Friday, March 27, 2020

Episode Five: The Empress Strikes Out

SCENE:  The Star Destroyer Jefferson hovers over a very empty Downtown.  [INTERIOR]. The Imperial Throne Room.  An uncharacteristically cheerful EMPRESS OGG is standing at the head of her conference room table.  Behind her, her lead stormtrooper BOBA CLAPPART is busily preparing a bacta tank for one person.  VICE-ADMIRAL MITCHAM sits stoically at the head of the table as other members of the ADVISORY COUNCIL file into the room.

EMPRESS OGG:  Greetings my dearest friends and co-workers!  Come in!  Come in!  It is so lovely to see you today!  It brings me great joy to see all of you!

YVONNE VENTRESS (whispering):  Why is she so happy?

COUNT MUSICK:  I don't know.  I haven't seen her this happy since the Envirolorian's Arkema trial got postponed.

YVONNE VENTRESS:  Yes, I heard the trial was not going well.  Some guy named Brady kept showing up unexpectedly?

COUNT MUSICK:  Yes.  Something like that.

VICE-ADMIRAL MITCHAM:  Let's call the meeting to order.

EMPRESS OGG:  Yes!  I have things to do.  How is the bacta tank coming along, Boba?

BOBA CLAPPART:  We are working on it, Empress, but I still don't see how we are going to fit your press conference podium in there with you.  This thing only has a three-foot diameter.

EMPRESS OGG:  Honestly, Boba.  I don't know why I give you any jobs in the first place.  First, you can't frame a group of teenagers for murder and now you can't outfit the bacta tank with the bare necessities that I need to survive.

BOBA CLAPPART:  Well, I mean it does provide nutrients and oxygen while keeping you completely insulated from the coronavirus, it's just . . .

EMPRESS OGG:  No podium.  No deal.  Fix it, nitwit.

BOBA CLAPPART:  Yes, Empress.

EMPRESS OGG:  Now, as I was saying, let's call the meeting to order . . .


VICE-ADMIRAL MITCHAM:  Nice of you to join us, Vivian.

CHIEF KING:  Screw you, New Tom Berg.  I was at lunch.



EMPRESS OGG:  Calm down, Vivian.  It is too lovely of a day to be ruined with in-fighting.

CHIEF KING:  Who the hell gave you happy pills?

EMPRESS OGG:  No happy pills, my friend.  I don't need them.  Why would I?  Life has never been better for your favorite Ogginator.  I won my election and all of the Jawas are happier than they have been since I first took office.

VICE-ADMIRAL MITCHAM:  I think they are happy because you finally let them work from home during the coronavirus, Empress.

EMPRESS OGG:  Nonsense.  They are happy because I won.  That's why they kept coming to work even though there was an earth-shattering plague risking all of their lives.  They love me, dearly.

VICE-ADMIRAL MITCHAM:  Um, they kept coming because Vivian told them it was business as usual and they had to.


EMPRESS OGG:  Calm down, Vivian.  We are all friends here.  He is not Murray Newman.  Only a malcontent like him could ever say anything bad about you.

VICE-ADMIRAL MITCHAM:  Well, Murray and anyone who ever watched an episode of Sisters In Law.

EMPRESS OGG:  And that's like, what?  Thirty people?  Obviously I never even watched it myself, Vivian.  That's why I hired you.


EMPRESS OGG:  Calm down, Vivian.  You did stop calling Murray and yelling at him during business hours like you promised me right?

CHIEF KING:  Yes, Empress.  Now, I only call him and ask him to verify his Google Listing.

VICE-ADMIRAL MITCHAM:  Why would you harass him like that?



EMPRESS OGG:  Anyway, as I was saying, the Jawas are ecstatic about my re-election and that's what makes them ignore all of the incredibly serious warnings from the WHO and the CDC about social distancing.

VICE-ADMIRAL MITCHAM:  I should probably point out that you still have a general election in November, Empress.


CHIEF KING:  Empress, can I have his job now?



JAR JAR ROGERS:  Oosa oosa Empress Ogg!  Yoosa needsa to get into the bacta tank rightsa nowsa!

EMPRESS OGG:  What is it, Jar Jar?

JAR JAR ROGERS:  There's a beena exposure of mooey mooey bad coronavirus at the jail!

YVONNE VENTRESS:  I'll send out an e-mail and tell the Sheriff to evacuate the jail and bring them all to 500 Jefferson immediately.


CHIEF/VICE-ADMIRAL KING:  That sounds like a great plan.  Business as usual, as I always say.

EMPRESS OGG:  Peace out, people!  I'm heading to the bacta tank!  Let me know when the crisis is over!

BOBA CLAPPART:  What about your podium?

EMPRESS OGG:  There's no time!  Give it to Vivian!  She's in charge now!  Best of luck, everyone!



BOBA CLAPPART:  Yes ma'am?

ACTING EMPRESS KING:  Put New Tom Berg in the carbon freezing chamber.  He can wait there until Empress Ogg comes out of the bacta tank.

BOBA CLAPPART grabs VICE-ADMIRAL MITCHAM by the arm and begins to lead him out.

ACTING EMPRESS KING:  It is now time to execute Order 66.  At last, we will reveal our full power to the Jawas.

COUNT MUSICK:  You mean the Jedi?

ACTING EMPRESS KING:  No, the Jawas.  We can't really do anything to the Jedi, but I can be mean as hell to the Jawas.  I'm the Mama Bear, dammit and I'm Board Certified.  Now, somebody bring me some of that espresso from my high dollar R2-D2 coffee maker . . .


Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Thursday, March 19, 2020

The Changing Shape of Things -- Part Two: Exposure at the CJC

I've heard from multiple people this morning of a potential COVID-19 exposure to the Harris County Criminal Justice Center.  An e-mail went out from Ed Wells, the Court Manager, at 7:25 a.m., notifying people that a prosecutor in County Court at Law #1 had been exposed to a family member that had tested positive for the virus and presumably had then come to work.

Court #1 is on the 8th floor of the CJC, so the response was to recommend shutting down all courts on the 8th Floor.

Now, you can call me overly critical, but I'm not real sure what closing down the 8th floor does.  I'm going to guess the prosecutor didn't walk up the stairs to the 8th floor.  I'm sure he or she took the elevator with a group of other people.  I'm sure he or she came in the front door and walked through the lobby to get there too.  Closing down the 8th floor at this point does about as much good as putting a Band-Aid on a gunshot wound.

Stunningly, the e-mail points out that the recipient of the e-mail the District Attorney's Office because they may need the space at Jefferson (the current District Attorney's Office) sanitized.


You mean, you may want to check to see about sanitizing the area where the possibly infected prosecutor worked alongside a few hundred of his or her fellow employees?  Those employees that may have spent more time around that prosecutor after court because good old Kim Ogg and Vivian "Business As Usual" King wouldn't let non-essential prosecutors work from home.

It has been reported that they now have a guy in a HAZMAT suit of some sort checking people's temperature as they enter the CJC this morning.  

Did it occur to them that what they should be doing is letting the people trying to come into the building know about the potential exposure?  The idea of taking folks' temperature when they come in is to prevent COVID-19 from coming into the building.  Ed Wells' e-mail indicates that it is possibly already there.   

They are warning the wrong damn people.

I want it to sink in that the prosecutor who may have potentially exposed the populous of the CJC to  COVID-19 is a misdemeanor prosecutor.  A misdemeanor prosecutor handling the lowest level of crimes.  The vast majority of the misdemeanor courts aren't even holding dockets.  Arguably, he or she should have been one of the first people told that they could work from home.  If that had happened, maybe the CJC wouldn't be going through this.

Yet Kim Ogg and Vivian "Business as Usual" King still steadfastly refused to make any arrangements for the Office that allowed its employees to distance themselves from each other, protecting their own health and the health of their families.  

On a related note, has anyone heard anything from Kim Ogg directly lately?  All of the information coming from the Office seems to be coming from King, JoAnne Musick, and Jim Leitner.  Has Press Conference Kim suddenly become camera shy?

All of this is absolutely infuriating.  While the rest of the world, the rest of the country, the rest of the State and County, took drastic measures to slow the spread of COVID-19, the Harris County District Attorney's Office's only response was to put hand sanitizer on backorder and literally, tell the employees that it was "business as usual."  

I mean, the Ogg Administration established very early on that it didn't care much about or for its employees, but this has jumped over into a lack of concern about the general public.  

The fact that this is happening is inexcusable.

Tuesday, March 17, 2020

The Changing Shape of Things - Part One

Many things have changed in the six days since my last post about the COVID-19 Coronavirus and the Harris County Criminal Justice Center.  I'm guessing that this update about the state of things will probably be the first of many as things continue to adapt to what is going on in the world.

1.  The vast majority of Judges are waiving court appearances for bond clients in most Instances. I'm not 100% sure that all judges are following this rule, but every judge that I'm currently dealing with is doing everything that he or she can to keep people out of the courtroom.  I have not heard of any judges that are not following this plan, but I can't swear that all of them are. Appearances are being waived and electronic resets are being encouraged.  The only exception that I've seen on this is first appearances for clients that have just bonded out of jail. 

2.  Judges are working to get non-violent offenders out of custody if possible.  Defense attorneys should be doing the same.  I know of at least one District Court Judge that went through the cases pending in his court and reviewing which ones he could grant personal recognizance bonds without risking public safety.  He did this sua sponte, but defense attorneys should be doing the same.  I've been going through all of my clients's cases that I can make an argument for a bond reduction or a PR bond for and filing Motions to Reduce Bond.  As a side note, I will again point out that accepting collect phone calls from your clients is a fantastic way to communicate on these types of issues.  Check out if you want to set it up.  It isn't expensive and it is totally worth it.

3.  Speaking of e-filing . . .  A week or so ago, Harris County District Clerk Marilyn Burgess rolled out a fresh new design for her office's website.  It must have been designed by a colorblind individual.  Things that were once easy to find are now against backdrops that make the tabs more difficult to see than the hidden images in those 3-D posters that used to be popular 20 years ago.  Today, as attorneys are trying to access the District Clerk's website so they can work remotely, the site is alternating between working at a snail's pace or not at all.   Burgess is really going to need to get that together quickly to keep things working.

4.  The CJC is more or less a Ghost Town.   I drove in yesterday to approach judges about bond issues on two cases yesterday and it was kind of spooky.  From the sign at the garage that proclaimed jury service was canceled to the mostly empty elevator banks, it felts like entering the opening scenes of a zombie movie.  There were only a handful of bond defendants in the courthouse and they were quickly given resets and sent home.  Judge and court staff were asking people to keep their distance from each other and the bench.  I made the mistake of coughing once (it was allergies, don't freak out) and was immediately maced with Lysol by a court coordinator who shall remain nameless.  There was definitely a strong feeling that we shouldn't be up there.

5.  Teleconferencing is the new Bench Conference.  As I mentioned above, I filed a couple of Motions to Reduce Bond on some of my clients, and I'm going through all of my pending cases to see if there are more I can do.  I e-filed them (through the State's service, not the District Clerk), served the prosecutor with e-service, and e-mailed the coordinator to notify her.  About an hour later, the Judge called me and we had a teleconference.  The prosecutor was in court and I was on speakerphone.  It went pretty smoothly for a first attempt.

6.  Speaking of the prosecutor being in the courtroom . . . Since I was supposed to be out of town this week and then on Spring Break, I was calling in from out of town when I presented my Motion to the Court telephonically.  The prosecutor, however, was physically present in the courtroom.   Again, I will point out to Harris County District Attorney Kim Ogg, that this wasn't necessary.  The prosecutor could have phoned or conferenced in by Internet just as easily as I did.  Thus far, Kim Ogg's only concession for her employees is relaxing the dress code.  That's pathetic. 

7.  Speaking of poor crisis management by the District Attorney's Office, I had the most entertaining conversation with 1st Assistant/Chief of Staff/Minister of Propaganda Vivian King last week!  So, here's a funny story.  Last week, in response to Jim Leitner citing Vivian King's approval of an e-mail he was sending to the Office, I made the following Tweet:

Now, I said this with a keen awareness of numerous moments of mismanagement and out of line priorities exhibited by La Viv over the course of her tenure with the Ogg Administration.  From holding onto some Federal defense cases after taking her oath as a prosecutor to handling a little family law matter for a criminal court judge (that in my opinion created a potential conflict of interest for the Office) to expensive espresso machines on the public dime to failing to recuse the Office on a case that she had a vested personal interest in, the past few years have changed my opinion of Vivian for the worse.  I have a great many things that I could add to that list, but I won't at the moment.

So, after sending this Tweet, I was not all that surprised to see Vivian on my Caller ID on Friday, calling to express her fury.  

She started by cryptically letting me know that "someone" had told her that I had said she was the last person who should be handling a crisis.  Dammit, the Twitterverse is apparently not the secret-keeping vault that I thought it was.  I told her that she really should be focusing on managing the Office's response to the coronavirus rather than calling her critics on county time, to which she yelled "YOU DON'T KNOW WHAT TIME I TAKE MY LUNCH HOUR!"

She threatened to sue me, to which I replied that my opinion of her was not libel.

She threatened to file a grievance against me for criticizing her, to which I replied that I was criticizing her as an administrator, not as a lawyer.

She told me that I was just seeking publicity, to which I didn't think that her ill-fated stint on Sisters-In-Law would really get me that much attention.

She demanded to know who had told me bad things about her, to which I told her I wouldn't be feeding information to the "most paranoid, mean, and not-that-bright administration in the Office's history."

She finally just defaulted into yelling that she was Board Certified in Criminal Law and called me a racist for saying anything negative about her on Twitter.  She also accused me of "damaging the community," whatever that means!  It was a very volatile 11 minutes.

And in the end, it didn't change my opinion any.  Now, more than ever, I remain of the opinion that Vivian King is the last person who should be making these decisions.

8.  In all seriousness, outside of the District Attorney's Office upper administration, the Harris County Criminal Justice community is pulling together.  From defense attorneys doing whatever they can to keep their clients informed to the judges trying to make sure that Due Process is still happening to the rank-and-file prosecutors dutifully responding to e-mails and showing up for court, people are still working around the clock to keep the Justice System running.  

As a side note, if you are otherwise unaware, the Harris County Criminal Lawyers Association (in a project being handled by the amazing Christina Appelt) is keeping a running list of all the relevant information regarding courthouse closings and other constantly changing rules at this website that is available to the general public.  That's a huge undertaking and Christina is owed a big "thank you!" for handling it.

I hope everyone is safe out there and that you and your families are corona-free.  I'll talk to you soon.

Wednesday, March 11, 2020

Court In a Time of Corona

With the City of Houston's decision to shut down the Houston Livestock Show and Rodeo today, I think it hit home for most of us that the threat of coronavirus is truly going to be a lifestyle changer for days, weeks, and months to come.  It was one thing to see the stories on the news about festivals and events getting canceled.  Even hearing about South by Southwest getting canceled in Austin didn't really register for many of us.

But, canceling the freaking rodeo?  Shit just got real.

I've been worrying about coronavirus for weeks now; however, I also vividly remember being worried about SARS, Ebola, and swine flu.  Since none of those things ever hit Houston, I was kind of holding out hope that the same would happen with corona.  However, no such luck.

It looks like the Houston Independent School District is trying to just get through the next two days before reassessing its response during next week's Spring Break.

In the meantime, with two exceptions, the Harris County Criminal Justice Center appears to be open for business as always.  The first of those exceptions came from 232nd District Court Judge Josh Hill, who issued the following statement:
My policy for the 232nd always stands, regardless of what the other courts do.  If anyone believes their health or safety would be compromised by trying to get to court, stay home and make some attempt to contact the court to reschedule as soon as practical.  Any lawyer on any case can always request an off docket reset or to waive a client's appearance, regardless of health or safety scares.
Judge Hill is a good egg.  Similarly, County Court at Law # 8 Judge Franklin Bynum took time out of his busy schedule of fighting with HPD Chief Art Acevedo on Twitter to issue this statement:

Other than these two judges, there doesn't appear to be much reaction from the rest of the Harris County Criminal Justice World yet, which is pretty damn ridiculous considering that it has become clear that we are in a time where drastic measures need to be taken.

So, here are a couple of my random amateur epidemiologist opinions on what should be done:

1.  Follow Judge Bynum's lead and waive all bond appearancesPeriod.  
Much like the Rodeo, the Harris County Criminal Justice System pulls in thousands of people from all over the area and brings them into cramped conditions of wall-to-wall people,  Given how easily communicable coronavirus is, this is just begging for trouble.  Until the worst of this epidemic passes, there is absolutely no reason to put a higher value on managing docket numbers than human safety.

2.  Reschedule all jury trials for two months.  It is my understanding that Fort Bend County has canceled jury panel through the end of March.  If they can do it, so can Harris County.  Pretend like we got hit by Hurricane Corona.  We will get back online eventually.  It isn't ideal, but we will get through it.

3.  Give every inmate in the Harris County Jail on a non-violent offense a PR bond.  Yeah, nobody on the police/prosecution side is going to like this idea, I get it.  But once the coronavirus hits the jail, it will spread like wildfire.  Subjecting anyone to that as a sitting duck trapped in a cage is horrible to contemplate, but it becomes even more horrible if someone is sitting there on a drug charge or a theft charge.  

4.  Let non-essential employees work from home, especially those with compromised health issues. In our Internet age, we are more capable than ever to work from home with our online resources.  Read offense reports.  Watch statements.  Watch body cams.  Do some legal research.  Catch up on e-mails.   I can guarantee you that is what I plan on doing in the weeks to come.  It is ridiculous not to take advantage of that for government employees who can do the exact same thing.  I'm still laughing at Vivian King's memo today that she had ordered some hand sanitizer for the Office but that it is on backorder for eight weeks.  Good old Vivian is awesome in crisis.


5.  Pay appointed attorneys for their work when it is done instead of when the case is resolved.  I posted on this topic last year in this post when I encouraged the policy to help prevent attorneys from taking on too many cases.  If an attorney can work from his or her office or home on a case and get paid on a weekly basis, it is a win-win situation for all involved.  There will be more work done on cases.  Attorneys will keep a more manageable caseload.  Things can be effectively resolved without pointless appearances in court.  They stay safe at home.  Work gets done on cases.  They don't go bankrupt.  It will be great.

6.  Defense Attorneys should start taking collect phone calls from their clients.  Pat McCann gave me this piece of advice when I became a defense attorney.  I take collect calls from my clients.  I caution them about talking about anything that would be damning on their case because I don't trust that nobody is listening, but I can answer legal questions until the cows come home.   I don't do jail visits very often, but I'll take multiple phone calls a day from clients, and that makes them happy.   I'm near my computer when they call, so I can look up answers to their questions.  Make notes on what they are telling me and most importantly -- not pick up a disease at the jail.  

Those are just a few of my thoughts.  I'd like to hear your thoughts, too, so comment away.

At this point, I'm in disbelief that we've canceled the Rodeo but we've made no apparent plan for the Criminal Justice World in Harris County.  They also just canceled the NBA season.

I don't understand why the Courts are acting as if it is still business as normal.

Wednesday, March 4, 2020

2020 Primary Takeaways

The 2020 Democratic Primaries have now come and gone and as always, there is much to talk about.  There were some predictable moments and some surprises.  Some races told us who will be holding office in January, while others will still need to be decided in November.  Outside of the obvious results from last night, there were some other, more subtle takeaways to notice.

1.  The Party Turnout Differential-- I'm probably looking in the wrong place, but I can't find a source for the exact number of voters in the respective primaries.  However, I can see that 321,903 people voted in the Democratic Primary presidential race compared to 192,985 voting in the Republican Primary presidential race.  That approximately 129,000 vote difference could be partially explained by the fact that the Dem presidential race is contested while the Republican race is not.  However, it can't feel too reassuring to those Republican candidates on the ballot.

2.  The Houston Police Officers Union is a pretty influential group. Political newcomer Mary Nan Huffman avoided a runoff in a three-person race and she did so by a large margin.  Unlike the other two candidates, Lori Deangelo and Lloyd Oliver, Huffman isn't a Harris County CJC regular, either.  Her past experience was in the Montgomery County District Attorney's Office, followed by her stint as the HPOU's attorney.  Huffman was definitely the HPOU's candidate and she did quite well with her 63.5% of the vote.  It will be interesting to see how that translates in the general election.  I'm going to go out on a limb and predict that HPOU has significantly more influence on the Republican side than it does on the Dem side.

3.  Sexism is alive and well in the Republican Party... at least as it applies to the District Attorney's race.  Legal Disaster Lloyd Oliver won 35,728 votes which scored him a second-place finish over a seasoned former prosecutor and defense attorney.  That's about 35,728 more votes than Lloyd deserved.  He literally has no redeeming qualities that would earn him a single vote.  He's homophobic, sexist, kinda racist, and not all that bright.  The only reason I can possibly think of for that many people voting for Lloyd in the primary is that he was the only male on the ballot.

4.  The Progressive Movement isn't quite as powerful as its advocates believe. Three of the Democratic candidates for District Attorney (Kim Ogg, Audia Jones and Carvana Cloud) heavily campaigned on who was the most progressive candidate.  Jones earned the endorsement of several prominent Progressive groups, even the endorsement of Bernie Sanders, himself.  However, it didn't end up doing her that much good.  She got less than half (65,734) of the votes that Kim Ogg received (147,855).  Anybody that believes that the Progressive Movement is what gave Kim Ogg the Office in 2016 is silly -- it was simple Trump backlash.  It probably will be again in November.

5.  Old School Cronyism is Key to Primary Victory.  Speaking of our incumbent District Attorney, despite her first term in Office being beset with multiple controversies, she still managed to win and avoid a runoff, which is not an easy feat in a four-person race.  Ogg is an old school Democrat, like her father before her.  She had strong party ties that went back to before Audia Jones was even born.  She used positions in her Office to hire "community outreach" employees who, coincidentally, were old school Dems, too.  She had no problem receiving endorsement after endorsement from other Old School Dems, most of whom have little to no involvement in the Criminal Justice World.  It worked out well for her.

Photoshop courtesy of Luke Newman

6.  A Wild Batch of Judicial Races did not go well for the Men.  Incumbents won.  Incumbents lost.  A four-person race had a winner who dodged a runoff while a three-person race didn't.  There didn't seem to be a very strong pattern that weaved through all the races, except for one:  all the male candidates lost.  Whether it was challenger Bryan Acklin's loss to incumbent Judge Nikita Harmon or incumbents Randy Roll and George Powell losing to Ana Martinez and Natalia "Nata" Cornelio.  Colleen Gaido beat the three guys running against her and did it so convincingly that she avoided a runoff.  The only race going to a runoff is between Te'iva Bell and Candace White -- the one male in the race, Dennis Powell, came in third place.  Crazy!

So, once again the morning after an election is a mixed bag of good and bad, but the most tragic, yet uplifting story of yesterday was . . .

7.  The Voters Who Would Not Be Denied. Through a series of unfortunate events there were insane delays for voters at the end of the day yesterday.  Those in line at 7 p.m. got to vote, and some of those late arrivals ended up waiting for hours before they finally had the opportunity to cast their ballot.  The Hero of the Day Award goes to Hervis Rogers who waited for seven hours to cast his vote.  He shouldn't have had to, but he did.  

That's a man who knows the Power of the Ballot and he puts anyone who found it "too inconvenient" to get to the polls to shame.  

Everyone should value their vote as much.

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 ...