Tuesday, December 15, 2020

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

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

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

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

CORPORAL LEITNER:  Very good, sir.

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

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

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

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

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

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

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

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


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

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

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



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

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

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

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


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

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

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

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

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

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

JAR JAR:  That's a mooey long title!

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

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

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


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

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

COVAD KING:  So what?  So did the Empress.

EMPRESS OGG:  No I didn't!

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

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

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

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

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

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

EMPRESS OGG:  You betcha.

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

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


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

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

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

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

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

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

EMPRESS OGG:  Are there any questions, Cad Dane?

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

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

CORPORAL LEITNER:  Did she say "murder?"



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

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

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

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

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

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


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

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

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

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

EMPRESS OGG:  The what, now?

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

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


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

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

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

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

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


Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Episode Five: The Empress Strikes Out 

Sunday, December 13, 2020

Learning the Difference

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

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

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

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

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

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

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

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

Take a moment to fully appreciate that.  

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

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

The System is collapsing under its own weight.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They are appreciated far more than they will ever know.

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

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

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

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

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

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

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 ...