reading this blog and the hypocritical comments by FORMER assistants but I can't do it no more. Anderson's dismissal of Buzz's DWI wasn't the only political favor she ever did, just the last and most publicized. Who are we kidding, anyone who worked at the DAO under her watched her do similar on a weekly if not daily basis. I know a dozen police detectives who spent months working a case then saw their hard work amount to nothing more than misdemeanors due to the connections of defendants, and even some child rape cases where the defendant was guilty of Super Aggravated and were allowed a plea for probation! How anyone could defend these reprehensible actions is beyond my comprehension. I for one am thrilled that Kim has cleaned house. There were dozens who watched Devon and stood by while she committed these atrocities, and these were the ones who were setting an example for the baby prosecutors to follow. All of you who are whining about getting fired or bemoaning the new administration need to take a long look in the mirror and ask yourselves just exactly who is to blame for the circumstances you currently find yourself in. Why didn't you go to the media when you saw what Devon was doing? Or perhaps you agreed with her? Find a job representing rapists and drunks and stop slamming Kim for trying to do a conscionable job. http://www.chron.com/news/houston-texas/houston/article/No-prison-time-in-sexual-assault-case-6333949.php
Also per the Chronicle, about Ogg's decision to personally review the case file Schneider says, "If she's comfortable with it, I'm comfortable with it." Comfortable because the outcome has already been decided? At least PRETEND there is nothing shady going on! What's next? Ogg tells us all that he's actually innocent and David Temple gets to collect money for being 'wrongfully convicted'??? What a joke
Ok can someone fill me in, I was not here for the case the first time, so what exactly is this "prosecutorial misconduct" everyone that happened or everyone thinks happened?
@11:27, that case was explained to me as a "he said/she said" case that would be virtually impossible to win at trial. Without physical evidence, the allegations stemmed back from several years prior to the arrest, or an independent outside witness to support the allegations, the chances of conviction were low. If it is your opinion that all cases like this be forced to trial, not just because the nature of the alleged crime but who the accused was, we're going to need a great many more courts, judges, and jurors. The plea allows for the guy to get treated, put him in jail, and for him to be monitored for 10(?) years which is better than nothing.
@11:36, in the Temple case, the ADA was accused of withholding evidence so the convicted murderer of his then pregnant wife did not get a fair trial. In previous posts of this blog, it was shown that all the evidence was provided to the defense but some of it so lacking in credibility that it was handed over late in the process. Those most familiar with the case do not agree that it was a case of prosecutorial misconduct so much as sour grapes from the losing side, the killer having been having all sorts of marital problems and a common motive for committing the crime. Nobody to date has credibly argued any of the information plausibly supports the killer's innocence and only the killer. his family, and their well paid advocates believe the case should be dismissed without a retrial.
Kyle Watkins was possibly overworked explain why all arguments regarding my case with him went in one ear and out the other. I know he bought in to his superiors' notions that MMA materials did not need to be turned over as soon as practicable, but rather only if ordered by a judge, which is early false just like Siegler's contention that Brady is not Brady I'd the Stage deems the evidence not credible. He seems like a good guy, but he seems to have bought into his supervisors' unethical trial tactics. I can point to two documents that were Brady and not turned over as soon as practicable. One hidden in a. envelope marked confidential and containing medical reports contradicting the complaining witness, the other an inconsistent statement of her complaining witness characterized as work product in order to keep it from the defense. These are pieces that should have triggered further investigation and questioning of their complaining witness as well as further statements from the CW that should be turned over, but that has not happened in spite of one trial setting having come and gone. If you are going to hang the threat of 20 years on my client you would think a little more seeking of justice would be happening, but apparently not. Has everything been turned over? Who knows? Client passed polygraph and state has refused to even ask CW to submit to one even though they have no forensic evidence tying my client to any injury of the CW whose statements appear to be designed to get compensation for preexisting mediCal conditions. We have not gotten a fair shake from Mr. Watkins, his former boss Mr. Keiter or Ms. Dickson the previous ADA assigned to the case. I don't know why Mr. Watkins walked out, but if he was a seeker of justice he should havery hung around. The new administration seems more attuned to seeking justice as opposed to seeking convictions and has plans to put more resources into the more serious charges. If his shortcomings in handling my case was due to lack of resources and assistance he should have hung in tbere. If he was just seeking convictions without even thoroughly knowing his cases then it is probably good that he walked out on that dubious mission.
anon 9:23 am sounds suspiciously like a certain self-proclaimed "oil & gas executive" that can't write a sentence without giving himself away. lol - dubious mission
Anon 9:23 am: You want a prosecutor to demand that a rape victim take a polygraph to prove she was raped?! There's this little thing called the Texas Code of Criminal Procedure, specifically 15.051 forbids prosecutors or police from requiring a polygraph. In fact even asking is useless because you cannot dismiss the case based off the victim's refusal or results of the test. So it sounds like Kyle actually knew the law and decided not to break it.
Marked "Confidential" does not mean it was hidden from you. Medical Records are confidential. ALL of them should be marked confidential even though they frequently aren't. Did it say work product? No. It sucks but sometimes you have to actually do work and read through a file all on your very own. Your complete lack of knowledge of the law and procedure pretty much tells me all I need to know...except why you felt in necessary to anonymously attempt to publicly tarnish another's reputation.
"I don't know why Mr. Watkins walked out": Exactly, you don't. So end it there. And you don't work in that office so you don't know what it's like to truly want to see justice done and watch Kim Ogg destroy it. I applaud Kyle for his morals, sense of justice, and judgment in actually taking action when something is wrong instead of just "hanging around".
1:45, You are the one who has demonstrated your lack of knowledge regarding procedure. My statement was that the state refused to even ask CW to take a polygraph. The statute allows asking them to do so as long as disclosures are made that she is not required to take one and that the case cannot be dismissed SOLELY because she refuses the request or fails the polygraph. Keiter and Dickson both told me with disdain much like you just did that it was "illegal to ask her to take a polygraph". That is clearly false and you drew conclusions based on the false premise that I wanted them to "demand a rape victim take a polygraph" and misstated the requirements of the statute to boot...dumbass, or maybe you are just one of those prosecutors who likes to twist the facts like Ken Anderson did when with no evidence he told the jury that Morton had masturbated over the dead body of his wife. Well if you could read you would have noticed I requested that they ask her...no demand for anything. So you twisted my words into something that would have violated the statute and called me "lacking in knowledge and procedure" when it was your esteemed colleagues who were lacking in knowledge and procedure and proceeding in ignorant bliss to correct me on the law in error just as you did.
This kind of twisting and misreading by you and your cohorts is why you can't be trusted to seek justice and follow the law. You believe everyone is guilty and you suffer from confirmation bias. You act as though you know the law with haughty confidence when you should be saying, let me check on that because I am not sure what the statute allows. But NOOOOO! The way you think is a danger to the innocent seeking due process from those resistant to delivering it, because you know the person is guilty and you are doing God's work. How about at least at the beginning of a case, look at it with a presumption of innocence instead of a presumption that the CW never lies.
As for the the medical record in the envelope marked confidential, you don't know enough specifics to comment on that either. I was reading the file on my "very own" when Kyle walked up behind me and started attempting to chastise me for reading it because the envelope was marked confidential. At that time having read enough of it to know the report contradicted her late claim of injuries that contradicted the med report as well as her earlier recorded statement, I pointed out to Kyle the date the report was sent explained that it was Brady and asked if he would like to approached the judge with his complaint about me reading it. No. He didn't. Nor would he start to consider he may have an untruthful CW.
I'm late to this thread, but wondered why no one (since you're all lawyers) who believes that D.A. Ogg is conflicted has cited a provision of the Disciplinary Rules of Professional Conduct or an opinion interpreting them. Cursory review of of the Rules indicates one possible conflict: the attorneys and investigators who represented or worked for Temple are conflicted out from working for the State in the Temple case because of their duties to their former client and employer. This might be enough to conflict out the Office if Temple had any interest in doing so. That might be a clue that Temple has no fear that damaging attorney client privileged information will be divulged and used against him; and maybe that is because there isn't any such adverse information. Other than that there appears to be no conflict, no more so than when defense attorney's, with criminal cases proceeding or anticipated to proceed in Harris County courts, donate to the DA's or judges' campaigns. "No more", since there is certainly a conflict, but one built into the system of judges and prosecutors whose elections depends on fundraising, a system with which many here, I trust, are quite comfortable.
Yes, you are late to this thread. I would suggest looking to the more recent post of regarding Not "If" but "When" A lesson in Impropriety, where Tom Moran and I discussed this issue in the comments.
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