Tuesday, December 15, 2020

Episode Six: Return of the Jury -- A One-Act Sci-Fi Play

SCENE:  It is only minutes until midnight on December 31, 2020, and Droids are busily signing off on paperwork on STAR DESTROYER INTAKE under the supervision of CORPORAL LEITNER.  The space hatch doors open and in comes the ADVANCE TEAM led by a beleaguered CO-VICE-ADMIRAL MITCHAM.  LEITNER salutes MITCHAM.

CORPORAL LEITNER:  Vice-Admiral, you're . . . early.

CO-VICE-ADMIRAL MITCHAM:  I decided it would be wise to arrive prior to the Empress to make sure everything was running smoothly.  We cannot afford another embarrassment in front of her.  She's fired so many that we hardly have anyone left.

CORPORAL LEITNER:  Very good, sir.

CO-VICE-ADMIRAL MITCHAM:  What are all of these droids doing?

CORPORAL LEITNER:  They are signing Probable Cause complaints, sir.

CO-VICE-ADMIRAL MITCHAM:  What?!  Didn't the Texas Court of Criminal Appeals just rule that was illegal?

CORPORAL LEITNER:  Yes sir, but we've appealed it to the Louisiana Supreme Court.

CO-VICE-ADMIRAL MITCHAM: What?  Why?  Why would you ask one state to intervene in another state's business?

CORPORAL LEITNER:  Empress Ogg called it "the Ken Paxton Doctrine" and it should work fine.

CO-VICE-ADMIRAL MITCHAM:  I'm going to need the Intake Droids to stop signing those complaints until we have a ruling on that.

CORPORAL LEITNER:  You heard the Co-Vice-Admiral.  Stop signing.  You may go back to watching CNN on your computers.


COMPUTER:  Next, on CNN . . . he was once a respected member of law enforcement before he destroyed his own reputation by selling his integrity to a group of extremists and an authoritarian despot.  Now, he suddenly finds himself out of a job . . . 

CO-VICE-ADMIRAL MITCHAM:  Why is CNN doing a story on Steve Clappart?

COMPUTER:  . . . Coming up, our story on former Attorney General William Barr.



JAR JAR ROGERS:  Mooey mooey, it's the mostest bestest time of the year!  Empress Ogg is being sworn in for another four years!

CORPORAL LEITNER:  You don't get out much, do you, Jar Jar?

CAD DANE:  We need everyone working hard when Empress arrives.  There will be photo opportunities while the Empress is being sworn in.  Then, to show that she's an Empress of the People, she will answer some calls at intake and take some questions from the media.  

JAR JAR ROGERS:  Mooey mooey, I hope they send IG-88 Oberg!  He's mooey mooey tall!


EMPRESS OGG:  Greetings!  Greetings on this glorious day!  I hope you are all as happy to be here as I am!

CO-VICE ADMIRAL KING:  Happy New Year, Jim & New Tom Berg.

VICE-ADMIRAL MITCHAM:  Vivian, what brings you up here on New Year's Eve?

CO-VICE ADMIRAL KING:  I'm second in command now.  I've got to get sworn in.

CO-VICE ADMIRAL MITCHAM:  I believe the office flow chart makes us both second in command.

CO-VICE ADMIRAL KING:  That's the old flow chart, NTB.  I got an upgrade in title.  Now, I'm CO-Vice Admiral And Director King.

JAR JAR:  That's a mooey long title!

CO-VICE ADMIRAL AND DIRECTOR KING:  Yes, it is, Jar Jar.  That is why I will be shortening it to an acronym.  From now on, everyone will refer to me as COVAD King.

CO-VICE ADMIRAL MITCHAM:  Um, you sure you want to go with that acronym?

COVAD KING:  Shut up, New Tom Berg.  Nobody asked you.  You're just a vice principal.


COVAD KING:  You don't know me.  I'm Board Certified in Criminal Law.

CO-VICE ADMIRAL MITCHAM:  And I thought that I had heard you had put in an application to be the new U.S. Attorney for the Southern District.

COVAD KING:  So what?  So did the Empress.

EMPRESS OGG:  No I didn't!

CAD BANE:  Again, Empress, if you would please put your hand behind your back when crossing your fingers . . . 

CO-VICE ADMIRAL MITCHAM:  Well, this seems awkward.

EMPRESS OGG:  Enough!  Today is a celebration.  Let's not have petty infighting.  I have won a hard-fought battle against a strong opponent, but the electorate sent a clear message that they loved them some Kimbra!

CO-VICE ADMIRAL MITCHAM:  Well, to be fair, there was some pretty strong anti-Trump backlash that led to literally all Democratic candidates winning in Harris County elections.

EMPRESS OGG:  Silence!!!!  Not even you with your clinical accuracy will bring me down on this day, David.  Let's get down to business.  Somebody swear me in!

COVAD KING:  I'll do it.  Do you, Empress Kimbra Ogg, first of her name, hereby solemnly swear to uphold the Constitution and Laws of the United States, as well as the Constitution and Laws of the State of Texas, so help you God?

EMPRESS OGG:  You betcha.

CAD DANE:  Empress, could you please put your hand behind your back, I'm afraid your crossed fingers might be in the photos.

EMPRESS OGG:  My bad.  Now, do we have any questions from the media?


CAD DANE:  Um, I think all of the media is probably covering New Year's Eve festivities.

JAR JAR:  Meesa don't think so.  All deesa activities is closed because of da Covid.

CAD DANE:  Would you shut up, you idiot?  Empress, I will write up a summary for a press release for this glorious day!

EMPRESS OGG:  Oh, I would love that, Cad Dane.  I do love your publication that you send me!  It's so wonderful to read members of the press confirming what a great job I'm doing!  Tell me the name of it again!  The Onion?

CO-VICE ADMIRAL MITCHAM (TO DANE):  I thought it was called The Informal.  

CAD DANE:  The Informal has too much bad news about her.  I always send her The Onion.  She thinks it's real.  Keeps her happy.

EMPRESS OGG:  Are there any questions, Cad Dane?

CAD DANE: Um, sure.  Empress Ogg, you've done such an amazing job during your first term as you've been solving Houston's crime problem by indicting Gerald Goines 57 times, all the while working on your own version of the COVID vaccine.  What do you see as your biggest challenge for your second term?

EMPRESS OGG:  What a lovely question!  Well, Cad Dane, obviously the pandemic has had a tremendous effect on the criminal justice system in Harris County, and it has created a backlog of cases.  Backlogs lead to delays, and we ALL know how much defense attorneys love delays.  It gives them more time to tamper with and sometimes murder witnesses against their clients.

CORPORAL LEITNER:  Did she say "murder?"



EMPRESS OGG:  You've reached Empress Ogg's District Attorney's Office Intake, brought to you courtesy of Empress Ogg.  You're on the phone with Empress Ogg.

OFFICER ON PHONE:  Um, yeah.  I pulled over a vehicle for speeding, made contact with the driver.  There was an odor of alcohol so I ---

EMPRESS OGG:  Say no more, officer, I accept the charges.  And you may put "Ogg" as the accepting DA.  That's O-G, as in "that Kimbra is an O.G.," with an extra G at the end, because one just isn't enough.

OFFICER ON PHONE:  Did you want to hear the details of the field sobriety tests, ma'am?

EMPRESS OGG:  No need.  I'm 100% certain that it is an extremely strong case and I give you my word that no one in my office will never ever dismiss it under any circumstances.

EMPRESS OGG (TO CAD DANE):  Anyway, as I continue to work on a vaccine, that I like to call "A Little Shot of Kimbra," I have been in daily phone calls with Pfizer, because they want help with their vaccine as well.  In the meantime, the Death Star is becoming overcrowded with more and more prisoners.  Something needs to be done to alleviate the pressure and overcrowding.  We need to move more cases out, but these delay-loving defense attorneys just don't want to play ball.


OFFICER ON THE PHONE:  Yeah, this is Officer --

EMPRESS OGG:  No time to talk.  I accept charges.  The name is Ogg.  O.G. with another G at the end.  Bye, now.

EMPRESS OGG (TO CAD DANE):  As I was saying, there has to be something to stop the massive build-up of incarcerated prisoners in the Death Star, but the Defense Bar just doesn't want that.  This is all their fault.  I'm currently trying to encourage judges to hold trials where the jury can just take our prosecutors' word for what the witnesses would say if they were there.  This alleviates any concerns about social distancing and can speed up getting cases tried.

CO-VICE ADMIRAL MITCHAM:  Um, Empress Ogg, that would violate the Confrontation Clause.

EMPRESS OGG:  The what, now?

CO-VICE ADMIRAL MITCHAM:  Remember how you swore to uphold the Constitution a few minutes ago?

EMPRESS OGG:  Good God, David.  You act like you've never seen crossed fingers before.


EMPRESS OGG:  I accept charges.  Name's Ogg. O to the double G.  Bye, now.

CORPORAL LEITNER:  He didn't even tell you what he was calling about, Empress.

EMPRESS OGG:  Very funny, Jimbo.  I've seen the charges that have been coming out of intake this year.  Are you really trying to insinuate that YOU are doing much more than that?

CO-VICE ADMIRAL MITCHAM:  She does have a point . . . 

EMPRESS OGG:  So anyway, Cad Dane, I look forward to reading your write up.  I look forward to everyone knowing that I'm the most Progressive, Law & Order, Rehabilitative, Lock 'Em Up, anti-Police, pro-Police, Bond Reforming, Bond Revoking Prosecutor that this county has ever seen!  IG-88 Oberg will be sorry that he missed being here tonight!  These next four years are going to just fly by.


Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Episode Five: The Empress Strikes Out 

Sunday, December 13, 2020

Learning the Difference

When I'm explaining the plea bargain process to my clients, I compare it to someone selling a car.  The prosecutor's position is like that of the car owner, and the strengths and weaknesses of the case are akin to the value of the vehicle.  Maybe the car is flawless and in perfect running condition.  Maybe it is a complete lemon.  The same can be said for a case -- although I've seen many more lemons than flawless cases in my time.

But in both scenarios, it is the car owner/prosecutor who is completely in charge of setting the negotiating price.  If the car/case is flawless and powerful, the buyer/defendant can expect high prices with less flexibility.  If, however, the car or the case is not particularly powerful and has engine problems, one might expect that price to be drastically reduced, or for the car to be totally tossed on the scrap pile.

Whether the case is flawless or an utter disaster, one thing remains the same:  the prosecutor has the sole discretion to set the asking price, and the defense attorney and his or her client is powerless to force them to lower or change it.  We can either accept the deal or walk away from the bargaining table and set it for trial.  

It's just that simple.  It always has been and it always will be.

Much like the auto industry, there are good times and there are bad times.  Hurricanes that destroy fragile and poorly built courthouses may inspire a fire sale on cases to help move inventory, for instance.  Non-violent offenders charged with low-level crimes may find themselves receiving plea bargain offers that are significantly more generous than they might receive under normal conditions.  In some cases, a prosecutor may decide that a contested issue on a motion is probably going to go the defendant's way and just agree to it, rather than go to a full hearing.  

It's just the practical thing to do and prosecutors generally understand that, as do defense attorneys, their clients, and judges.  Otherwise, a total backlog would be expected, wouldn't it?  

As this year has proven, unfortunately, a measly hurricane is nothing compared to a global pandemic when it comes to wreaking havoc on the criminal justice system.   In the twenty-one years since I've been practicing criminal law in Harris County, I've seen Tropical Storm Allison and Hurricanes Ike and Harvey deliver devastating blows to the system, including closing the CJC down for months and months.  Each time, the System found some way to adapt and get back up and running in some form or fashion within a month or two.

The effect of the pandemic on the criminal justice system across the country has made hurricanes and other natural disasters seem like a light sprinkle.  With only a handful of exceptions, all jury trials have ceased since March.  

Take a moment to fully appreciate that.  

In Harris County, Texas, jury trials have come to an (almost) complete stop for nine months and counting in 22 Felony District Courts and 16 County Courts at Law.  Hundreds of cases set for trial have been pushed back to a date that has yet to realistically be determined.  In the meantime, all the cases that would have been set for trial since March have been pushed back with faraway trial settings, all lined up behind those cases that were supposed to have been tried this year.  And while those cases were getting set for trial, new cases have come in every single hour of every single day since then.

The full extent of the backlog is almost impossible to comprehend because no one really has any idea of when things are going to return to any semblance of normal.  Sure, you may have a trial court here and there availing itself of the ill-conceived NRG Arena Jury Plan, but those trials have been few and far between, making no dent in the pile-up of cases that Harris County is now experiencing.

The System is collapsing under its own weight.

At the risk of sounding like I'm blowing smoke up the Judiciary's robes, the judges of Harris County, for the most part, have done all they can to keep things moving.  Although they are routinely blasted for the low (or PR) bonds that they've handed out during this crisis, the judges I've been in front of have worked hard to balance public safety with the Constitutional rights provided to Defendants.  They have made judgment calls on those to release on bond and those who need to stay where they are.  Some of those calls have been wrong and have drawn the criticism of many.  That's unavoidable, and in most instances, the criticisms are unfair.  Too many cases are coming in and not enough are being disposed of.  There simply isn't enough room to keep all the people locked up that the critics would like to see locked up.

But one of the byproducts of so many defendants being out on bond is that they have almost no incentive to enter into a plea bargain -- especially if that plea bargain offer involves further incarceration.  

It's a hell of a conundrum if you're a prosecutor.  A prosecutor may be evaluating a case where a defendant has a lengthy criminal history that includes a trip or two (or more) to the Texas Department of Criminal Justice-Institutional Division.  They may have a difficult time bringing themselves to make a plea bargain that doesn't involve another trip to TDCJ.  

Under normal circumstances, that would be fairly easy to resolve.  Hypothetically, let's say that a defendant is facing a punishment range of 25 years to Life on a case because of his or her prior criminal history.  They are sitting in the Harris County Jail, not bonding out and the prosecutor offers them five or ten years. 

Assuming the case-in-chief is strong against the Defendant, that would actually be a bargain.

However, if you are out on bond, enjoying your freedom, the idea of checking back into TDCJ for a 5 or 10 spot probably doesn't sound like much fun, does it?  As a matter of fact, if you are a defendant who is out on bond, there really isn't much incentive to take that offer at all, is there?  Especially if the alternative is setting the case for trial on a date that is to be determined so far down the road that your trial prosecutor might currently still be in law school.

In short, if a defendant is out on bond for his or her case, it's his or her market when it comes to deciding whether or not a plea offer from a prosecutor is worth taking.

Under those circumstances, one might think that the prosecutors would come to the realization that it is time to entirely rethink the plea bargaining process.  Given the breadth and scope of COVID and the current backlog of jury trials, that should be motivating prosecutors to offer deals that make Hurricane Plea Bargains seem Draconian.  

Let's pause real quickly here before my friend Joe Gamaldi's head explodes at what I'm saying.

As I've mentioned several times on this blog, I consider the most profound moment of my legal career to have come during a PSI hearing in front of Judge Caprice Cosper.  It was a tragic case I was trying against my friend Sam Cammack where a couple had left their children unattended for an hour because their work shifts overlapped.  A fire broke out and an infant died.  The pictures were horrifying.  I wanted pen time.  Sam, very eloquently, argued for probation.

As Judge Cosper gave probation, she sternly told me, "Mr. Newman, in this business there are those whom we are scared of and those that we are mad at.  It would behoove you to learn the difference."

I bring that story up now, because it couldn't be a more relevant guide than in this moment.

Under pandemic conditions, prosecutors have got to realize that it is time to focus resources on those offenders that we are actually scared of, and set aside our moral indignation towards scofflaws for the time being.  

Sadly, that hasn't been the case in Harris County.

As newly re-elected District Attorney, Kim Ogg is still experiencing her identity crisis between the world's most progressive prosecutor or the tough-on-crime prosecutor.  The result has been prosecutors fearful of offering a controversial plea bargain that might make Kim Ogg look bad and subsequently incur her wrath.  Keep in mind, all personnel must have their contracts renewed going into Ogg's second term and nobody wants to lose their jobs.  Many prosecutors are making their recommendations as if Wayne Dolcefino was sitting in the audience.

Historically, I've tried to refrain from using this blog to put prosecutors on blast for something that I disagreed with on a case, but damn it gets tempting with some of the absolutely ridiculous offers that have come out of the D.A.'s Office lately.  I've literally set cases for trial based on whether or not a person should be on one probation or two (at the same time).  I've gotten in yelling matches over .1 gram of Ecstacy.  I've had to go to full-blown hearings on issues that should have been agreed upon as clearly settled matters of law.  I've dealt with cases that should have been dismissed on their first setting, only to be told that I can submit a letter to get it No Billed by the Grand Jury.  

I'm not alone in this thought process.  My friend and fellow defense attorney Brian Roberts detailed his frustrations with HCDA prosecutors in this excellent blog post in September.  Our brethren and sistren in the Defense Bar all feel the same way.  And, spoiler alert, so do a lot of the judiciary.

Too many prosecutors are holding onto cases like a group of compulsive hoarders.

Obviously, this doesn't apply to all of the prosecutors.  There are several that are still reasonable and knowledgable and don't consider themselves to be the Ultimate Arbiters of Justice.  They will recognize the cases that need to be dismissed and the cases that should be reduced or offered small punishments.  They are willing to face any internal consequences that they might have to suffer because they aren't afraid to do the right thing.

They are appreciated far more than they will ever know.

I have no doubt that I will get pushback on this post from those who will characterize me as just a liberal-ass defense attorney trying to let all those scumbag clients out.  But it's time to be practical about what is happening.  If the court system is clogged with non-violent offenses, it's going to be blocking the path of all the cases behind them.  The non-violent cases can't just be put on the backburner in perpetuity. 

Victim crimes will stack up behind them.  Victims and their families will have to wait for their days in court far longer than they ever have in the past.  And to what end?  So that somebody with a couple of Ecstacy pills learns the hard way that we should Just Say No to drugs?  

Across every walk of life, our planet has had to drastically adapt to conditions under COVID.  It defies all expectations to think that the Criminal Justice System wouldn't be called to do the same.  

It can be done without losing sight of the Principles of Justice.

It can be done by distinguishing between those we are mad at and those we are scared of.

I learned that lesson from a very wise Judge, and it has made all the difference.

Friday, October 16, 2020

The Idealism of the Legal Twitterverse

 Oh, dear Lord.  I've hauled off and pissed off the Twitterverse.

Not in the normal way, like when I'm fully intending on pissing off people.  I did this one on accident.

Yesterday was a frustrating day in general.  We had a family emergency that required my wife to go out of town unexpectedly and I was trying to do Zoom hearings while keeping my 6-year-old and my 14-year-old on task with their online classes.  At one point, while Zooming into a court and setting a case for trial, the judge mentioned that I seemed relaxed and comfortable.  It was then that I looked down and realized I hadn't changed into a collared shirt for my Zoom hearings (as I normally do).

Instead, I was wearing a Drive-By Truckers concert t-shirt that read "Hell No, I Ain't Happy." I changed and went outside for my next Zoom setting because I didn't want to disturb the kids' classes.  While sitting on my front porch, a lizard ran up my leg.  It was just one of those days where there was a lot going on and nothing seemed to be going right.

In the middle of all the chaos, a former client that I had represented earlier in the year called my answering service and left a message that he needed me to find his probation officer's phone number because he'd lost his phone (and thus, the number).  A little bit later, he called again wanting to know why I hadn't called with the number yet.

Feeling frustrated, I took to Twitter with the following observations:

Now, this didn't exactly seem to be all that damning of a message, in my opinion.  

The Twitterverse disagreed.  I mean they REALLY disagreed.

I got bombarded by attorneys from around the country who were just incensed -- incensed, I tell you -- that I would make mention of the fact that I found a former client's inability to find a phone number without his lawyer to be a "more frustrating element of the job."  The crowd, which as near as I can tell is comprised largely of public defenders from around the country, have gleaned from this Twitter posting that 1) I hate all of my clients and 2) that I should quit my job posthaste.  The true "most frustrating" thing should be nothing less than an ongoing war against the oppressive, lying, cheating, 4th Amendment-eroding prosecutors, who are constantly seeking to imprison the masses.

I replied to a couple of these young and idealistic folks at first but eventually realized this was a futile effort.  So, I decided that I would respond with this post as a group response to those attorneys who are so helpfully trying to help me reevaluate my career path.

So, let me be clear with this message to my newest Twitter fans:

Grow. The. Hell. Up.

The job of a criminal defense attorney is frustrating on a daily basis at times, and if you haven't experienced that then you aren't doing it right.  

It doesn't matter if you're representing Charles Manson or a Santa Claus.  Clients are human and humans tend to frustrate each other from time to time without meaning to.  

I mean, hell, look at how much I seem to be frustrating Twitter.

I can honestly say that on the whole, the vast majority of the people I've represented over the years have been great to work with. I've represented some really nice people who were charged with some really horrible things.  I've also represented some really difficult people charged with really minor things.  Pretending that every last client I've ever represented has been nothing less than an utter delight is as silly as it is disingenuous.  

If you believe that every client you have ever represented has been nothing less than an angelic, non-frustrating victim of an unjust system, then you are either: 1) very lucky;  2) very naive; or 3) very new to this job.  If your unbridled optimism about your job is because of option 2 or 3 on that list, you are going to get run over by a prosecutor, a judge, or a jury who doesn't share your opinion.

To my new fanbase on Twitter, the trick to being a defense attorney isn't never being annoyed with your clients -- it's working your ass off for them no matter how annoyed you find yourself.  

Because believe me, in this job you're going to be annoyed.  

You're going to be annoyed by that client who has ignored and failed to return every one of your phone calls for a month but calls you at 4 a.m. to ask if he's got court that morning.

You're going to be annoyed by that client who has a completely winnable case right up until the moment he just doesn't show up for court and draws a completely unwinnable bond jumping case.

You're going to be annoyed by that client who files a grievance against you because you didn't get him a probation offer on his third aggravated robbery.

You are going to be annoyed by that client who tells you that you never once told him that he couldn't smoke meth while on bond.

You are going to be annoyed by the client who accuses you of "not working for me" or "working for the prosecutor" every time you tell them something they don't want to hear.

Every time some completely unnecessary obstacle to success comes up, you are going to be annoyed.

And guess what.

That's okay.

Because sometimes you can use those moments of annoyance to actually tell them that you're frustrated with them.  You can even build from that frustration and tell them that they need to learn to be responsible for some things that their lawyer wasn't meant to handle -- like say, being a telephone directory.  Tell them that you expect more out of them because the prosecutor, the probation officer, the judge, the jury, their family, their boss, their teachers, or the world is going to expect more of them.

It has been my experience that when I've done that, most have risen to the occasion.  Despite the angry protestations of the Twitterverse, lawyers cannot actually do clients' probation for them.

So, just for some background (not that I owe it to the Twitterverse), that client that I was annoyed with yesterday was a former client.  He's an older guy that I busted my ass to get out on a PR bond because he was at higher risk for COVID in the jail.  I also busted my ass getting him a deferred adjudication despite his priors, and a misdemeanor deferred at that.  We dealt with a lot of bond issues together before that happened and I told him that he was both grumpy and needy, and he laughed.  Despite being frustrated yesterday, I still called him back and told him to call the court to get the information he needed, because I didn't know it and I wouldn't be able to get to it that day.  He thanked me and we moved on.

Despite the Twitterverse's assumptions, I actually like him quite a bit.  He's got some piss and vinegar in him that is oddly endearing.

But yesterday, he was frustrating me.  Shit happens.

When I first meet a client, one of the first things that I tell him or her is that I will never sugarcoat anything.  I'll sometimes give them a choice of whether they want me to tell them what they want to hear or tell them what they really need to know.  I have yet to have the client who picked the former over the latter.  The same, apparently, cannot be said for Twitter.

In an odd moment of karmic coincidence, I got a message this morning on Facebook from a different former client.  He was a guy I represented a couple of years ago on a couple of different things and at the time, he did more than his fair share of frustrating me too.  We went round and round on some of his responsibilities and expectations.  But I worked my ass off on his case like I do on all my clients' cases, whether they are frustrating or not, and ultimately, it worked out pretty well for him.

His message this morning told me that he'd gotten his shit together, stayed out of trouble and that on Monday, he was getting to see his kid again for the first time in two years.

Sometimes, that frustration you feel and share actually leads to somebody living up to the expectations that they should be living up to.  There is nothing more uplifting than watching a client pull out of a tailspin.

Moments like that happen more often than you would think.

When they do, you are reminded that the most frustrating job in the world is, more often than not, the best one.

Tuesday, October 13, 2020

Lies and the Lying Liars Who Tell Them*

*All apologies to former Senator and Saturday Night Live alum Al Franken, who wrote a great book with this title.  It just fit so perfectly for the topic of this article that I couldn't resist copying it.  I love Al Franken so if this ever gets back to him, I hope he isn't mad.

So, remember back in June when I wrote this post?

The short-ish version of what it covered was this:

A year or so ago, Kim Ogg used taxpayer money to hire Mark Goldberg as an Assistant District Attorney, a politically connected former City Councilman who Ogg had gone to law school with.  He spent a very brief stint in Misdemeanor before being "promoted" to upper management at the office as a "community outreach committee member."  What this actually means is that Ogg hired somebody with taxpayer funds to prosecute, but then reassigned him to plan events designed to get her reelected.  Not that it will matter to voters, but some of us find that to be really illegal.

As part of his job as a fake prosecutor Community Outreach Committee Member, Goldberg quickly became the Sycophant in Chief and planned great events for his candidate District Attorney.  In late June, an e-mail went out from Ogg to all of her prosecutors telling them that they were looking for "volunteers" to help her royal Oggness out at a political event that was thinly disguised as a "voter registration event." The e-mail stated that Ogg would be speaking and all attendees would be the recipients of a "food giveaway."  The e-mail strongly suggested that those prosecutors who failed to "volunteer" would have it negatively reflected in their evaluations.  Not that it will matter to voters, but some of us find that to be really illegal, too.

A copy of that e-mail ended up in my hands and I tweeted it, noting my thoughts on it.  It got retweeted and eventually picked up some media attention.  Since a public servant demanding that the public servants she supervises perform political tasks for her benefit is illegal and the media was paying attention, Ogg was caught in a bit of an awkward situation.  What is an unscrupulous politician to do?

Well, of course, she had to feed the Sycophant in Chief to the wolves.  

Shortly after the media caught wind of Ogg's illegal orders, dutiful Mark Goldberg sent out an e-mail claiming that the Ogg e-mail had been a mistake-riddled "draft" of an e-mail he, himself,  had written and somehow inadvertently sent from Ogg's e-mail.  Still trying to figure out who they thought would actually buy that bullshit story version of events.  Seriously, I have represented some really dimwitted folks who have come up with FAR better stories than that one to explain themselves when caught redhanded. 

Anyhoo, the Office doubled down on just how mistake-filled the Oggberg e-mail had been when office flak Dane Schiller apparently told Houston Chronicle reporter Samantha Ketterer that Ogg wasn't even scheduled to speak at the event as originally stated.  

So as usual, Kim Ogg and her upper Administration pulled some really dirty stuff, denied they did it, and then waited for the attention to pass -- which it promptly did.

It did, that is, until local defense attorney and former prosecutor Nathan Hennigan decided to hit the District Attorney's Office with a request for Public Information for the e-mails surrounding the event.  Ogg spent the past four months fighting the release of those records to Nathan.  Ultimately, he received some really interesting documents and he was kind enough to share them with me and some other folks.  They are wildly entertaining to read in relation to the Ogg e-mail, the Goldberg retraction, and the apparent message from D.A. Spokesman Schiller.

Let's take a look!

1.  Starting with Goldberg's e-mail that the e-mail was just a draft that was unapproved by Ogg.

2.  Continuing on, with Goldberg's statement that it wasn't supposed to be sent under Ogg's name.

3.  And as to whether or not Ogg was going to speak or not?  The D.A.'s Office said this back then . . . 

But the records indicate . . . 

Why do you even lie about something like that?  It makes no sense.  I guess when lying becomes so second nature to you, you stop paying attention to whether or not you are even benefitting from it any longer.

The sad fact of the matter is that literally not one thing here will matter to voters who will almost certainly re-elect Kim Ogg on November 3rd.  It's not because she's good at her job.  It's just because Harris County is firmly a Democratic county for the time being and the lightning rod that is Donald Trump is not going to help matters much for Republican candidates.

Kim Ogg is terrible at her job, actually.  And she lacks the character to hold the Office.  Mark Goldberg's lying e-mails to the entire office don't speak too highly of his character, either.  And lying to the media about such seemingly inconsequential matters as to whether or not somebody is going to speak to a crowd for five minutes?   What's the point?

For an organization tasked with fighting for truth and justice, the Harris County District Attorney's Office sure doesn't seem to know much about truth.

Friday, October 9, 2020

The 2020 Election -- Early Voting Begins

 With everything going on in the world lately, I have to admit that early voting kind of snuck up on me this year.  I remember hearing something about Governor Greg Abbott adding a week of early voting a few months ago, but then I saw that some of the Right Wing "power brokers" had tried to sue him to stop that from happening.  Apparently, the plan didn't change, and citizens of Texas can begin voting Early Voting on Tuesday, October 13th.   It ends on Friday, October 30th and Election Day is Tuesday, November 3rd.

Regardless of whether you are a Right-leaning voter or a Left-leaning voter, you should anticipate turn out to be tremendous this year.  You should definitely be making plans to vote early and give yourself some padding if your original scheduled plan to vote falls through.  My guess would be that given the new numbers of registered voters (over 200,000 new voters since the 2016 election, I believe), that even traditionally "slow" days during Early Voting could potentially bring long lines and wait times at the polls.

So, now that I've lectured you on your Civic Duty, here are my thoughts on the Election itself.  

This is going to be the first election in Texas that doesn't allow for straight-ticket voting, and in a Presidential Election year, the ballot is long.  As in 2016 and 2018, I expect that Texas will remain a Red State (although not as Red as in years past) and Harris County will be a Deeper Blue than ever.  Although there are some great candidates on both sides of the political spectrum in Harris County, I don't think that the Republicans will have much of a chance of taking back benches or positions even with the long-overdue demise of straight-ticket ballots.

So, here are my thoughts on the candidates involved in our Harris County Criminal Justice World if you would like to actually take the time to consider your independent voting choices.

Harris County District Attorney -- Kim Ogg (D)(I) vs. Mary Nun Huffman (R)

You may have heard me mention the name "Kim Ogg" here on this blog once or twice, and obviously, this is THE race that everyone in our world looks at most closely.  As most of you know, I voted for Kim in 2016.  I agreed with her platforms and her views on how the Criminal Justice System should be evolving and how it should be run.  I still agree with many, if not most, of those views, but Ogg's methods of running her office and putting her platform into place have been nothing short of disastrous.  In all honesty, looking back on the first four years of Ogg's governing, I feel the same level of frustration that Obi-Wan Kenobi had towards Anakin Skywalker when he told him "It was said that you would destroy the Sith, not join them!"

Star Wars analogies aside, Ogg's promises of "progressive" and "evidence-based" prosecution have been nothing short of farcical as she has spent the entirety of her time fighting for headlines rather than fighting for justice.  After wiping out a significant percentage of experienced prosecutors as her first move in office, she's waged war with HPD, judges, her own administration, and her prosecutors all in the name of her own pride.  To be honest, it has been shocking.  

She has sought politically motivated indictments on cases like Arkema when she knew that the criminal laws would never support a conviction.  She's fired or punished respected and experienced prosecutors who have disagreed with her over unstable policies (including her own 1st Assistant).  She's hired political donors to positions they were unqualified to hold and then refused to fire them when they predictably failed at their jobs or broke the law.  She's putting the landmark Michael Morton Act (which required prosecutors to share discovery evidence with defense attorneys) at risk, as she has instituted a policy of withholding evidence if the Defendant just so happens to be a police officer. 

She's been an absolute disaster.

Her opponent, Mary Nan Huffman, is a former prosecutor from Montgomery County and is currently an attorney for the Houston Police Officers' Union.  Her platform is definitely far more conservative than Ogg's.  Those things that have so grossly marred Ogg's first term are things that Huffman has been very clear that she intends to correct.  She has the strong support of the police unions and all Republican groups who are politically active.  

As a defense attorney, I have to say that I'm not in favor of some of Huffman's ideas for how the Office should be run.  That being said, the job of the elected District Attorney isn't to make the Defense Bar happy.  To paraphrase Cormac McCarthy, prosecutors have their side of the street to work, and the Defense Bar has theirs.   Additionally, if Huffman were to cultivate a D.A.'s Office filled with experienced prosecutors who actually knew what they were doing and weren't afraid to do the right thing (as opposed to being terrified of the ego-maniacal fame hound at the top), I think a Huffman office would work out just fine.

And at the end of the day, Huffman isn't a crook.  I'm not sure that I can say the same about Ogg.

My vote:  Mary Nan Huffman

Moving onto the Judicial elections, it is unsurprising to see that there are not many contested races on the ballot after the lopsided Democratic victories of 2016 and 2018.  Very few aspiring Republicans judges wanted to waste the money on a campaign that will very like prove to be futile.

339th District Court -- Jesse McClure (R) vs. Te'iva Bell (D)

Without fail, every election that I've written about since 2008 has had at least one race that gives me ulcers to write about for personal reasons.  This year, the race for the 339th has been that race.  

Judge Jesse McClure was appointed by Governor Greg Abbott to replace Judge Maria T. Jackson when she stepped down to run for higher office.  I've known Judge McClure since his time as a prosecutor, and quite frankly, I think he's great.  He's done a tremendous job during his short time on the bench.  His court is friendly and pleasant to appear in.  He gives thoughtful consideration to all of the legal issues before him.  He's demonstrated time and again that his default position is one of compassion and kindness.  His rulings are fair and well-reasoned.  Being a judge is clearly his calling, and he has excelled at it.

Te'iva Bell is a former prosecutor who has been with the Public Defenders' Office since its inception.  She is my friend and a very dear person.  I've known Te'iva since she was a shy baby prosecutor, and I've watched her over the years as she has grown into the position of a confident, knowledgable leader in the Defense Bar.  I have all the confidence in the world that if she is elected that will be an excellent judge, as well.

What I write here will have no bearing on the election in the long run, so I will just say that I think Harris County will be well served by whichever candidate ultimately succeeds.  It is a shame that they cannot both serve.  Hopefully, someday they can.

351st District Court -- Natalia "Nata" Cornelio (D) vs. Arlene Hecht (R)

Earlier this year, after I had made my recommendations in the primary races, I received a phone call from Natalia "Nata" Cornelio.  I had stated my intention of voting for Judge George Powell in the Democratic Primary for the 351st, and she wanted to talk about it.  She wasn't upset with anything I had written about her (or Judge Powell), but she wanted to make sure that I understood her views on the Criminal Justice System and why she was running for the Bench.  It ended up being a pretty long phone call and one that I enjoyed very much.  We've had a subsequent conversation now that she is the official Democratic candidate, and I enjoyed that talk, too.

As I noted in my primary write-up, although Nata is not as familiar of a face around the Harris County CJC, she definitely has strong credentials in criminal defense -- her practice has just centered more around the Federal System.  Those who know her personally are big fans of hers, and after my conversations with her, so am I.  She is very passionate about the Criminal Justice System in Harris County, and is very eager to tackle the issues we are all facing under the pandemic.  We talked for a long time about effective and creative ideas about getting the wheels of Justice moving again.  Not only was I very impressed by her enthusiasm for the tasks ahead, but I was also appreciative of her open-mindedness in seeking input from multiple sources.

In my last conversation with Nata, she mentioned that she had an opponent in November, which was surprising news to me.  I thought the 351st Bench was uncontested after the primary.  Sure enough, I learned that Arlene Hecht was running for office.  Although the last name sounded familiar in the political world, I had never heard of Arlene Hecht.  So, I did some internet sleuthing and didn't really find out all that much more about her.

Her own website says she graduated from law school in 1991, but then states she's been practicing law for 11 years.  I'm not a mathematician, but it seems that there may be some gap years in there somewhere.  She also lists herself as a defense attorney and prosecutor.  I've been practicing in Harris County in some capacity since 1999, and I have never seen her nor heard of her prior to this time.   Being the social butterfly that I am (although I'm not as much as I used to be), I tend to at least know of most people who come through the courthouse, so I find my unfamiliarity with Ms. Hecht to be somewhat unusual.

She is apparently currently an employee of Kim Ogg's District Attorney's Office, but given Ogg's penchant for handing out positions to friends and supporters, that isn't saying much.  She is apparently a fairly recent addition to the Office and is assigned to the intake division, where she doesn't handle cases beyond their initial filings.  There seems to be a very vast difference when you look at the qualifications between the two candidates that should make this decision a no-brainer.

My vote:  Natalia "Nata" Cornelio

County Court at Law # 12 (Unexpired Term) -- Genesis Draper (D) vs. Linda Garcia (R)

When Judge Genesis Draper was appointed by the Commissioners' Court to fill the vacancy of Court # 12, I had never met her.  I knew her husband, Brandon Leonard, who is a friend and all-around fantastic human being, but I'd never met his wife.  When she took the Bench, I learned more about her credentials and experience in the Criminal Justice System, and I remain confused as to how I never met her before.

Earlier this year, I had a case that went to trial in her court and I had the opportunity to see Judge Draper in action.  To say that I became a fan of hers would be an understatement.

Judge Draper navigated a case where the State's prosecutor and I had a very big difference of opinion on the rules of evidence, discovery, and the law.  She held the State to their duties and obligations and she held me to the same standards.  But what struck me as we tried this case was that there was absolutely no uncertainty in how Judge Draper handled her courtroom or her rulings.  She knew the law and she knew it off the top of her head.  That's not always the case in all courtrooms.  She ruled against me at times and she ruled for me on others.  Whether her rulings benefited my case or not, they were all sound.  

Without rehashing the details of the case, which was dismissed shortly after a jury was seated, she made very clear to the State that she expected more from them than what they were putting forth in cases set for trial.  She emphasized to them the need to better evaluate their cases prior to setting them for trial.  She also expertly addressed the issue of a Batson challenge being made against the State.  Without embarrassing anyone involved, she emphasized the importance of a very key component of our Criminal Justice System that is often overlooked.  I can't do her words justice as I try to remember them off the top of my head, but I recall thinking that they belonged in a legal opinion or a textbook on criminal procedure.  

My experience trying a case in front of Judge Draper left me of the opinion that I hope to see her going on to higher and higher benches in the years to come.

Judge Draper's opponent in this is Linda Garcia, who is also someone that I highly respect and consider a friend.  She had a previous tenure on the bench in County Court at Law # 16, which she lost in the Democratic sweep of 2016.  She is a very experienced lawyer who enjoys an outstanding reputation among her peers.  She was respected in her roles as Assistant District Attorney and on the Board of Pardons and Parole, as well.  I honestly don't know of anyone who has anything negative to say about Linda.  I certainly don't.  She's a great person and a great lawyer.

But, in my opinion, Judge Draper is a rock star at her job and is probably destined for an even bigger stage.

My vote:  Genesis Draper

County Court at Law # 16 -- Darrell Jordan (D)(I) vs. Bill Harmon (R)

Those of you who have followed this blog for a decent amount of time are probably aware by now that Judge Darrell Jordan and I are not exactly the best of friends.  I've written about those reasons in the past and he has let me know that he did not appreciate that.  I understand that.  I'm not going to go back over those reasons.  

I did want to bring up those personal issues because I want to give Judge Jordan credit for never once having let them affect how he has treated me or my clients who have appeared before him in his court.   I sincerely appreciate that, because I'm sure that is not always an easy thing to do. 

I would also be remiss if I didn't point out some of the things that I've seen Judge Jordan do that I think are both progressive and helpful from the Bench.  If I'm not mistaken, he was the first judge from the county courts to support the bail reform lawsuit that ultimately led to much-needed changes in stopping people from pleading out on cases simply to get released from custody.  It was a controversial decision but a good one.  He was also one of the first judges to come up with the radical idea of not making Defendants show up for unnecessary court appearances unless there was a substantive matter that needed to be addressed on a case.

These decisions haven't always gone without controversy, but Judge Jordan has not shied away from them.  In his court, the State does not have a "home-field advantage," and as a Judge who took the Bench prior to the 2016 Democratic Sweep, he was often alone in making some of those tough decisions.

There probably could not be a starker contrast to Judge Jordan than former County Court at Law and District Court Judge Bill Harmon.  In his days on the bench, Judge Harmon never failed to be a wildly entertaining storyteller and generally fun person to hang around.  However, he was one of the most pro-State judges to take the bench.  He relished his awards from Mothers Against Drunk Driving and put them on display even when asked to take them down by defense attorneys during a trial.

The Criminal Justice System has evolved in the 21 years since I've been apart of it.  The days of the State being treated preferentially treated over the Defense have given way to a stronger emphasis on the presumption of innocence.  Judge Harmon is a throwback to how things used to be while Judge Jordan is an example of how things have evolved as they should.

My vote:  Darrell Jordan

Harris County Sheriff -- Ed Gonzalez (D)(I) vs. Joe Danna (R)

Although the actions of the Harris County Sheriff don't really directly affect the Criminal Justice Center, I would be remiss if I didn't take a moment to point out the pretty damn phenomenal job that Sheriff Ed Gonzalez has done during his first term as Sheriff.  

The past four years have been filled with more turbulence than I can think of since I've lived in Houston,  Sheriff Gonzalez started out his term having to deal with Hurricane Harvey and he's been dealing with the COVID crisis all year.  In addition to his normal day to day operations, he's been handed one major problem to deal with after another.  He's done so while avoiding any major scandals or drop in morale in his department.  That's no small accomplishment in an office his size and Sheriff Gonzalez deserves to be commended for it.

I don't know Joe Danna and have nothing negative to say about him, but Sheriff Gonzalez has been a rock star in his own right.  He has navigated the Harris County Sheriff's Office through some very choppy waters with purpose and grace.  I wish him another four years and many more at a job that he is so clearly good at.

My vote:  Ed Gonzalez

So, those are my recommendations for the races directly related to the Harris County Criminal Justice System.  As always, there are some other races that have ties to what we do at 1201 Franklin.  

HCDA-alumni and attorney Akilah Bacy (D) would be a great choice for Texas House District 138.

HCDA-alumni and defense attorney Ann Johnson (D) would be a great choice for State Rep for District 134.

HCDA-alumni David Newell (R) has been doing a great job on the Court of Criminal Appeals and deserves your vote.

My friend Veronica Rivas-Molloy (D) isn't from the Criminal Justice World, but she's been working hard to get input on the issues that affect us all.  I've known Veronica for 20 years and she would make an outstanding Justice for 1st Court of Appeals.

And finally, our old friend and former-Harris County District Clerk Chris Daniel (R) (man, I miss him as D.C.) is running for tax assessor.  He's a good man who does a good job with his responsibilities.  I'm glad to see him on the ballot again.

Whether you like all, some, or none of my recommendations, I hope that you will take the time to vote.  As always, I have a lot to say about candidates, but anyone who puts themselves out there to run for office has my respect for the time and effort put into the endeavor.  

The least the rest of us can do is turn out to vote.   

Thursday, October 1, 2020

Mike Hinton

 The world is a little darker tonight due to the passing of legendary defense attorney, former prosecutor, and friend Mike Hinton.

I've looked through all of my photos hoping to find one of me and the first man who gave me a job in the legal profession, and sadly I couldn't find one.  For those of you who knew Mike, it is understandable that I don't have a picture with him because he never sat still long enough for me to take one.

The phrase "to know him was to love him" is often said on the occasion of a person's passing, but I can't think of anyone more worthy of the phrase than Mike Hinton.  Everyone who met him simply loved him.  He didn't really give you much of an option to do otherwise.  He was a short, roly-poly man with an exuberance for simply existing.  He was perpetually happy and happy to see you.  Hugs, cheek kisses, over-the-top greetings followed by sincere conversations punctuated with his staccato exclamations and his deep laughs were Hinton trademarks.

If Mike had been a Star Wars character, he would have been Baby Yoda because literally everyone loved Mike.

But his over-the-top, buoyant personality cleverly hid an extremely formidable trial lawyer who was a very major character in the Harris County Criminal Justice world.  He was Mike "Machine Gun" Hinton to those who knew him in the 70s and 80s when he was the Special Crimes prosecutor under District Attorneys Carol Vance and Johnny Holmes.  The cases he tried were legendary.  The stories of him were legendary as well.

His most famous case from those days was the prosecution of Ronald Clark O'Bryan, the infamous murderer who ruined Halloween by putting cyanide in his own son's Pixy Sticks to collect insurance money.  Years ago, when Todd Dupont and I hosted HCCLA's Reasonable Doubt, Mike agreed to come on the show to talk about the case for our Halloween episode.  As always, he was fascinating and his memory of the case kept us all entranced as he took us back through the horrible case.

When he left the Office, he formed a partnership with the late Johnny Pizzitola and the late Bob Sussman.  That firm would evolve over the years but the reputation it held in all of its forms was always golden.   Through State and Federal Courts across Texas, the names of Mike Hinton and the attorneys he partnered with meant something.  What it usually meant to prosecutors was that they were about to get their butts kicked.

In the summer of 1997, I was between my first and second years of law school when I was introduced to Mike Hinton by a family friend.  Mike immediately gave me a clerkship for that summer, which was a good thing seeing as how I was clueless that a clerkship was something that most law students were supposed to do between their first and second years of schooling.  Mike told me that he'd pay me $15 an hour, which was far and away the most money my happy ass had ever made in my lifetime.  I remember calling my dad to tell him how much I was making and he noted, "Damn, son, I was paying you $8 an hour here at the printing company, and I didn't even think you were worth that!"

I don't think I really had an inkling of what a career in criminal law would be like before that summer.  I was young and just trying to manage law school, which was proving to be enough a challenge as it was. Suddenly, I had this high dollar job courtesy of a man who was legendary in the field.  The firm then was Hinton, Sussman, [Joe] Bailey & [Charley] Davidson, and I spent the majority of the time working with Bob and Joe on a death penalty capital (where I would first be introduced to Kelly Siegler and Vic Wisner).

Although I spent most of the time working for Bob and Joe, the atmosphere at HSB&D was wildly entertaining.  At the center of it was the whirlwind of Mike Hinton.  He buzzed in and out of the office talking ninety miles per hour and it drew everyone out of their offices just to be entertained with whatever stories he had experienced that day.   I could write a book about the short months that I spent there and the funny things that happened -- my favorite remains when Mike bailed out of his new car on Memorial Drive because he didn't know that such new-fangled things as seat heaters existed and he was sure his car was on fire.

But on a more serious note, the lessons I learned from Mike (and every other member of the firm) those short months were ones that I carried with me every day since that summer.  The first and foremost thing that they taught me was that everyone in the Harris County Criminal Justice Center world that we come in and out of every day is family.  From the Judge to the Prosecutor to the Coordinator to the Clerk to the CLO to the peon law clerk just there for the summer  -- all were treated like dear friends.  They stopped and talked to everyone.  Mike knew everyone's name and pretty much all of their families' names.  He walked through there like a man on a mission to converse with as many people as possible as he could.

He was humble and self-effacing.  Nobody thought Mike's zany stories (that often ended at something embarrassing to him) were funnier than Mike, himself.  He was one of those guys who quite frequently couldn't get through a story without laughing because he already knew how it would end.  I've never seen anyone pull off hyperactivity so endearingly.  

Mike had a fierce pride for the time he spent as an Assistant District Attorney for Harris County.  As far as he was concerned, the Office was hallowed ground that produced the finest trial lawyers in the State, Country, and World.  That was a sentiment shared by Bob, Joe, and Charley, as well, and it was instilled in those of us who wanted to someday be prosecutors.  While some former prosecutors who became defense lawyers were quick to condemn the Office once they left or talk of their time there as a necessary evil on the way to becoming true-believing members of the Defense Bar,  that was never the sentiment at Hinton, Sussman, Bailey and Davidson.  Although their time there had passed, they all spoke of it with pride and fondness.

That's something that I carried with me during my time at the Office and the time since I left, and I learned it from Mike Hinton.  He introduced me to the Harris County Criminal Justice System and the people I've come to know and love in the 23 years (and counting) since that summer.

But by far, the most endearing trait of Mike Hinton's was the pride he took in all of those who passed through that office.  From the clerk who became a lawyer to the lawyer who became a judge, he viewed us all as part of his legacy and he never failed to show how happy that made him.  From the regular HSB&D Clerk Reunions at Vincent's and Nino's to him just seeing us in court and grinning from ear to ear as he came to talk to us about a case he had with us.  I remember being a baby prosecutor and him seeing me in court and running up, hugging me, and saying: "Murray, I'm just so g*ddamn proud of you."

There were so many clerks that came through that office under his tutelage.  The vast majority of them had far longer stays at the office than me, but we all share that common bond of having found our starts at Hinton, Sussman, Bailey and Davidson.  The pride that Mike had in us was nothing compared to the pride we had in having started out under his wing.  

Although my time there was short, I will always carry with me the lessons learned from this sweet, dear, crazy crazy man. To be a descendant of Michael John Hinton's courthouse legacy is something that I always have and always will be very proud of.

P.S.  If you have a favorite story (that is printable) about Uncle Mike, please share it in the comments.  There are so many outstanding tales that need to live on.

Tuesday, September 15, 2020

Raps, Rides, and Kim Ogg's Campaign by Indictment Policy

Under the title of Scott Henson's noted criminal justice blog, Grits for Breakfast, is a subheading that reads "Welcome to Texas Justice:  You Might Beat the Rap, But You Won't Beat the Ride."  For those of you who are either 1) outside the criminal justice world; or 2) too young to recognize the old phrase, you are probably missing out on how witty Grit's use of the phrase is.

The original use of the phrase can be attributed to a police officer dealing with a suspect who is confident (rightfully or wrongfully) that the charges he is facing won't hold up in court.  The officer's response is that although said suspect may ultimately win in court ("beat the rap"), he's still arresting him and he's getting a "ride" to jail.  Scott's blog serves as a respected watchdog for the Texas Criminal Justice System and his well-researched posts delve into the inequities in the System as they apply to prisons, prosecution, and police (amongst other topics).  Scott's blurb points out that even if nothing is ultimately done about the issues he highlights, at least they will experience the "ride" of being brought to public attention.

As someone who has occasionally clashed with Grits on some issues and found himself on the ride side of the blog, I can attest that the "ride" is not much fun.  

I digress.

Although the phrase "you may beat the rap, but you won't beat the ride" might be considered innocuous enough, it actually highlights an ethical issue that prosecutors must deal with quite frequently in their careers -- what do you do with the case where you don't think you can prove it to a jury beyond a reasonable doubt?

From an ethical standpoint, the answer is clear.  If a prosecutor knows that he or she can't prove a case, then he or she has a duty to dismiss it.  The burden of proof for a criminal charge is proof beyond a reasonable doubt and that standard applies from Capital Murder all the way down to a speeding ticket.  If the burden can be met, so be it.  But anything South of Reasonable Doubt is Not Guilty in the eyes of the law.  

As I learned from the late great Professor Irene Rosenberg during my Criminal Procedure class at the University of Houston in the last Millenium, the Criminal Justice System is a series of moments involving the exercising of discretion -- from the cop who decides whether or not to pull over a vehicle all the way to the juror who decides to convict or acquit.  

No one in the entirety of the System, Professor Rosenberg noted, has more Power of Discretion than the Prosecutor.

The Prosecutor can decide whether or not to file charges.  The Prosecutor can decide whether or not to dismiss charges. The Prosecutor can decide what plea bargain offer to make and no one can force them to change that offer.   The Prosecutor can choose what evidence can ethically be put forward.  The Prosecutor can decide what the definition of "ethically put forward" means.  The power is not absolute.  There are checks and balances to it, obviously.  

But pound for pound, a prosecutor's discretion is so powerful that incoming baby prosecutors in Harris County used to receive a book entitled "A Prosecutor's Discretion" that we had to read as a job requirement.

The erroneous counter-argument to the principle that a prosecutor should dismiss any case he or she knows they can't prove is a cynical view of the phrase "everyone deserves their day in court."  Under this argument, a prosecutor knows she can't prove her case, but thinks that the Defendant should learn the valuable lesson of having the shit scared out of him by sitting through a trial anyway.  That's what courts are for, right?


If the proponent of a criminal case (the prosecutor for the State) doesn't even believe there is enough evidence to proceed forward, then they shouldn't be advocating otherwise to a jury -- even (and this is key) even if they 100% believe that the Accused is factually guilty.  A case without sufficient evidence shouldn't be filed regardless of a police officer's or prosecutor's intuitive belief of a suspect's guilt.  

A case should also not be filed to play to public sentiment, and it damn sure shouldn't be filed for political benefit.  

This is a fact that seems to be lost on Harris County District Attorney Kim Ogg.

In the wake of Hurricane Harvey, you may remember the Arkema explosion that happened in Crosby, Texas.  A brief summary of the event would be that conditions caused by Harvey led to an explosion at the plant that subsequently caused a great deal of pollution and some injuries to some of the emergency personnel who responded.  

A briefer summary (for Kim Ogg's purposes) is "political opportunity."

As a newly minted "progressive prosecutor" who had been in office less than a year, Ogg made a big showing in one of her now-infamous press conferences, announcing criminal charges were coming against Arkema and the people in charge of it.  Nobody likes polluters, right?  We have to protect our first responders, right?  What better way to show Houston how much an elected D.A. loves the community and first responders than going after one of those nasty polluting companies that seem to plague the community, right?  

Nevermind the fact that big Environmental Protection Agency violation cases are typically handled by the Feds, Ogg and her newly appointed Environmental Crimes Division Chief, Alex Forrest, were ready to be the proverbial David taking on a polluting Goliath.  

As she portrayed herself and her Office as crusaders, those of us in the legal community had a very strong feeling that Ogg had bitten off waaaaay more than she could chew.  Wide-scale environmental cases like what she was announcing against Arkema involve a tremendous amount of legal work and investigation.  Prosecutions like that normally come with a fleet of Federal Prosecutors working on the different aspects of the case.  A solitary prosecutor who had been working for the State less than a year was facing an impossible task.

As Arkema personnel began hiring prominent attorneys like Rusty Hardin, Dan Cogdell, Paul Nugent, Letitia Quinones, Chris Downey, Tim Johnson, Heather Peterson, Derek Hollingsworth, Cordt Akers and Nick Dickerson,  Ogg seemed to recognize that her new division chief may be in over his head as well.  

The Office quickly enlisted the office of prominent civil attorney Michael Doyle as a special prosecutor.  Doyle "coincidentally" just so happened to be a civil attorney suing the Houston Police Department over the infamous Harding Street Raid on behalf of the victims' families -- a cause that is also near and dear to Kim Ogg's heart.  It has been stated that Doyle's work on the case is pro bono.

So, to put this in context, Michael Doyle has a huge wrongful death suit against the City of Houston for the Harding Street Raid, which gives him a significant financial interest in the outcome of that case.  Kim Ogg's D.A.'s Office is involved in the investigation of Gerald Goines and the HPD Narcotics Division for their roles in that raid and the deaths of Doyle's clients.  When the Arkema investigation starts getting too complicated, Doyle is kind enough to offer his services to Kim Ogg for free.  See how that works?

So while Ogg worked on the Harding Street Raid, Doyle and his office worked on Arkema for free.  Seem a little conflict-of-interest-ish?  Check this out.

On April 10, 2019, President Donald Trump rolled into Crosby, Texas to showcase the region's recovery after Hurricane Harvey.  Now, I'm not a fan of Trump, but I think we can agree that the President of the United States visiting Crosby, Texas is a large and newsworthy event in Harris County.  

That's probably why Kim Ogg decided that April 10, 2019 would be the day that she had Alex Forrest and his merry band of prosecutors present the Arkema case to a Grand Jury.  While Trump was touting the region's recovery after Arkema on one side of the county, Ogg was indicting the company Downtown.   I'm sure that was a coincidence and not done for show, right.  That same day, Ogg announced in yet-another-press-conference, that Doyle would be offering his assistance in prosecuting the case.  

And later, that evening, she spent the evening at a fundraiser for her hosted by Amir Mireskandari and Muhammad Aziz, who was one of the lead attorneys in a lawsuit against . . . (give you one guess) . . . 


As it turns out, Kim Ogg is the Michaelangelo of painting a picture of impropriety.

But what does this have to do with "Raps and Rides?"  Well, the fact of the matter is that the Arkema charges kinda sorta weren't sustainable.  After a weeks-long trial, interrupted for months by COVID-19, the District Attorney's Office filed a mid-trial dismissal on several of the accused Arkema employees.

If you're curious as to why an Arkema director would be charged with "Assault of a Public Servant," that's because Ogg apparently thought it would be a more headline-grabbing charge if she insinuated that Arkema personnel had victimized the first responders who worked on containing the aftermath of the explosion.  

It is worth noting that Alexander Forrest, in filling out the mid-trial dismissal, checked the box that listed "Probable cause exists, but case cannot be proven beyond a reasonable doubt at this time."  That's the State's way of announcing to the Court "oh yeah, well I still think they are guilty."  It also slows up the process for the accused being able to get the charge expunged off of his record.  To Hell with that whole presumption of innocence business.

A mid-trial dismissal is an embarrassing moment for a prosecutor in most instances.  It happens, but it sends a message that you didn't know your case.  If you are in charge of directing a prosecution that could damage, destroy, or end someone's life, it is probably a good practice tip that you know your case.   It becomes even more embarrassing for someone like, say, an elected-District Attorney who held multiple press conferences about how good a case was (as she is wont to do), only to watch it fizzle and explode on the launchpad.  

Of course, some might argue that Harris County District Attorney Kim Ogg never really cared too much about what the outcome of the Arkema trial would be.  She got all the positive press, publicity, and fundraising done by just getting it indicted.  Who cares how it ultimately turned out?  

In the Arkema case, the "ride" was well worth the embarrassment of the Accused "beating the rap."

It's worth noting that at least three prosecutors who have departed the Harris County District Attorney's Office in the past several months (including my awesome law partner, Cheryl Chapell, have left resignation letters citing disgust concerns that the Office was pursuing cases based on public sentiment rather than "evidence-based prosecutions" as Ogg enjoys applauding herself for.  That's basically giving into the idea of mob rule, which a prosecutor with integrity should always shun.  

But in Kim Ogg's case, she responded to the dismissal of one high profile by indicting another one.

As if on cue, the District Attorney's Office followed the news of the Arkema dismissals with the announcement that they had secured an indictment against former-Baytown Police Officer Juan Delacruz for the offense of 1st Degree Aggravated Assault by a Public Servant for the May 13, 2019 shooting death of Pamela Turner.

Without speaking to the merits of the case against Delacruz, the timing of the indictment and the subsequent announcement is interesting.  Almost a year and a half after the shooting, the D.A.'s Office just so happens to announce an indictment on a high publicity case at a time that coincides with a high profile mid-trial dismissal.  It's almost as if the Office was sitting on taking the case to Grand Jury so that they would have it available for just such an occasion.

Whether or not Juan Delacruz ultimately beats the "rap" for which he was indicted won't be determined for months, if not years.  He will be experiencing the "ride" in the media for quite some time, though, and Kim Ogg will love every minute of it.  Her "tough on bad cops" schtick plays well with the liberal voters that she's otherwise alienated by not being quite as progressive as they had once hoped.  This is also why she keeps filing additional charges on Gerald Goines and anyone else she can possibly link to the Harding Street Raid.  

It's just good politics, even if it flies in the face of what a prosecutor with integrity should be.

A prosecutor with integrity knows that if she doesn't have confidence in the rap, there should never be any ride.

Sunday, September 13, 2020

Ricardo Rodriguez


My good friend and fellow defense attorney, Ricardo Rodriguez, passed away on Friday.  

I've heard that he had some health issues that were complicated by the COVID virus, but I haven't confirmed that.  The last time I saw him -- which doesn't seem like was all that long ago -- he seemed healthy and happy.  His sudden passing is a tremendous shock and a huge loss to all of us who knew him.

I posted about his passing on my personal Facebook page and the reactions to his death were all the same.  Everyone was heartbroken and shocked.  Everyone talked about what a gentleman and honorable man he was, and how he was kind to everyone he met.  

He deserved every last one of those accolades and then some.  He was a fixture and a giant of the Harris County Criminal Justice System.  He was a man who embodied Character.  And he was definitely a man who was a Character.

I first saw Ricardo Rodriguez when I was an academic intern working in the 209th District Court during the summer of 1998.  I didn't meet him then, but he was hard to miss if he was in the room.  He was tall and skinny, dressed in sharp suits and even sharper boots, coupled with jet black hair and his trademark mustache.  He moved through the courthouse with the confidence and ease of a lawyer who was willing to throw himself headfirst into any case with full gusto.  

I remember thinking that if they ever made a movie about this place, that dude with the mustache was definitely going to be a big part of it.

Although I wouldn't really get to know him for another few years, I gathered quickly that he was one of the attorneys who took on death penalty cases.  That was, and is, a pretty elite group of lawyers in Harris County, in my mind.  As a Spanish speaker, Ricardo would handle a great many death penalty cases during his long career in Harris County.  He knew his business and he was good at it.  I knew his reputation as being a good and hard-working lawyer before I met him.

In 2002, I was promoted to the rank of Felony Two and my first assignment was in the 228th District Court, which at that time was presided over by Judge Ted Poe.  Ricardo and Rachel Capote were the two main contract attorneys in the 228th, and that's where I first met them both.

For those of you who came after Judge Poe retired from the bench and headed to Washington as a U.S. Representative, you will have to take my word for it when I tell you that he was an extremely intimidating judge.  He was well-known in the media for being tough on crime.  He was well-known in the D.A.'s Office for having extremely high expectations for the prosecutors in court.  He was deadly serious on the bench and he exhibited no patience for foolishness or incompetence in his courtroom.

As a brand new Felony Two, I was very excited about being in his court.  But I was also very very nervous.  If Judge Poe was on the bench, I spent the morning concentrating deeply on just not screwing up.  I was very quiet back then, and Ricardo initially took my silence as either a lack of personality or maybe even a little bit of snobbery.

I remember standing by the jury box one day when he came up to me and said: "Murray, brother.  We need to loosen you up.  You're so tense.  You don't ever say anything."

I remember thinking "Me?  No one has ever accused me of not saying anything."  I didn't want him to think I was a snob.  I started telling him how nervous I was being in front of Judge Poe.  He nodded sympathetically and said that Judge Poe wasn't that strict and I needed to relax.  

And I did.  Slowly but surely.  I looked at the 228th like the song says about New York City.  If I could make it there, I could make it anywhere.  The more familiar I got with the court and with the extremely intimidating Judge Poe, the more loose and funny it became in the courtroom.  Although we didn't get to the level where we were cutting up when Judge Poe was on the bench, the dynamics between the prosecution, the court staff, and the defense bar were a very fun environment.

The leader of that pack was Ricardo.  He was the old hand with all the confidence in the world, but he was so nice -- so fostering to those of us who didn't quite know the ropes.  When Paul Doyle came in as a new Felony Three, the courtroom had the atmosphere of a sitcom.  Ricardo would exclaim "Que gacho!" periodically, and I had no clue what it meant.  But he would be so animated when he said, I would do it too.  He had to tell me I was using the phrase wrong.

On a side note, I finally looked up what "que gacho!" means before writing this post and saw that it directly translates to "how awful," which is a perfect phrase to describe how the courthouse community all feels about losing him.

I tried my first murder case against Ricardo and in front of Judge Poe.  That's a thing I'm very proud of.  That was some very intimidating stuff.  The case was out of LaPorte and it dealt with a body found in the trunk of a burning car.  It was largely circumstantial and Ricardo was more than happy to rattle my cage by pointing out that I had a big problem proving it.   The case got a whole lot better when the Defendant's girlfriend decided to testify against him.

In the many years that followed, Ricardo would always shake his head and note "I had you 'til his girlfriend flipped on him."  He was right about that.  The guy had a previous manslaughter conviction so once the jury convicted him, the punishment phase was going to be ugly.

Ricardo did what good defense attorneys do when they don't have anything to work with -- he preserved the hell out of the record by objecting to every single thing I did.  He objected to me doing the predicate wrong on introducing Judgment and Sentences until I had to get out my D.A.-issued predicate manual and read the predicate word for word.  

And if I didn't get it right, Judge Poe sustained every objection Ricardo made pointing out my screw-ups.  He even objected to the ink not being dark enough on the clerk's certification stamp on the paper.  

It was painful, but I learned so much from the experience and I learned so much from Ricardo.

We bonded through it.  We became good friends.  I knew all about his family and his elderly father whom he loved very dearly.  He talked of Laredo and his service in the Army in Vietnam.  He brought pictures from his days in the military.  In many of them, he was wearing a large bandage on the side of his neck from a grazing wound from enemy fire.  He knew my dad had served in Vietnam and he always asked how my dad was doing, every time I saw him.

He was one of the funniest, most cheerful people I ever met.  His self-deprecating stories about his dating life always was a hot topic of conversations after a weekend in court.  

Every time I saw him, he'd put his hand on my shoulder and call me "brother."  He always asked about me, my family, everyone, everything.  We'd always talk about going to get crawfish together.  We would go do that on occasion when I was in the 228th.  I wish we had kept up with it as years went by.  

I can think of a million Ricardo stories that were all so funny and showed what a good man and good friend he was.  Based on the reactions on Facebook, I think we all have those stories about him.  

He retired from practice about two years ago and he was extremely excited about leaving the CJC for his family ranch in Laredo.  His going-away party was huge, attended by retired and active judges, prosecutors, and defense attorneys who came to give them their best wishes.  We were all sad to see him retire and leave Houston, but he was so happy about it that we couldn't help but be happy for him.

It is heartbreaking that he didn't get to enjoy that well-deserved retirement longer than he did.  Nobody deserved it more than he did.

He was a true gentleman, a courtroom warrior, and a beloved friend.  

Rest in peace, Ricardo.  You were the best of us.

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...