Wednesday, February 26, 2020

Outsourcing the Experience

When I was a First-Year law clerk with Hinton, Bailey, Sussman & Davidson way back in 1997, I had the opportunity to be introduced to the Judge of the 262nd District Court, Doug Shaver.  He asked me what I planned to do when I finished law school and I told him that I wanted to go back home to Brazos County and work at the District Attorney's Office.   He asked me why didn't I want to stay in Harris County and work for the D.A.'s Office here.

In that special brand of arrogance that is so typical of a first-year law student, I told him that at the Brazos County D.A.'s Office, they prosecuted only felonies, and I would be able to jump right in and start trying murders as soon as I got out of law school.  I elaborated by telling him that if I went to Harris County, I'd get stuck trying DWIs and other misdemeanors for too long before I got a chance to start trying the good stuff.

Judge Shaver shook his head and smiled.

"Son, you don't need to be looking down your nose at those DWIs and misdemeanors.  You need to know what you are doing before you start trying serious cases," he said.  "Misdemeanor is where you learn."

Although I didn't want to agree with him, I knew better than to argue. It would be years later before I came to realize how right he was.

I think most of us who have been lawyers for a couple of decades several years now can fully recognize the hubris we have in law school.  To be fair to our younger selves, having that level of cockiness is somewhat necessary if you want to be a trial lawyer.

Obviously, I ended up in the Harris County District Attorney's Office, and on the day I started, I went to the Justice of the Peace Divison.  The arrogant law student from 1997 wasn't even assigned to handle something as serious as a DWI.

I was trying freaking traffic ticket cases.

In retrospect, the four months I spent in the JP Division were some of my fondest at the Office.  I made some great friends.  The camaraderie was tremendous -- and it remains the single thing I miss the most about the Office.

But most importantly, I learned how to stand in front of a jury and try a case.

And if I lost that case, the Scales of Justice weren't too badly damaged.

We tried them all back then and we won sometimes.  We lost a lot.  We tried No Seat Belt cases, fishing without a license, speeding, running stop signs, expired registrations and inspections and (on super serious days) Passing a School Bus -- the capital murder of the Justice of the Peace Division. We would try four or five jury trials a day sometimes.  Sometimes, more than that.  We didn't have to prepare.  Our offense reports were literally traffic tickets.

After four months, we walked out of the JP Division feeling completely at ease with picking a jury, presenting evidence, and doing closing arguments.  Granted, Justice of the Peace Courts are not courts of record, so none of us really walked out of there as procedural rocket scientists, but we learned the fundamentals of Criminal Law and Procedure in a way that just can't be taught in law school.  Not even being on a law school's mock trial comes close to the real thing.

Back then, some of the big firms in Houston recognized the value of rookie lawyers getting some experience in the JP courts.  They offered to send some of their new baby lawyers over to get some experience by trying cases on behalf of the State of Texas.  Those offers were politely declined by District Attorney Johnny Holmes and later, Chuck Rosenthal.  They knew the value of Baby Prosecutors getting that experience and (say what you will about past HCDA regimes) they knew the building blocks of cultivating a rookie and turning him or her into a damn good trial lawyer.

In short, the Justice of the Peace Court experience was priceless for those of us dumbasses, fresh out of law school.  Just like how most of us start our first driving lesson in a mall parking lot or on a dirt road out in the country, we needed to get comfortable with the machines we were operating before we took them out on the freeway.

I bring all of this up now, because of this:

On Monday, District Attorney Kim Ogg proudly announced that she was going to reverse the previous longstanding policy of administrations past, and take those prestigious law firms up on their offers to play prosecutor in the JP Court.  If you notice by the number of comments, it generated a lot of commentary in the Twitterverse.  A lot of that commentary was pretty damn negative. [SIDENOTE:  I totally learned this new trendy term yesterday from some people a lot younger than me called "Ratioed," which apparently is the verb used to describe what happens when you get more comments on your Twitter post than you get likes or retweets.  As in, this post by Kim Ogg totally got ratioed."  Who knew?]

The firms Baker Botts, Bracewell, Hunton, Andrews & Kurth, and Vinson & Elkins are the four big beneficiaries of the new part-time prosecutor gigs.  Coincidentally, those firms all donated to Kim Ogg's campaign.  There's nothing unusual about big firms making donations to political candidates, but one might argue that it is a little bit unseemly when the beneficiary of those donations is handing out free experience to those firms.  But that's just my opinion.

Ironically, as Kim Ogg was outsourcing the experience that is gained in the Justice of the Peace Division, one of her high-level prosecutors, Alex Forrest, was getting raked over the coals for failing to comply with his duty to turn over exculpatory Brady evidence in the high-profile case against Arkema, Inc.   I like Alex as a person, but he jumped to being the Bureau Chief of Environmental as one of Kim Ogg's handpicked hires when she took office in 2017.   He skipped all of those priceless opportunities to gain experience and knowledge by going directly to the top of the ladder.

Coincidentally, Alex Forrest was a contributor to Ogg's campaign, as well. 

I would like to wrap this up by saying a sincere thank you to Judge Doug Shaver for imparting that valuable lesson to me back in 1997.  I may not have agreed with the advice at the time of delivery, but I ended up following it.  You were 100% correct.

You can't put a price tag on that type of experience.

Unless you are Kim Ogg, that is.

Tuesday, February 18, 2020

The 2020 Democratic Primary Race for Harris County District Attorney

The two biggest local races on the Democratic Primary ballot are the races for Harris County District Attorney and Harris County Sheriff.  Although Sheriff Ed Gonzalez does have a couple of primary challengers, he's done a very good job during his first term and has managed to avoid any major controversy.  He's got my vote and I can't imagine this primary being too difficult for him to manage.

Obviously, the same cannot be said for incumbent District Attorney Kim Ogg, who has courted controversy at every turn, literally before she was even sworn into office.

I supported Ogg in 2016.   Although I didn't know her very well, I agreed with her platform on the future of prosecuting.  Employing the old adage that Judge Caprice Cosper once told me that "there are people in this business who you are mad at and people whom you are afraid of and it would behoove you to learn the difference," I felt that Ogg's beliefs more or less echoed this sentiment -- focus resources on going after violent offenders and start easing up on low-level, victimless offenses.  I believed in giving opportunities to those low-level offenders to keep their records clean so that a mistake early in life didn't cost them a future.  Although then-District Attorney Devon Anderson was a friend (and most of the prosecutors that I knew were happy to have her as their leader), I thought that her views on the Criminal Justice System were not in step with what they should have been.

So, back then, I voted for Ogg.

And it really, really pissed off a lot of my prosecutor friends.  There's one former friend that won't even speak to me after three years.  SPOILER ALERT:  I'm pretty sure Donald Trump candidacy had A WHOLE LOT more influence on Ogg's victory than my 2016 support of her did.

But, I digress.

While I liked what I was hearing from Kim Ogg's platform in 2016, what I failed to account for was Kim Ogg herself.  As I mentioned earlier, I knew her in passing and she had always been friendly.  She certainly didn't seem to be as cheerfully evil as former District Attorney Pat Lykos.  As someone who (along with eight of my coworkers) got fired by Lykos, I never thought that Ogg's political vindictiveness would be anywhere near  Lykosian levels.

Boy, I sure missed the mark on that one, didn't I?

Before even taking office, Ogg let roughly forty experienced prosecutors know that she would not be needing their services under her administration.  She found various and sundry reasons to justify her reasoning for the firings, but in the end, it pretty much came down to the fact that they were either a) perceived as being too loyal to Devon Anderson; or b) had pissed off a loyal Ogg crony.

Sadly, she was just giving a very stark preview of what was to come under her Administration.

For the past three years, the Ogg Administration has largely been governed by the principle of what is best for Kim Ogg, the individual.  From an absolute onslaught of self-serving press conferences (that more often than not turned out to be more puffing than prosecuting) to the shameless hiring of campaign workers "community outreach" specialists (like Clarence Bradford and Dwight Boykins) with Office funds, Ogg has been much more effective at promoting herself than she has been promoting Justice.  I'm not naive.  I get that this is part of being an elected official, but Ogg's use of Office resources to support her electability is gratuitous, shameless, and unseemly for the position.

On the flip side of the Ogg temper is what she's done to those who have crossed her.  One only has to look to last year's firings of Andrew Smith (who dared to stand up to her when she was feeling slightly . . . shall we say "perjurous?") and her own First Assistant, Tom Berg (who disagreed with her on a policy matter).  Both of these men were (and remain) respected attorneys with the highest of integrity, but they learned the hard way that disagreeing with Ogg makes a prosecutor per se a bad public servant in her book.

And let us not forget that her beef with the Houston Police Department (because HPOU President Joe Gamaldi had dared to criticize her publicly) led to her temporarily blocking the entire Houston Police Department's access to the Consolidated Criminal History Database.  Please let that sink in for a moment.  Kim Ogg got so mad at what the Police Union said about her that she blocked access to a computer database used for law enforcement.  There for awhile, I had more access to criminal records as a defense attorney than HPD. 

When I read the Houston Chronicle's endorsement of Ogg on Sunday, I literally laughed out loud when one of the first sentences described her as "stable."  Quite frankly, I can't think of a word that would describe her more inaccurately.  The Chron also stated that "her integrity is sound," which I find genuinely perplexing if one takes even a passing glance at her dealings with Amir Mireskandari.

Mireskandari was Ogg campaign committee chairman in 2016, and did such a great job for her that she appointed him as a "consultant" on financial crime cases.  I guess they were already filled up on "community outreach" personnel.  As it turned out, Mireskandari was apparently using his position within the Ogg Administration to make some pretty shady side deals with some poker gaming rooms for his own personal financial business.  This is kind of akin to letting the proverbial fox guard the henhouse. 

The Mireskandari Scandal led to cases being dismissed and ultimately Mireskandari being terminated from the Office.  Strangely, it doesn't look like Ogg ever investigated what crimes Mireskandari may have committed in the process.  That's kind of a strange contrast from the DA who once threatened to prosecute former prosecutors for disparaging her.  I guess the lesson here is that if you talk bad about her, you might get prosecuted.  Use her office to scam people out of money, no big deal.

The bottom line is that Kim Ogg is neither stable nor is her integrity sound.  It is laughable that the Chronicle would seem to think that.  It's like even the Chronicle editorial board doesn't actually read the Chronicle, either.

As most of you know, Ogg has three former prosecutors challenging her, and my belief is that each of them is a better choice than the incumbent.  Whether or not that will translate into a victory for them remains to be seen.

Former prosecutor Audia Jones quit the District Attorney's Office a year or so ago and almost immediately announced her candidacy to run against her former boss.  Of all the candidates, I probably know her the least, although I am a big fan of her husband, 180th District Court Judge DaSean Jones, whom I've known since he was an attorney.  Of all the candidates, Audia Jones is certainly the youngest and she does not have the years of experience that the others do, having served as a prosecutor for approximately three years.  Her platform is very progressive, and she has garnered the endorsement of several prominent progressive groups who support that platform.  Last week, she even got an endorsement from Bernie Sanders.

I am genuinely curious to see how Jones does in the primary.  The progressive movement is certainly vocal and active across the country, especially within the Criminal Justice System.  However, I think that it remains to be seen how that translates into votes in Harris County.  It is a platform that will definitely appeal to younger voters, but I don't know whether or not it will be enough to unseat an entrenched incumbent like Ogg.

Former prosecutor and highly respected defense attorney Todd Overstreet is also running against Kim Ogg.  Overstreet is a friend and a very popular figure within the Criminal Justice Center.  He is a very skilled litigator who runs an extremely successful law practice.  I'm not entirely sure why he would want to take on the job of District Attorney, but he is unquestionably a man who follows his own path in life.  On the campaign trail, he has indicated that he believes in a slightly more conservative approach to criminal justice than the other candidates.  This has resonated with many former prosecutors from "the old days" but I'm not sure whether or not that will be enough to unseat Ogg.

It should be no surprise to anyone that reads this blog, that my personal endorsement for Harris County District Attorney is Carvana Cloud.

As I've said before and will say again and again and again, Carvana is someone who is uniquely qualified to be the District Attorney.  Her platform is the same progressive platform that led me to vote Democratic in 2016, and her ability to actually execute that platform as an effective and truly stable leader is what makes her the best candidate for the office.

Carvana is a proud Houstonian from Acres Homes, a neighborhood that has embraced her every bit as much as she has embraced it.  She is a bilingual graduate of Kinkaid High School and a former prosecutor.  I first met her when I was still a prosecutor and even back then, she exuded the confidence, integrity, and charisma of an effective prosecutor and leader within the office.  She left under the Lykos Administration after Lykos targeted her for her support of her Lykos's opponent in the 2008 general election, but returned as a Division Chief under Ogg.

Ogg recruited Carvana out of private practice to be a Division Chief in her new administration and subsequently promoted her to Trial Bureau Chief.  In that sense, I guess you could say that even Kim Ogg has endorsed Carvana's abilities to prosecute, administrate, and seek justice -- and she did so twice!

But the most important reason that I am endorsing Carvana Cloud is that Carvana wants to be the District Attorney to serve the Office and the people of Harris County that it represents.  She is there to help, not there to use the Office to promote her own personal agenda and petty grievances.  She is living proof that a progressive prosecutor can be an outstanding prosecutor.  She is loved by her former co-workers at the District Attorney's Office and she is loved by the Defense Bar.

Carvana Cloud would make a truly exceptional District Attorney.

My Vote:  Carvana Cloud

Sunday, February 16, 2020

The 2020 Criminal Justice Primaries

With early voting beginning this Tuesday, February 18th, it occurred to me that I might want to get off my lazy butt and write down my thoughts on this year's primaries.

It's an extremely interesting year, in my opinion, because for the first time since I've been a voter in Harris County, the Republican primary is a virtual Ghost Town compared to the Democratic primary.  Most of the District and County Courts that are on the ballot (and with one exception, held by Democratic incumbents) didn't even field candidates.  Those that did have candidates on the ballot were uncontested races, so I'm not going to even address them right now.

The decimating defeats of 2016 and 2018 have apparently led most aspiring Republican candidates to save their money rather than waste it on a campaign.  2020 marks the first year where voters will no longer have the "straight ticket" voting option in November, but I guess that hasn't inspired too many candidacies.  Personally, I do think that lack of straight-ticket voting will narrow the margin of victory in November, but not so significantly that Republican candidates will take back benches in Harris County.

The only contested Republican primary that is directly involving the Harris County Criminal Justice Center is the race for District Attorney.

Republican Primary for District Attorney
The Republican race for Harris County District Attorney is a three-person race pitting former Harris County District Court Chief Lori DeAngelo against former Montgomery County District Court Chief and Houston Police Officers' Union Attorney Mary Nan Huffman and noted moron, Lloyd Oliver.

To be clear, Lloyd Oliver, who last ran for District Attorney as a Democrat, should not be considered an actual candidate by anyone who places even the smallest amount of pride in his or her vote.  He is a vile, misogynistic, and homophobic defense attorney who runs in every election with no expectation of succeeding, regardless of party.  His candidacy is nothing more than a tired joke that we are all forced to suffer through every two years.

By stark contrast, Lori DeAngelo and Mary Nan Huffman are real candidates, albeit they are new to running for office.  I've never met Mary Nan Huffman in person, but she has an excellent reputation with many of our mutual friends.  She's a ten-year veteran of the Montgomery County District Attorney's Office, where she rose to the level of felony chief.   She's been one of the Houston Police Officers Union attorneys since leaving MoCo, and she is obviously the candidate being supported by the Union.  I don't know how well she is known in the Harris County Republican circles, so it will be interesting to see how well she does.

I've known Lori DeAngelo since 1999 when I first started at the D.A.'s Office, where she was already prosecuting.  Her tenure far exceeded mine, serving as a prosecutor for over 20 years.  She worked in different divisions within the Office before returning to the Trial Bureau as a chief.  I like Lori and I consider her to be a friend.  I enjoyed dealing with her as a practical and no-nonsense prosecutor when I had cases in her court.  She was fair and she also recognized when a case had weaknesses for the State.  She wasn't scared to dismiss a case if the evidence didn't rise to the level of being provable beyond a reasonable doubt.   She left the Office under her own terms and in frustration with the way Kim Ogg was running the Office.

I think both candidates are running for similar reasons and that their platforms are relatively similar as well.   Unless some extraordinary circumstances occur between now and November, however, there is a high likelihood that this is just a battle to see who comes in second place.  That's unfortunate because I think Huffman and DeAngelo are both qualified candidates.

I'm not planning on voting in the Republican primary, but if I was, I would vote for Lori DeAngelo.

Now, that we've covered the one and only Republican CJC race, we can move on to the five District Court races that have contested Democratic primaries.  As noted above, with the exception of the 339th District Court's Judge Jesse McClure, all of the District Courts are currently held by Democratic Incumbents.  Judge McClure was appointed to the Court when Judge Maria T. Jackson stepped down to run for County Commissioner against Rodney Ellis.  Additionally, 337th District Court Judge Herb Ritchie is retiring at the end of his term.  Three incumbent judges, Nikita Harmon, Randy Roll, and George Powell drew challengers in their primaries.

It is worth noting that (with the exception of the 339th), there are no Republican challengers.  Whoever wins the primary will be the judge on January 1, 2021.

176th District Court
District Court Judge Nikita Harmon took the bench in 2016 as part of the Democratic sweep.  Prior to that, she had been an attorney and municipal court judge.  At the time, she was relatively unknown to most regulars in the CJC unless they were attorneys who also covered muni court.  During her first year on the Bench, she got some unusual attention when she got into a bizarre dispute with 263rd District Court Judge Jim Wallace over courtroom use in the wake of Hurricane Harvey.

I've only appeared in Judge Harmon's Court on a handful of occasions, so I don't really have a depth of knowledge in giving a review of her performance.  Those times I've been there, she has been a little more formal than many judges.  I have not tried a case or a contested hearing to her, so I'd have to defer to someone with more knowledge on what that is like.

Judge Harmon is being challenged by former HCDA prosecutor and current defense attorney, Bryan Acklin.  I've known Bryan since his days at the D.A.'s Office, and he is a friend.  I enjoyed working with him when he was a prosecutor and found him to be friendly, reasonable and prepared in his handling of cases.  As a defense attorney, I've seen him throw himself enthusiastically into his work.  He is a zealous advocate for his clients while remaining personable and friendly with his prosecutorial opponents.  He researches the law and he applies it to his clients' advantage.

My Vote:  Brian Acklin

179th District Court
District Court Judge Randy Roll is serving his second tour of duty as a District Court Judge of the 179th.  He won the Bench in 2008, lost it in 2012, and won it back again in 2016.  I always hate writing about Judge Roll, because he is truly a nice, nice man.  However, he just always seems to find himself in the middle of controversy as a judge.

I seriously want to be able to endorse Judge Roll, because he is kind.  I am very aware that I've written things on this blog that have hurt his feelings, but to his immense credit, he has never been anything but courteous and professional to me in court and he has certainly never held what I've said about him against my clients.  I really like him as a person very much.  I just wish he would quit doing such questionable things from the Bench.

Judge Roll's opponent in this race is former Assistant District Attorney and current defense attorney, Ana Martinez.  I've known Ana from her years as a prosecutor, and she is one the few candidates running that I've actually gone to trial against.  She whipped my butt in trial (although I'd like to think that was partially due to the fact that she had some pretty good evidence on her side).  I've always believed that there is no better way to learn who a prosecutor (or defense attorney) is than to try a case against them, and I learned a lot about Ana.  She was an extremely impressive, fair, and dedicated prosecutor and she has retained those traits as a defense attorney.

As a prosecutor, Ana worked in human trafficking, where she was passionate about going after those who profited from the sex trade.  As a defense attorney, she has focused her practice on helping people who have been caught up in the sex trade as workers.  She is dedicated to making a difference in their lives and she's doing a pretty remarkable job of it.  She is also a hard worker who educates herself on the law and operates from a place of compassion.  She'd make a great judge.

My Vote:  Ana Martinez

337th District Court
With the retirement of current Judge Herb Ritchie, four candidates are running for the Democratic nomination:  former prosecutor and current defense attorney Colleen Gaido, defense attorney John Clark, defense attorney Brennen Dunn, and general practicing attorney David Vuong.

I don't know David Vuong at all, although we are friends on Facebook (NOTE:  I get a lot of Facebook friend requests from candidates).  I don't recall him being a face that I see very often around the courthouse and I've never dealt with him.  He does seem very enthusiastic about his yard signs, but other than that, I don't think he has the qualifications of the other three candidates.

I don't know Brennen Dunn personally either and I see that he lists several areas of law practice on his State Bar profile.  However, I do know that he has an established reputation as a criminal defense attorney, and as a good one, at that.

I do know John Clark.  He's been a practicing criminal defense attorney for as long as I can remember, serving for a very long time as the contract attorney in the 208th District Court.

With all due respect to the other candidates, however, it is hard to imagine a better candidate for judge than Colleen Gaido.  Colleen is a former Harris County Assistant District Attorney who was probably one of the most respected and beloved prosecutors that Office has ever produced.  She literally may be the most popular person to have ever worked there.  I mean, everyone loves Colleen.  She was fair, friendly, reasonable, knowledgable, and nice.  Her co-workers loved her and so did defense attorneys.  She was no pushover, but she never relished punishing people during her ADA days.  She had a strong sense of right and wrong, but no matter how right she was, that never translated into arrogance or anything else negative.  As a defense attorney, she remains equally loved by both sides and there is a groundswell of support for her.

She is ultra-qualified to be judge.  She's probably ultra-qualified to be president, for that matter.  I would vote for her over myself in any given election.  She's a fantastic candidate, friend, and human.  I hope to see her on the Bench in January.

My Vote:  Colleen Gaido

339th District Court
When former 339th District Court Judge Maria T. Jackson stepped down to run against Commissioner Rodney Ellis, three Democratic candidates announced that they intended to run for the Bench.   The winner will face off against Republican Judge Jesse McClure (who was appointed by Governor Abbott to fulfill Jackson's unexpired term) in November.  Attorneys Dennis Powell and Candace White are running against former prosecutor and current Assistant Public Defendant Te'iva Bell for the Democratic nomination.

I didn't immediately recognize Powell's name, but I recognized his face when I looked up his website.  He is a longtime attorney who does practice criminal law.  I'm not sure whether or not he practices it exclusively, but I have certainly seen him around the criminal courthouse for years.  I only know him in passing.

I'm not familiar with Candace White at all, although her face does seem familiar when I looked at her website.  Her resume does not indicate that she has a very strong background in criminal law, other than being a municipal court judge, which handles only the lowest level of misdemeanors.

I've known Te'iva Bell since she was a baby prosecutor at the D.A.'s Office.  She was my friend then and I'm proud to call her my friend now.  She left the D.A.'s Office for defense work awhile ago and she's one of the original attorneys who went to work for the Public Defender's Office when it was first established.  She has dedicated her professional career to criminal justice and she is a very zealous and skilled advocate for her clients.  She's also one of the nicest people I know, and I look forward to voting for her this week.

My Vote:  Te'iva Bell

351st District Court
Incumbent 351st George Powell is running for reelection against challenger and attorney Natalia "Nata" Cornelio.  You may recall that there was some drama over Judge Powell being on that ballot after there was some confusion over filing fees.  Fortunately, Judge Powell will be on the ballot in March.

I've known Judge Powell since he was a defense attorney.  I liked him then and I like him now.  I have only had one or two cases in his court since he won the Bench in 2016, but those limited experiences have always been positive.  He is well-liked by both prosecutors and defense attorneys as a Judge who is friendly, reasonable and attentive to the cases before him.

I do not know Natalia Cornelio personally.  She certainly has some impressive items on her resume, including working as a Federal Public Defender, working for the 9th Circuit Court of Appeals, and as the Director of Criminal Justice Reform at the Texas Civil Rights Project.  That being said, she doesn't have experience inside the Harris County Criminal Justice Center like Judge Powell does.  She seems to be the preferred candidate of some "higher ups" in the Democratic Party, who attempted to keep Judge Powell off the ballot.  Although there is nothing to suggest that Cornelio had anything at all to do with that, personally, it still bothers me.

My Vote:  George Powell

So, there you have it.

Seems like I'm forgetting something.

Oh yeah, that whole Democratic Primary for Harris County District Attorney.

I'm going to write a separate post about the race between Carvana Cloud, Todd Overstreet, Audia Jones, and incumbent Kim Ogg.  This may shock you, but I have a lot to say about that particular race.

But if you are just dying of anticipation to know who I'm voting for, SPOILER ALERT - - -

My Vote:  Carvana Cloud

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 ...