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.


Anonymous said...

Interesting indeed. Especially since law of parties paints his wife as an accomplice and it's been decades since an officer in this county was indicted for a murder they committed. And you would be correct in your assumption that the husband was receiving preferential treatment usually reserved only for officers who commit murder. As for the quickness in presenting this to a grand jury, perhaps the current GJ doesn't have the usual requisite of three or four retired officers serving.

Anonymous said...

Since relying on a short cell phone video or especially local media is historically problematic, local media having so much bias and a herd mentality clouding common sense, waiting a little while to rush to judgement seems prudent. Unlike some Hollywood fictional death, most of the facts are not in dispute here, the technical analysis of said facts what typically takes "weeks and weeks" as you point out Murray. But even that being the case, there are a few points of interest going on at the same time.

For one, just how many times in modern history has a Harris County sheriff called on the Texas Rangers and the Justice Department to jump in at the onset of such an investigation. Not a follow up, not to review a well documented case but right from the beginning... Do you know of any because no one I've talked to seems to have any examples that come to mind.

Another thing is that our still new District Attorney has not had any significantly new cases to test her meddle on, even her test balloons with the Temple case finally giving way to the fact that dismissing it would have likely ended her new political career so early on that she punted. Only a blind person would suggest that Ogg is not at least as political as the last several occupants of the office, most concurring she is more driven by politics than most that have ever sat in the seat or tried to, so she's busy getting a dog and pony show ready to play it both ways to two completely separate crowds; the law & order crowd that wants to see this as a family man attacked by an illegal urinating in public just trying to defend himself by putting the guy in a sleeper hold that went wrong or too far, against the usual narrative of white privilege with police ties unlawfully taking the law into his own hands to kill another of a poor, downtrodden minority.

Like Murray, I believe the Grand Jury will indict this week and then the powers that be will have to deal with the case knowing full well that various factions will portray things in wildly creative fashions. People will focus on very narrow aspects to fit their personal narratives as they always do in this sort of thing, some convinced that the deceased, having been drunk and urinating in public view, probably attacked the deputy's husband when they exchanged words, while others will focus on the outcome, how dare he confront someone taking a leak, what right did he have to intervene in the first place? The devil is in the details and they will come out in time no matter who is investigating the case or no matter which ADA takes the case (let's face it, does anyone think Ms. Ogg will prosecute it herself? Not to be too delicate but her legal acumen is modest at best).

And I suspect that if you ask either the Justice Department or Texas Rangers about when they would've taken the matter to a grand jury, it would not be this week, or month even, the need to score political points over "doing the right thing based on evidence" simply not a factor here. Lacking a narrowly drawn timeline, it bodes well for the off duty deputy that she tried to render medical aid, called for assistance and an ambulance but don't make too much hay out of a small protest in a community of 5 or 6 million people, anyone allowing that to influence decisions needs to step down right now.

Lee said...

The problem here again is that damn badge. The swine treat their own better than everyone else and it needs to stop.

Anonymous said...

Her husband has quite the criminal record which I'd think and certainly hope isn't the normal for spouses of our officers.

Anonymous said...

If anyone with institutional knowledge is left at the office, I would hope that they are taking witnesses to grand jury to lock in their testimony now as opposed to later. Presenting witnesses to grand jury does not mean an indictment is forthcoming. Even though the death is a "homicide", I would still want an autopsy report with a tox screen in hand before I asked for an indictment.

Anonymous said...

Has to be a record for fastest indictment of a law enforcement officer in this county. All over a guy taking whiz. Good grief. I remember back in the late 70's two state troopers arrested some fellow for relieving himself on the side of Interstate 10. He took the case to the Texas Supreme Court who ruled that "when you gotta go, you gotta go" and that it was legal as long as you had your back facing the highway and you made an effort to conceal your privates. I guess maybe the deputy's husband doesn't keep up with rulings like that.

Anonymous said...

It's amateur night at the District Attorney's Office.

Anonymous said...

It will be amateur year until 2020! This is what will continue to occur when you put an egotistical politically motivated career defense attorney at the helm of the CJC. It sure appears that decisions will continually be made on what politically suits empress ogg as opposed to ALWAYS doing the right thing. Simply pathetic....

Anonymous said...

Murray, there is a double standard with the Ogglodytes. If Devon or her predecessors had done what Kimbra did in that press conference yesterday, the defense bar would be screaming bloody murder and filing a grievance. Ogg said publicly that the defendants were given the opportunity to testify before the grand jury but did not.

This is a direct violation of the Texas Disciplinary Rules of Professional Conduct Rule 3.07(b)(2)which says that a lawyer shall not make a public statement about a defendant or suspect refusing to make a statement.

Amateur night is right! How many more ethical violations will go unreported.

Anonymous said...

Wait what?! I thought the ethics czar Mendoza was going to stop all this. Hopefully Mendoza will provide assistance to Ogg on her new ethical obligations. Oh wait- rules don't apply to Ogg or her people... ethics, sexual harassment, list goes on.

Anonymous said...

Holy shit this was quick. Would have been a record for anyone but blows my mind that Ogg would present the case to grand jurors before other agencies have finished their on-going investigations. I read some of the statements by witnesses and if they're accurate I'd be negotiating a plea as quickly as possible. One thing I've noticed from comments about this case on social media is no one is sticking up for the deputy or her husband, which is unheard of in this city. People are obviously tiring of these types of officer-involved killings and my money says someone is about to be made an example of. I just came off a big complicated case myself and feel for Scott Courtney, he's got his hands full trying to defend this one.

Anonymous said...

Anonymous 1:03, I've read an awful lot of social media comments defending the deputy and her husband, maybe you limit yourself to very left leaning websites. The investigation isn't over yet and there are plenty of possible defenses available plus, just who at the DA's office is going to successfully try the case, Ogg? But it's easy to mistake a vocal bunch prematurely calling for the head of a deputy and husband before the details are released these days, I'd suggest the majority of the public is sick of hearing the victim/race card played so often, especially when the majority of those who show up for the petit jury pool are going to be the same folks that want all illegals tossed out of the country, don't pander to those who start swinging and then lose the fight, and support deputies much more than the millennials you apparently follow.

Anonymous said...

Courtney has it a lot better than most of us do when representing murder defendants. His client wasn't interrogated for 15 hours and there was no drug or alcohol testing done. That's quite an advantage right there. The biggest drawback is his client isn't a deputy, just related to one. Cagle will get his client an acquittal.

Anonymous said...

What's this talk of acquittal? Kimbra wouldn't rush a case that's still under investigation through the grand jury unless she had a strangulating hold on it.

Anonymous said...

No way either of them is convicted on an actual murder charge. Typical political over reach

Anonymous said...

Scott is a very talented advocate. No offense to the legacy staff at the DA's office but unless there is a great deal more evidence against his client, he's going to mop the floor with them here if they push for murder. He'll present to the jury how his client came across the deceased in a public place, how the deceased was pissing in plain view of his children, and how he told him to take it inside to the restroom. Then he'll outline how the drunk attacked him and he defended himself, eventually getting into a restraining hold to keep from having to beat the guy down or worry about the man pulling out a weapon. The details will include how the guy was fighting him the entire time, lashing out and trying to kick him while being told to stop, then how the audience started pouring out of Denny's. When help finally arrived and the defendant felt safe to release the man to the custody of the on duty deputies, the damage was already done, the guy dying days later.

It will be pointed out that the client had:
1) the right to confront the urinating drunk in the public place
2) the right to defend himself when attacked and,
3) the right to restrain the man until the authorities arrived or the man settled down

This is an off the top of my head scenario based on public accounts without all the details Scott will have to work with. As long as the client or his wife conveys an appropriate amount of emotion regarding the reasonableness of their initial actions and then how it was the deceased that escalated things, you're not going to find a jury willing to convict for murder in this area. Lacking a truly talented ADA team the likes of which haven't been with the office in years, no barely competent 5th Amendment pleaders need apply, he's going to sail through this one with relative ease. Ogg's premature decision to bring this in front of a grand jury before the investigation was finished, for political reasons of course, has likely tainted it enough that when they lose the case, those who applauded her knee jerk reaction will vilify her even more than had she waited.

Anonymous said...

Not so sure I agree with your synopsis there 3:06. The incriminating video and a parade of damning witness testimony will seal the deal for the husband, should the case go to trial. And the deputy had an obligation to break up the fight, her husband being a participant nor the fact that she was off-duty doesn't negate this responsibility. I predict neither will take a chance with a jury and both will opt for pleas. The husband will pull a dime in TDCJ on a IM charge while the deputy will likely get a few years deferred.

Anonymous said...

Anon 3:06,
while I don't find the video nearly as damning as Anon 6:22 seems to, nor do I think the witnesses are as strong, I think the husband will take a relatively sweet plea deal and his wife will either walk scott-free or take the slightest of slaps on the wrist. I don't think there's a chance in hell that even with his priors he'll do much time unless Ogg finds an outsider to help with the case and/or it goes to trial and he completely blows it.

I profess no expertise but the most the husband will be convicted of is involuntary manslaughter if it goes to trial. If so, he'll likely get a sentence half what 6:22 wants and serve a modest amount (Threet v. State). The most appropriate plea to offer from a laymen's view would be criminally negligent homicide on the husband and letting the wife walk, the type of jury pool from this area unlikely to convict of anything stronger.

Murray Newman said...

All those who are posting how this case is going to resolve itself might as well be telling us what the score will be at halftime at the next Super Bowl. There is still so much more to come on this that making predictions about trial outcome is just silly.

Anonymous said...

Murray, some of you insiders have a lot more information to go on regarding cases like this than bookies putting down millions in bets have for sporting events. Unlike the Superbowl analogy, you know which teams are going to play in these trials, their track records, and the statistics when it comes to specific types of cases. With a few phone calls to Vegas, I'm sure we can find numerous bookies willing to lay odds on specific outcomes right now. ;)

Murray Newman said...

Yes, well, one of us "insiders" was just talking about the Defendant pleading to involuntary manslaughter which hasn't been on the books in Texas in years and years.

It is all too early to tell.

Mark M. said...

Uh, Anon 12:43, your citation to Threet is ridiculous. Lawyers frequent this site; reddit is around the corner. In the criminal defense field, Threet is the seminal case regarding corpus delicti in a DWI case. If your citation is to another Threet, you will need to positively identify it, rather than a throw-away cite such as you listed.

Anonymous said...

Prosecuting an officer is perhaps the most difficult of anything we are tasked with doing. We're ostracized by their department, even though we're just doing our job. We're pressured from so many different angles by many who convey that the advancement of our careers are at stake. Then there are the jurors, many of whom will refuse to convict regardless of the case we present in court. And if all this wasn't enough, we must contend with the judges, who will almost always rule in the defendant's favor on every motion. And even after the verdict has been rendered it's not over. No, then we face accusations of one sort or another by either the defense or the victim or the general public. Imagine though, what it would be like if we allowed every officer to do as they pleased without anyone making a diligent effort to contain illegal behavior.

Anonymous said...

I saw a news video of the defendants using the stairwell. Are the stairs now open to everyone?

Maybe I missed it in your post but are the cases being handled by a specialized division or is the mess rolling down hill to a trial court prosecutor.

Anonymous said...

Mark M & Murray, it appears Anonymous June 11, 2017 at 12:43 PM claimed he was no expert or insider. If the Threet case he refers to is the one from Austin some 15 years ago, it has some passing similarities to this case in that two people were fighting, the man who died later was the one who threw the first punch, and he was convicted of the lesser included offense of manslaughter. If your reasoning is that the state could convict for manslaughter so the plea should be CNH, that is a line of thinking I doubt will work this time.

Anonymous said...

The full-blown narcissist empress DA’s career is about to DIE on this hill. Every corn farmer in Texas is looking to supply this theater with food for the many hours of laughs this case will bring in the attempt to show the brain dead people who voted for her she has adequate decision and managerial skills necessary to run the DA office in Harris County.

99% of jurors will laugh their asses off in the jury room at the attempt of this DA trying to hang this guy for restraining an illegal drunk who attacked him.

Oh how I’d love to be on this jury to sway the one or two ignorant COMMUNISTS who might get on it, and bring out their hate for the rule of law and their hate that an actual citizen utilized THE LAW, and their right, to restrain an illegal drunk who attacked said citizen.


Anonymous said...

@ TopGun

"I really hate minorities," would have been a lot more succinct.

Anonymous said...

Still no outrage from the defense bar for Ogg's ethical lapses. Shocking. You have lost all credibility.

Anonymous said...

@ anon-bright-individual June 14, 2017 at 4:58 P.M.

Here again, you Communists show all you have is the race card and your Saul Alinsky "Rules for Radicals" tactics from the book you guys worship as your Bible.

Thank you so much for giving those with a functioning brain a few moments of laughter while you hopelessly attempted to string a coherent thought together.