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.

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.

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.