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 ...