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.


JimVAT said...

You are absolutely correct about the Arkema case. It was all for show and based upon politics.

As a 25+ year veteran in the chemical industry, I can tell you that these sorts of cases are rarely, if ever, criminally prosecuted, even when there are serious injuries or deaths. Even in the cases of massive environmental releases, criminal prosecutions are rare if unheard of.

Great inside baseball account!

Anonymous said...

This is Arkema's fault, and any suggestion otherwise is moronic. They made a decision not to make campaign contributions or host fundraisers or block walk for Queen Kim, and they now must live with the consequences of those failures.

Anonymous said...

HCSO Deputy indicted in Denny’s choking case was similar Ogg BS. Unpopular Defendant indicted on unmakable case for PR and to throw red meat to Kim’s voters. Dismissed on the Friday afternoon before trial with Berg pathetically trying to claim the high ethical standards of the office compelled the nolle.

Thorhees21 said...

Well said Murray. Ogg is a far, far cry from the integrity seen in the Johnny Holmes or Carrol Vance administrations.

Anonymous said...

and she does not get the credit she deserves nationwide, for dismissing charges against all those protesters.

Just like law enforcement agencies can be investigated by the State of Texas, can DA Offices be investigated by the State?

Anonymous said...

This case should have never been filed in the first place. This man was protecting his family. This was not a high school fight. This was involving a intoxicated person whom, if had been let go, could have easily retrieved a weapon causing the outcome of this interact to be totally different. For all you snowflakes out there the first rule of fighting is you never let someone up once you have them pinned down. Bad things happen in a fight when you give up your advantage.

Anonymous said...

Kim is an example of what the Biden/Harris ticket has to offer. Regardless if you get your feelings hurt by a tweet...most can agree this pandering to an angry population is not justice, it is evil.

Anonymous said...

You know he was convicted of murder right? You don’t get to choke an unarmed man to death for public urination.

Anonymous said...

Wtf does a bad local da have to do with national politics? Gtfo with that stupidity. By that logic every Republican in the nation needs to go based on Trump’s incompetence.

Anonymous said...

Ogg didn't know it then but she never needed that case to be re-elected. Nationwide, democrat voters far outnumber those who vote republican, always have, always will. The only thing that prevents an entirely blue country is that democrats aren't as diligent about exercising their civic obligation to vote as republican voters are.

Democrats didn't like Hillary no more than republicans, she offered nothing new, just a Clinton Presidency Act II. Plus the FBI director sent a letter to Congress announcing the reopening of the email probe on Oct. 28, 2016, a mere 11 days before the election. This culmination allowed a Trump presidency. Nothing more, nothing less. Fact.

Democrat voters must be energized for them all to drop what they're doing and head to the polls and in all my 70+ years I've never witnessed them so eager to vote. Add this to the fact that there are a record number of registered republicans who will vote for democrats, many for the first time in their lives, and we will see a massive turnover in every county in the country.

Get ready for another four years of blogging about how corrupt Ogg is, she's here to stay. Guaranteed.

Anonymous said...

Trump is going to win. Ogg is going to win as well.

Anonymous said...

This post and the comments really put on display the strengths and the unfortunate built in limits of this blog. While many would like to tie what goes on here to national politics,
the fact is that the subject matter of this blog is dedicated to discussing narrow local squabbles that occur within an astonishingly small geographic area. Grits really does have a wider scope making it more and less interesting at the same time, depending on where you live.

Now I don't think it's a bad idea to narrow down your topic, but I do wonder what is the reason Murray does seem to focus on the DA's office (Ogg especially, but justifiably). And his criticism can be pretty harsh if he feels it's not being run right. Now I don't think this criticism is necessarily surprising given the fact Murray got fired from the DA's office for speaking his mind. Now that he is a defense attorney, it doesn't surprise
me again that he should publicly criticize his adversary. What would surprise me if he criticized sitting judges for the bad rulings we know they make. Now Murray doesn't really
update us on the day to day of bad stuff judges do the way he stays on top of Ogg. It's not that Murray is too naive to know the bad judges. And I think that shows how ensconced Murray must be because he knows his reputation, his finances, and the outcome of his client's case depend on pleasing these judges who are probably reading this too. And the judges are reading the comments. But it cannot have hardly escaped Murray the present situation of the bench in Harris County deserves a mention here and there. Has Murray really been freed to speak his mind, after all?

Murray Newman said...

Anon 8:33 p.m.,

Your comments are thoughtful and fair. I'll clarify a few things and I will respond to some things as well.

1. I do focus on the D.A.'s Office for the majority of what I write for a couple of reasons. The primary one being that because I worked there for 9 years, I feel comfortable in making my observations about policies that do or do not work or leadership that does or does not work.

2. Yes, I was fired by the D.A.'s Office at the end of 2008 by Ken Magidson, who was acting on behalf of Pat Lykos. I still have a great fondness for the time I spent in the Office. I was glad when Mike Anderson won. I was disappointed in some of the things that Devon did, and I supported Kim in the last election. She's been a huge disappointment, but I have both complimented her and criticized her. Neither of those things are inspired by the fact that I got fired by a completely different person 12 years ago.

3. By definition, the District Attorney's Office is my adversary since I'm a defense attorney. I can criticize them as I would any opponent. I can also compliment them when I think they are doing something good. And I have done so. I've also criticized and complimented other agencies such as the police, District Clerk (a lot), the County Attorney's Office, the Governor, the President, the Houston Chronicle, and I'm really getting close to a scathing piece on my Homeowner's Association Facebook Administrator. If I make them mad, they can take it out on me (or try to). We weren't aligned in the first place. Does that make sense?

4. In regards to whether or not I criticize judges, you are correct that it is a trickier situation, because judges aren't adversaries to my clients (at least they aren't supposed to be). I also have to make sure that what I spout off about on the blog doesn't negatively affect my clients (both present and future). So, yes, I do have to be more reserved about what I say. I also have to follow the rules of ethics. Also, I don't use this blog to try to influence any of my cases. I've talked about some of my cases here and there, but I've never gone on to say "Judge Morton totally screwed my client today with a really stupid ruling" or anything along those lines. I don't think that's appropriate.

I usually reserve what I'm going to say about an individual judge when I do my election overviews. I admit that sometimes that isn't easy. Especially if I personally like a judge but they are in hot water (i.e., Judge McSpadden in the 2018 election). The judges that I appear in front of usually don't make me mad, though. At least not to the degree that I think that they are being unfair to my clients. The courts that I routinely get appointments in are pretty pleasant places to work, or I wouldn't accept those appointments.

The point being is that there isn't that much "bad stuff" about judges to write about. At least not at the moment. And when some bad things happen, I also Tweet about it or put it on Facebook.

If you have story ideas that you think I should write about that I'm missing (either intentionally or unintentionally), let me know.

Anonymous said...

I don't want to be taken to question what I believe to be the honest intentions of the author, nor do I believe that I could inform him of a better topic to write about. I'm confident that the fertility of the author's mind could bear fruit upon the general subject I've suggested. But how I could I suggest to Murray to write about my experiences, rather than his own? Of course I'm leaving a comment so I do want to impress my points on the discussion, but I wouldn't take away what makes this blog what it is. I also don't think the author carries a grudge against the DA's office as an institution and that is the source of the emphasis on the DA's office. That would be truly silly, and I don't suspect Murray of that. You will notice that Murray has risked offending an anonymous critic in the pursuit of truth. And I'm suggesting that if there is some ethical principle which purports to limit discussion in the pursuit of truth, that principle is worth abandoning.

Anonymous said...

Sorry, I'm a little late to the game. But I just read this.

I'm sorry Murray but did you actually say, "The point being is that there isn't that much "bad stuff" about judges to write about. At least not at the moment. And when some bad things happen, I also Tweet about it or put it on Facebook."

The topic of conversation was HARRIS COUNTY Judges, right?

Bail/bond issues. Letting murderers go free. Pay to play issues. Bribery. Ethical issues.

"Not much 'bad stuff' about judges to write about???


Murray Newman said...

Anon January 24,

You are definitely late to the game. I see these comments because I moderate them, but I don't know if other readers will loop back to them.

That being said, I stand by my statement from when I first wrote this post. I was going to write a lengthy response to this, but I think I may write a new blog post to renew the conversation, instead. I've been looking for something to write about and have been having a bit of writer's block. You've given me an idea to write about. Thanks!

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