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.


Anonymous said...

I hope the decision of whether to agree to his innocence claim is based on the evidence (or, as some might say, "evidence based") instead of based on Ogg's efforts to maintain her relationships with various groups (or, as some might say, "relationship based"). If not, perhaps someone could run against her promising to make evidence based decisions rather than relationship based decisions. I bet you could win on that platform.

Anonymous said...

First off, Ms. Ogg was never that popular an ADA, with police or anyone else other than maybe Ted Poe. When she served as the appointed figurehead of Crime Stoppers or in a similar position with the city's gang unit, she was never popular either, certainly not with the police who she treated like third class citizens, some exceptions for those at the top of the food chain. As such, that factor shouldn't even appear as a blip on her radar, even her decisions since hitting the campaign trail or while serving in office have proven damaging, some including the reasonable decision on how to handle low level amounts of pot, others more petty like demanding senior homicide detectives with the HCSO having to display their personal driver's licenses to rent-a-cops to attend meetings, their official ID apparently not good enough.

I suggest any funds tied to the actual innocence claim come out of Ogg's personal budget. Maybe then she will spend as much time as she allegedly reviewed the Temple case because if she did that, she'd note how weak an alibi the cell phone deal was and how the sheer weight and quality of the evidence as it existed when the trial was held was first class. What the hand wringer crowd likes to use as an excuse to free a killer is just common sense, witnesses move away, die, or otherwise become available over time. Evidence is lost, degrades, is used up during analysis, or is subject to all the usual problems. Make the killer prove his innocence in court, let this latest court get to see the shifty little bas@@@d deny his role in the matter once again, and then rule however they see fit but don't just hand him the money given what everyone who worked on the case knows how it went down.

Anonymous said...

The evidence against him was strong. Unfortunately, with time, sometimes you only get one bite at the apple. His alibi, if true and added to the original trial, would not have changed things, even though it should have been presented. If she decides to declare him innocent, she'll have a revolt on her hands from the entirety of law enforcement. Every police union in the county - especially HPOU - will pour money into her opponent's campaign.

Anonymous said...

"I suggest any funds tied to the actual innocence claim come out of Ogg's personal budget."

Ogg has already destroyed her budget paying all her friends. I'm pretty sure commissioners court is done with her.

Anonymous said...

Unlike most of your reader base, I believe Ogg to be more honest than any of her predecessors. Let's face it, no one in law enforcement or even in the judicial system is totally honest. We want to win every case we're given and we need the testimony (testilying?)to win convictions. Everyone of us know this but few will acknowledge this fact even to our peers. There isn't one prosecutor in the entire country who knows without a doubt that he/she has convicted an innocent. But we try to justify it with the tried and true "he's done other bad deeds" so we can continue to look our children in their eyes. I'm unfamiliar with Brown's case, but I've been in the business long enough to know that taking the word of an officer without collaborating evidence is a sure path to convicting another innocent.

Anonymous said...

And to complicate things, she fired every prosecutor involved in re-evaluating that case. All four of them. And I am positive that all of them will tell the truth and not cover for Ogg. Oh, and Ray Hunt was involved in the final meeting and given all of the information.

Anonymous said...

Anon June 15, 2017 at 11:34 AM, I get the impression that you have no ties whatsoever to law enforcement or prosecution given that piece of imagination. Every career prosecutor I know was all too willing to dismiss any case they did not believe in and they did so day in and day out for their entire careers. The police I knew were of similar mind, testifying about cases to the best of their abilities, not always like professional, trained advocates or orators but like regular people on the stand. Have some gone too far over the course of time, knowingly embellishing in order to secure a false conviction, perhaps but those cases were indeed rare enough to generate a great deal of buzz. I know that is contrary to the belief of certain criminal advocates that believe most in prison are there as a result of a crooked system but that is far closer to the Truth than anything you wrote about. Ask Murray how many cases he dismissed over his years as an ADA, you might be surprised...

dudleysharp said...


The "actual innocence" law was amended, below, for just such a case.

Anthony Graves was, properly, denied compensation under the original law, because there was no proof for his actual innocence.

Because of that denial, the legislature created a Graves amendment, which provided that absence of evidence, combined with a prosecutor's supportive belief, that prosecutor could declare actual innocence in that case, with no evidence for actual innocence.

Although this flies in the face of the rational, investigative maxim "Absense of evidence is not evidence of absence", it is the law, as follows:


Paragraph (2) (C) (ii) (the Graves' amendment) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney BELIEVES that the defendant is actually innocent of the crime for which the person was arrested.

Full statute:


(a) A person is entitled to compensation if: (1) the person has served in whole or in part a sentence in prison under the laws of this state; and
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced;
(B) has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced; or
(C) has been granted relief in accordance with a writ of habeas corpus and: (i) the state district court in which the charge against the person was pending has entered an order dismissing the charge; and (ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney believes that the defendant is actually innocent of the crime for which the person was arrested.

Anonymous said...

The problem is that the follow-up investigation done by the DA's Office concluded that Brown was the shooter, but that some of the evidence had become unavailable. And HPOU knows that was the result. They were told in person. Go ahead and depose the prosecutors, investigators from HCDAO or HPD Homicide and you will get that same answer. So if Ogg states that she believes that Brown is innocent it will fly in the face of the evidence and open her up to a whole can of whoop ass from law enforcement.

Anonymous said...

Harris county has a long and sordid history of false convictions and it's finally starting to get the national attention it deserves. Great but short video segment which aired earlier this month:

Anonymous said...

That mean old Ogg. She persecuting police officers now.

Anonymous said...

"It is not enough that appellant knew that his action would impair the availability of the marihuana as evidence. He must have intended to impair its availability. That is, impairing the marihuana's availability as evidence must have been appellant's conscious objective or desire. The court of appeals erred in analyzing the sufficiency of the evidence for the culpable mental state of knowledge when the statute proscribes the higher culpable mental state of intent.
Moreover, the evidence appears to be legally insufficient to show that appellant had the conscious objective or desire to impair the availability of the marihuana as evidence. The missing marihuana bud would not have changed the category of the offense,5 and the remaining marihuana was certainly enough to convict Lavender, if the State was interested in pursuing a prosecution."

Stewart v. State, 240 S.W.3d 872, 874 (Tex. Crim. App. 2007)

Interesting case that I think applies. Essentially arguing that Ofc. Johnson had knowledge of a future investigation is insufficient. It appears that one of the factors that can be considered in determining intent is if his actions changed the level of the offense. He was legally justified to shoot Derek Carr, and moving that tool did not affect that justification or the level of Derek Carr's offense.

Lance said...

"the statute PROSCRIBES the higher culpable mental state of intent..." (emphasis added)

Am I mistaken, or does the word "proscribe" mean forbidden, prohibit, etc.?