Wednesday, June 30, 2021

The "Genius and Miraculous" District Attorneys' Office

Oh man.  

Kimbra.  

Just when I think she can't be a more shamelessly self-aggrandizing politician, she pulls something new out of her little white Boss Ogg hat.



Today, she released a pre-recorded message to her Assistant District Attorneys that was chock full of pure political awesomeness as she laid out her plans for solving the backlog of criminal cases in Harris County, Texas.  At one point, she literally applauds the work of her office as "nothing short of genius and miracles."

Seriously.

If you would like to watch it in its entirety, here it is.


NOTE:  If you are reading this on an iPhone, the video may not play, but you can get to it by clicking here.

If you don't have thirty minutes to enjoy Kim Ogg celebrating herself, here are some of the highlights:

Highlight # 1 --  Even a Pre-Recorded Kim Ogg keeps the Commoners Waiting

Even though everyone is back in the building after receiving their vaccinations, Kimbra decided that she would best reach the members of the Office with a video message rather than a general assembly.  That makes sense.  After all, the rank and file is busy trying to work on that case backlog and who has time for an afternoon meeting, when a pre-recorded video can more efficiently get the message out, right?

But this mandatory pre-recorded meeting goes on for over TEN FREAKING MINUTES before Kim takes the stage with her campaign motivational, rally-the-troops speech.  It's a freaking PRE-RECORDED MESSAGE.  Seriously?  Y'all don't know how to, like, trim out the first ten minutes with iMovie or something?

It's moments like these that I'm so glad that I'm not at the office anymore.  If your name ain't Mick Jagger, I'm not waiting on your ass to take the stage.

Highlight # 2 -- Move over Chris Pratt, the Guardians of Justice are Here

Approximately two minutes after Madonna has taken the stage Ogg begins speaking, she immediately begins addressing the difficulties facing her Office.  And, of course, that starts with blasting the Defense Bar.

At the 12 minute, 12 second mark (she started talking at the 10:14 mark), she begins with throwing insults at the Defense Bar:
. . . unlike the DEFENSE BAR, whose only duty is to THEIR CLIENTS . . . GUILTY OR NOT! . . . prosecutors are tasked under the law with protecting everyone's rights, in our search for the truth in every single case.

And then she finishes with . . . .wait for it . . . 

. . . And that's why I call us the Guardians of Justice!

Photo created by Luke Newman

 Gag.


Highlight # 3 -- Blame the Judges and their Low Bonds

So, apparently, the real masterminds behind the "Crime Wave" affecting Harris County are those damn judges who are letting everyone out of jail.  At the 13:30 mark, almost a full minute after blasting the Defense Bar, Star Lord Kimbra goes after the Judiciary.

While we know that 55 hundred violent offenders are in jail awaiting trial [TRANSLATION:  "waiting on discovery"], tens of thousands more are out on bail.  At least four thousand of them are repeat and violent high-risk offenders on ankle monitors.  Let's get them to trial!

Seriously, go back and watch how Kim sounds like a high school cheerleader when she exclaims that "Let's get them to trial!" part.  It's plain silliness.  Like she just came up with that idea and is suddenly yelling "Go team! Go!"

But wait, there's more.

She takes a potshot at Pre-Trial as she continues to levy the blame for the carnage and maiming (yes, maiming) affecting Houston on these damn low bonds.

We've seen defendants commit crimes even while wearing ankle monitors and we know that we're rarely notified. It's these repeat and violent offenders, freed on insufficient bail, who are contributing to the crime wave that's killing, injuring, maiming Houstonians.


Highlight # 4 -- the Emergency Case Backlog Reduction Program

Once done blaming everyone but herself (and also, strangely, Covid) for the backlog, Kim gets down to business by rolling out her new idea called the Emergency Case Backlog Reduction Program. 

This new and innovative program authorizes overtime and extra pay for prosecutors to examine cases and determine whether or not they are serious or violent offenses.  If they are not, offer Diversion Programs that help move less serious cases.  

What a fantastic idea.  Wish I had thought of it.  Better yet, I wish she had implemented it at, you know, like at the START of the pandemic.


Although I'm all for prosecutors reviewing bullshit less serious cases, her "program" seems to be like a bit of overkill to me.  Overtime to evaluate cases?  Here's a novel idea -- how about asking prosecutors to hear out defense attorneys in court when they point out that a case is either weak or not serious, instead?  It's really not all that complicated.  

As my mentor, the late, great Ed Ziegler once said:  "We're pole vaulting over mouse turds, here."

Instead of yet another Ogg Program, how about just returning some discretion to the trial bureau so that your rank and file prosecutors aren't scared of getting fired if they dismiss a case or offer a pre-trial diversion?  Just a thought.  

My favorite part of her diversionary program is the warning she gives at the end:
The defense needs to respond.  After all, it's in their clients' best interest.

Um, yeah.  The first time I let a grandstanding-ass-politician like Kim Ogg tell me what's in my client's best interest is the day I need to hang up my law license. 

Diversion programs are very nice resolutions to the cases the State can actually prove, but if Kim thinks attorneys are going to be flocking to those programs without evaluating the cases against their clients first, she's really banking on a large batch of ineffective defense attorneys.  Diversion Programs are not a substitute to fighting a bad case, just fyi.  In addition to having the tool of a diversion program, Kim needs to make sure that her prosecutors know that they can dump a piece of crap case without repercussions, as well.

Highlight # 5 -- Experience Matters, if there is any of it left

Kim then moves on to those serious and violent cases that won't be eligible for a diversion program, and she calls upon "our most experienced chief prosecutors, now serving in vertical and specialized prosecution units" to help the newer prosecutors try serious cases.
Take charge, Senior Prosecutors.  Help us make this program work!

There is no doubt that experience matters and Kim is right to call upon the senior prosecutors to help combat violent crime.  There's just one small problem with that...

She's fired or otherwise run off the vast majority of them. 

Whether it be the thirty-odd prosecutors she fired before even taking office, or the ten or so chief prosecutors that she ran off during her absolutely idiotic Pandemic Witch Hunt last year, experience is in extremely short supply at the D.A.'s Office these days.  The definition of a "senior prosecutor" has never been looser in the history of the Office.

She's 100% correct in saying that senior prosecutors are needed during this time of crisis.  Unfortunately for all involved, there just aren't very many left.

She closes this ridiculous speech by giving a motivational rallying cry:
Team, we have a big job ahead of us, but the STATE is ready!

Those of us who practice in the CJC know that under Kim Ogg's leadership, nothing could be further from the truth. 

Saturday, June 12, 2021

The New Normal and the Days of DISCO?

I think that it's fair to say that those of us who practice criminal law down at the Harris County Criminal Justice Center on a regular basis are starting to sense a movement towards a return to normalcy these days.  There's an underlying feeling that's similar to riding on an airplane as it begins its initial descent towards the destination or seeing the rain starting to lighten up at the end of a long thunderstorm.  

As more and more people get their vaccines and the number of Covid cases continues to drop, we all have a sense that it is time to get back to business as usual, or at least some semblance of it.  Those of us who have been sitting at our desks and couches, fighting the good fight from the comfort of our homes or offices, will seen be trying to squeeze back into our pre-pandemic courtroom attire and actually traveling down to the CJC again on a routine basis.  For many of us, our in-person appearances are already rising in frequency, and appearing in the rickety old building no longer feels like the dangerous stealth mission into Chernobyl like it felt a year ago.

In many ways, that's a definite positive.  If I never have to go over plea paperwork with a client over the phone again, that will suit me just fine.  Arguing a motion or questioning a witness without having to deal with the staccato in and out of Zoom audio feels like a very exciting benefit that I didn't realize how much I would miss.  Having people ask me how I'm liking working for Cheryl is much funnier in person than over Zoom, and dammit, the best thing by far about going back is seeing our courthouse family again.

But there are several things that we adapted to during the pandemic that are absolutely worth holding onto, even if they are no longer part of a mandatory safety protocol.  We have learned some lessons over the past year or so about what is necessary and what may be not-so-necessary to keep the Criminal Justice World spinning on its axis.  All of it has to be balanced against a stupefyingly tremendous backlog of cases that have accumulated over the pandemic that is going to take years to sort through.  Unlike the aforementioned plane ride or thunderstorm, we are nearing the end of the equivalent of a yearlong hurricane that has left an incomprehensible amount of damage in its wake.

There will have to be a new normal for how we handle cases, and I'm hopeful that the new normal embraces some of the more positive aspects of how we adapted under Covid -- specifically when it comes to Zoom appearances and mandatory in-person appearances for Defendants.

Judges Natalia Cornelio of the 351st District Court and Abigail Anastasio of the 184th District Court have been doing research into the pros and cons and the role of Zoom as things get back to "normal."  They were kind enough to listen to my ideas, and I thought I would share them here on the blog as well.  Let me know what you think.

Prior to the pandemic, it was standard practice in the vast majority of courts that all Defendants charged with crimes personally appeared for every court date they had scheduled.   These settings were, on average, once a month and more often than not involved nothing more than the Defendant signing a reset promising to appear at the next setting.  The settings, especially on the newer cases, were generally pointless because discovery evidence (which prosecutors are required to provide to the defense attorney) wasn't ready yet.  

Without the evidence being available, no meaningful conversation could be had between a prosecutor and a defense attorney and, subsequently, between a defense attorney and his or her client.  The client's presence in the courtroom (and the already overcrowded Criminal Justice Center) was completely unnecessary -- and often counterproductive.  Defendants (who were sometimes required to maintain employment as a condition of remaining on bond) had to take off work, fight the crowds coming into Downtown and into the building, and sit there for a couple of hours waiting for their attorney to arrive.  All of this so that they could sign a reset promising to do the same thing again in a month.

Under the pandemic, all of the courts waived in-person appearances unless there was something that fundamentally required the Defendant's presence.  If a Defendant needed to acknowledge and sign bond conditions, for instance, he or she may have been required to appear.  If the Defendant was alleged to have a violation of a bond condition or needed to be present for a hearing on his or her case, it was understandably necessary for that Defendant to show up in court.

But all of those monthly status checks no longer required the Defendant to show up.  The result was a significantly less crowded building and there is no reason that needs to change.

Proposal # 1 -- No unnecessary in-person appearances by Defendants required until the completion of Discovery Exchange

Since nothing meaningful can be accomplished without discovery being completely turned over, it is both silly and oppressive to make Defendants who are out on bond to appear just to sign a reset.  It literally accomplishes nothing.  With the exception of a first appearance after bonding out to sign bond conditions, they shouldn't have to come back just because the State of Texas is running behind on Discovery.

Prosecutors (and some judges) like Defendants to have to appear in person, unfortunately.  The reason for it has little to do with Justice, however.  They know that a Defendant who ain't there can't resolve his or her case.  That Defendant won't be there to hear the totally awesome plea bargain offer that the prosecutor is planning to throw out there.  Who needs to review evidence if the offer is so fantastic, right?  The more appearances that a Defendant is required to make, the more his or her resolve to fight his case will fade.  Hopefully, they will take the time served offer just to get their employer to quit complaining about them missing work.

It shouldn't be that way.  Right now, the discovery process is painfully slow.  As I've mentioned before, the Houston Police Department doesn't even consider expediting turning over footage from Body Worn Cameras until six months after the arrest.  The backlog seems to be growing exponentially, and that slows things down more and more.  There is no articulable reason that the Defendant should be the person who has to pay the price for the delay.

The presumption should be that unless there is a specific need for the Defendant to be in court, the Defense Attorney's appearance should suffice.

Proposal # 2 --  The Age of Disco(very Compliance) Settings

For those of you who don't practice criminal law in Harris County, you may not know that the types of court settings we have carry names.  In felony cases, the setting is referred to an Arraignment (ARRG) setting prior to the case being indicted by the Grand Jury.  Once the case is indicted, (depending on the court), it moves to a Non-Trial (NTRL) setting.  Depending on how concerned a particular court is, a case may have multiple NTRL settings before moving to the Pre-Trial Conference (PTCR) setting.  This setting is generally when a Court is notifying the State and the Defense that it is time to start talking about either working the case out or setting it for trial.  There may be several of these settings too, depending on the court.

After PTCR comes a Jury Trial (JTRL) or Court Trial (CTRL) setting.  Sometimes there may be a Pre-Trial Motions (PTMO) setting if there are some legal issues that need to be resolved before trial day.

My proposal is that after the ARRG setting, the court settings become Discovery Compliance rather than NTRL.  And, as I mentioned to Judge Cornelio, we'd be missing a huge opportunity if we didn't give them the code letters of DISCO.  

While the title of a setting may not seem like that big of a deal in the big scheme of things, this new name could actually prove to be helpful.  Judges are known to get antsy about cases getting older, but if a quick glance at the docket sheet shows that it's the 5th DISCO setting, the picture becomes quite clear on what the hold up is and who is responsible for it.  There's no reciprocal discovery in the State of Texas, so multiple DISCO settings point a clear finger at who is to blame.  

In my thought process, once Discovery has been completed, the Judge makes a finding that both sides agree that there has been compliance (at least to the best of their knowledge) and the Judge has a clear signal that there is nothing to keep Defense Counsel from rationally discussing the case with his or her client.  At that point, the setting moves to Pre-Trial Conference, which serves, in essence, as a Plea or Trial setting.  If a Pre-Trial Motion needs to happen, that's no problem.  After that, it's trial time.

It streamlines the process, in my opinion.  It also insulates both the Judiciary and the Defense Bar the next time a certain publicity-seeking, blame-shifting elected District Attorney tries to put them on blast as being responsible for the backlog.  Maybe if there are documented entries showing how many DISCO settings are happening on everyone's case, there won't be so much talk of greedy defense attorneys and lazy judges.  Just sayin' . . . 

Proposal # 3 -- Defense Attorneys are allowed (but not required) to use Zoom appearances on all settings prior to Pre-Trial Conference

I ain't gonna lie.  I've enjoy the hell out of Zoom settings when there weren't substantive issues to be addressed in court.  You can get a ton of work done sitting at your desk while waiting to be called upon in a Zoom meeting.  My productivity has increased dramatically during the pandemic and that largely attributed to not having to drive Downtown, fight the elevators and the crowds, and waste my time standing around waiting to approach the judge like I'm waiting on my order to be ready at Dairy Queen.

That translates into better and more effective representation, and that benefits us all.

If an attorney would prefer to appear in person, that's no problem as long as you aren't in the 338th. I would anticipate that after a few months of normalcy, attorneys will find themselves in court more and more often because more cases will have completed Discovery Compliance.  They don't need to appear in person in one court and then speed back to the office to log on and Zoom from their computers.  That would be silly.

So, that's my modest proposal.  Let me know what you think!  Who is ready for the Age of Disco?

Tuesday, May 18, 2021

Kim Ogg and the Backlog Blame Game

Kim Ogg had jury duty Wednesday.

How do we know this?

Because like any good self-promoting and self-aggrandizing politician like Kim Ogg, she made sure that the world knew it through multiple Twitter posts that let a breathless audience know that even super important people like her Royal Oggness will take time amongst the unwashed masses to serve on jury duty.  

And like most jurors, she, of course, brought a photographer and called Channel 13 to take pictures of her during her appearance.  I mean, the rules say you can't bring your children to jury duty, but it doesn't say anything about not bringing your photographer!


I heard from multiple, credible sources that once Ogg was assigned to a court for the actual voir dire process that she approached the judge and asked to be excused before having to sit through something so tedious.  That request was reportedly granted, so one might make the distinction that although Ogg showed up for jury duty, she did not, in fact, serve on jury duty.  But why let that slow down a photo op?

To be fair, she never claimed to have done anything other than to have "showed up," but I think most of us would agree that actually participating in the process would have been more helpful than just being counted as present before taking off.


But, Kim Ogg half-assing her Civic Duty isn't the point of this post.  What actually was notable was her third tweet about her mini-experience at Jury Duty:


There are a couple things to unpack here. Let's start with the issue that Harris County's Elected District Attorney seems to think that people have to register to be a juror.   One brilliant, Eagle-eyed Twitter follower caught onto this mistake quickly.


Fun fact:  people don't register to be jurors.  In the State of Texas, when you get your driver's license, you are added to the pool of potential jurors who receive a summons.  Otherwise, we'd never have enough people.  The fact that Kim Ogg would misstate something so basic is wildly amusing because of how simply wrong it is.  Somewhere out there, I can envision a multitude of Ogg followers blindly Googling "How do I register to be a juror in Harris County?"  

Her Tweet was so stupid, that I look forward to seeing a Tweet soon from Mark Goldberg that reads:  
"Late yesterday afternoon, a Tweet went out from DA Ogg that should have gone out under my name.  What you actually got was a draft form with some blatantly erroneous misinformation about needing to "register" for jury duty that was inadvertently distributed in that form, and I apologize for any confusion."

But Ogg's lack of basic Civics Knowledge isn't what I find interesting from that last tweet. What was far more interesting was this quote:

"Folks, we have to tackle this case back log.  Crime victims and their families deserve their day in court."

While Ogg is correct that there is a tremendous backlog of cases in Harris County due to the Covid-19 Crisis, her Tweet seems to neglect the fact that the District Attorney's Office is second only to the virus in adding to that backlog.

As I noted in this post from last December, prosecutors continue to contribute to the backlog of cases by failing to make reasonable punishment recommendations on cases in light of the circumstances that we are all facing.  It certainly isn't all of the prosecutors who are doing that.  Many prosecutors remain a pleasure to deal with and a picture of reasonableness.  But others remain either 1) oblivious to the totality of circumstances surrounding the Criminal Justice System at this time; or 2) too scared that they will get in trouble with the Upper Administration for making an excessively "lenient" plea deal.

Over the past year, I've had at least three different clients whose plea bargain offer was literally the maximum sentence allowable under the law.  I'm not saying that the charges weren't serious but, as I told one prosecutor, throwing around the maximum sentence isn't a plea bargain offer, it's a dare to go to trial.  If the offers coming from the prosecution offer zero incentive to plead, then of course the case is going to get set for trial.  In some cases, that may be appropriate, but more often than not, that approach to plea bargaining is nothing short of absurd.

The more troubling aspect of this is that too many prosecutors are using high recommendations as their default when they are unfamiliar with the case.  I was recently talking to a fellow defense attorney who was frustrated with a prosecutor who set a case for trial rather than offer a lower recommendation because the prosecutor was continuously unable to make contact with the Complainant.  The Complainant, as is true in many domestic violence cases, was avoiding speaking to the prosecution because she no longer wanted charges pursued.  Rather than dismiss (and potentially refile the case later) or offer a lower recommendation, the prosecutor decided it was easier to set it for trial and add to the backlog.

I ran into another fellow defense attorney friend in court last week.  He seemed genuinely perplexed by an extraordinarily high plea bargain recommendation that he had just received from a young prosecutor.

"Is it just me, or are these recommendations suddenly insane?" he asked.

I told him my theory was that younger prosecutors knew that they would never find themselves on the wrong side of the Ogg Administration for offering a recommendation that was too high.  A plea bargain offer that was too low couldn't be rescinded once accepted, and that could get them in deep crap with an elected D.A. who was known to fire people for embarrassing her in any way, shape, or form.  A high recommendation can always be reduced when and/or if appropriate, but it can't be raised once accepted.  Of course, it would become the natural default of the indecisive prosecutor to name an astronomical number and then sort it out somewhere later down the road.

This problem is further compounded by the fact that the massive caseload is causing prosecutors to fall way behind in completing tasks necessary to resolve cases.  Complainants aren't being located.  Discovery isn't being turned over in a timely manner.  Hell, the Houston Police Department is so backlogged that prosecutors aren't even allowed to ask for body-worn camera footage on a case until six months after the offense.  Additionally, complaints about prosecutors who don't return e-mails or phone calls have skyrocketed during the pandemic.  Part of this is exacerbated by Ogg's displease-me-and-I-will-fire-you policy that has led to a higher turnover rate, which, in turn, leads to prosecutors frequently moving from court to court and caseload to caseload.

And so another case is added to the backlog.

If a prosecutor doesn't fully know his or her case, then there is no way he or she can reasonably negotiate on it.  [SIDENOTE:  If you are a prosecutor and you are getting mad reading this, then I'm probably not talking about you.  You're great!  The person in the next cubicle over is the one I'm talking about.  You know that person is terrible.]

Just for fun, let's talk about what happens when a prosecutor does evaluate a case and sees that from a factual standpoint that it probably isn't the greatest case for the State of Texas.  Maybe it needs to be dismissed, or maybe it just needs to be given a low plea bargain recommendation.  It happens.  Cops can't be right 100% of the time, can they?  Prosecutors who don't want to pull the trigger on a dismissal or a low recommendation because they don't want to get in trouble have a couple of options.

A prosecutor can get a case No Billed by the Grand Jury.  There's an old saying about a Grand Jury indicting a ham sandwich, meaning that there is so little evidentiary oversite in the process that even a ham sandwich can be indicted.  That's certainly true. In today's digital age of electronic files, I've now had not one, but two cases that were indicted by accident, literally.  In one of those cases, the Grand Jury just rubber stamped my client's paperwork because it had gotten stuck to another case.  They hadn't even heard evidence on the case!  True story, but I digress.   The flip side of prosecutors being able to indict anything is that they can also utilize the Grand Jury process to get rid of anything -- including weak cases.

Back before the Houston Chronicle's Lisa Falkenberg's articles about Grand Jury abuses that won her a Pulitzer Prize and got rid of the "Pick a Pal" System of selcting Grand Jurors, you didn't really hear the Defense Bar complaining too much about the Grand Jury System.  The reason for that was two-fold.  First, the threshhold of proof for a case being indicted was so low that an indictment was normally expected.  Second, and more important, any Defense Attorney with any amount of sense knew that a solid Grand Jury presentation was a fantastic way to make a terrible case go away and go away early.

Take, for example, a murder case with strong self-defense issues, or perhaps, every single officer-involved shooting ever (until recently).  The decedent's family wants the accused's head on a platter.  The prosecutor knows that the case is terrible and has no chance of achieving a guilty verdict.  However, the prosecutor knows that the decedent's family is going to be tremendously upset and tremendously vocal if the prosecutor were to just dismiss the case.  The answer was always the Grand Jury.  

The Grand Jury met behind closed doors.  The Defense Attorney presented a packet.  The Prosecutor presented the packet to the Grand Jury and acknowledged that he or she didn't really disagree with what the defense attorney was saying.  Voila!  The Grand Jury returns a No Bill and the case is over.  The Prosecutor could sympathize with the deceased's family but blame that damn Grand Jury.  Some thought it was chickenshit.  Others found it to just be a practical tool under the circumstances.

But, getting back on topic, I bring this up because the Ogg Administration's culture of fear has led to prosecutors indicting cases, even when they shouldn't be.  The Defense Bar is still putting forth packets.  We even offer to let our clients testify (sometimes).  But more often than not, the indictment is coming down because the prosecutor has the power to just say "Yeah, that's all well and good, but you only have to find Probable Cause that a crime was committed.  Defenses can be argued later at a trial."  

And so another case is added to the backlog.

The other thing that a prosecutor can do to help reduce the backlog is agree to a court trial.  Let the judge decide whether or not a case is proven beyond a reasonable doubt.  Or let the defendant plead guilty to the judge without an agreed recommendation to see what punishment the Court feels is appropriate.  The Court could order a Pre-Sentence Investigation (PSI) report prior to sentencing.

But first, the State of Texas by and through her Assistant District Attorney, has to waive their right to a jury trial.  Without getting into the arguent of the absurdity of the idea that the State has a right to a jury trial, just understand that the prosecutors have to agree for a trial to be tried to a judge.  They have to agree to let a Defendant plead to a PSI or without an agreed recommendation to the judge.  If the State doesn't agree to that (by waiving the State's right to a jury trial), then a jury trial must be held to determine guilt/innocence.  This has always the case, but it has happened with more and more frequency under the Ogg Administration.  Although judges are elected officials entrusted to by the public to hold their positions, just like the District Attorney, the Ogg Administration has decided to block many of them from being able to dispose of a case.

And so another case is added to the backlog.

Kim Ogg likes to blame other people for things.  She is a politician after all.  She blames defense attorneys for the backlog. She blames Hurricane Harvey.  She blames COVID.  She blames the Freeze.  She blames the judges for letting too many people out on bond so that they won't plead guilty, thus causing the backlog.  She blames people not showing up for jury duty.  She even went so far as to poison the well of potential jurors send out an e-mail blast applauding herself for her jury "service" that encouraged jurors to show for service to "help give crime victims' families their day in court." (NOTE:  No mention of those folks presumed innocent under the law who might also want their day in court).


Ogg has blamed everyone but herself and her ridiculously stringent (and anti-progressive) policies for the backlog in cases.  That's what happens when you elect a politician to a job that shouldn't be political.

I hope you'll remember that when you go "register" to serve on jury duty.

Saturday, May 1, 2021

Judge Ramona Franklin and the 338th Star Chamber

 It was twenty-two years ago this evening that I learned (through the world's slowest dial-up internet connection) that I had passed the Bar Exam.  In some ways, it doesn't seem that long ago.  In others, it seems far longer than it actually was.  I've been around since the time of Johnny Holmes.  I've handled cases in multiple counties across Texas, and I've probably appeared in front of over one hundred judges.

I've appeared in front of good judges and bad, smart judges and not-so-smart judges, funny judges and humorless judges, kind judges and downright mean judges, strict judges and informal judges, liberal judges and conservative judges, humble judges and the utmost arrogant of judges.  I've appeared before judges that I adored and judges that I despised (and always will.)

I've even appeared before a certifiably crazy judge a time or two.  Some of my wildest war stories come from my time as the Chief of County Court at Law # 5 when Judge Janice Law was on the Bench. (Sidenote:  do yourself a favor and read the article about Judge Law.  It is wildly entertaining.  And accurate.)

I've seen judges make rulings or implement policies that I thought were dead wrong -- sometimes infuriatingly so.  I've seen them bend over backward to interpret the law in a way that suited their agenda -- often cruelly so.  

But I can honestly say that I've never seen a judge quite like Judge Ramona Franklin of the 338th District Court of Harris County, Texas.


I first met now-Judge Franklin when she and I both worked at the Harris County District Attorney's Office.  I had a three-year headstart on her at the Office, and we never worked together in the same court.  I knew her to say "hello" but she didn't seem to socialize that much.  She was a prosecutor for a few years, but if I recall correctly, she had left the Office before I did.  I don't recall hearing anything negative in particular about her during her tenure.

She became a defense attorney before I did, and that job can be rather nomadic by nature.  That's not unusual. Unless you represent co-defendants on a case, there isn't a lot of teamwork on this side of the law.  I never heard anything negative about her as a defense attorney, either.

I've only personally appeared before her once or twice since she was elected to the 338th bench in 2016.  Those times were brief but pleasant.  She was friendly and nothing was out of the ordinary.  

I bring all of this up because I want to stress that I have had no negative interactions with Judge Franklin since I've known her.  Although she and I are not friends, we certainly are not enemies, and nothing that I'm about to write is born out of a personal issue that I have with her.  I've criticized many a person on this blog over the past thirteen years and I feel (at least, I hope) that I've always been transparent when those criticisms arose from a personal issue.

This isn't one of those situations.  I want you to know that.

It goes without saying that the standard operating procedures for courtrooms around the country were thrown out the window in 2020 as the Covid-19 crisis took effect.  Things that we took for granted -- like walking into a courtroom to observe the proceedings, for instance -- suddenly disappeared in favor of safety protocols designed to keep from further spreading the virus.  

Over the past year, the System has adapted as best it could.  Courts have waived appearances for defendants accused of crimes in the majority of cases and settings.  Attorneys have the option of using Zoom video conferences for making appearances.  Courtroom proceedings are viewable on publicly accessible channels on the Internet.  

In the beginning, attorneys were free to attend court in person if they wanted to risk their own possible exposure to the virus.  Some did.  Many didn't.  The majority of the judges worked to set bonds that defendants could make and subsequently waived the requirement of appearance for those defendants who weren't in custody.  Some were required to appear by Zoom.  Others did not have to appear at all as long as their attorney was there on the client's behalf (either personally or by Zoom).  Much to the dismay of many zealous Law & Order-types, the general theme was to get as many defendants with pending cases out of jail and out of the courthouse to prevent further spread of the virus.

Inexplicably, Judge Franklin continued to go in the opposite direction.  While her brethren and sistren in the judiciary were trying to find ways to lower bonds to reduce the jail population, Judge Franklin was looking for ways to get defendants who had already posted bond taken back into custody.  

In an August 28, 2020 article in the Houston Chronicle, reporters Samantha Ketterer and St. John Barned-Smith wrote of judicial complaints made against Judge Franklin for the practice, citing two specific incidents where defendants who had paid bonding companies a non-refundable fee to post their bonds had those bonds revoked by Franklin following one of her "bond reviews."  In these instances, the defendant was taken into custody, despite having made bond and appearing in court as required.  The bonding company got their money back, but the bonding company was under no obligation whatsoever to return the fee paid to it by the defendant.  No circumstances had changed since the initial bond had been set, other than Judge Franklin whimsically deciding it wasn't enough.

There's a really big problem with that, however.  

Judge Franklin wasn't following the Code of Criminal Procedure by raising and revoking those bonds.  A defendant is entitled to a hearing before that can happen, and they are entitled to advanced notice of that hearing.  An attorney knows that and would fight for that right.  Unfortunately, as noted in the article, Judge Franklin was revoking those bonds on at least some of those defendants without their attorneys being present.

From the article:
Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.

Apparently, Judge Franklin missed the Due Process Clause of the 5th Amendment, which states that no person "shall be deprived of life, liberty or property, without due process of law."  Taking a person into custody on a bond revocation without the benefit of a hearing with notice is violating that person's right to Due Process.  A defendant probably doesn't know that off the top of his head though, does he?  Maybe that's the reason that the 6th Amendment has that guarantee of a lawyer that every American who has ever watched a police drama on television knows about.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Judge Franklin revoking and raising bonds on Defendants is the one-two punch of Constitutional violations.  Unfortunately, we are just getting started with the Star Chamber she is running in the 338th District Court.

Remember how I mentioned that courts in Harris County and around the state have live-streamed internet channels of daily proceedings?   Well, the 338th has the channel but made the notable decision not to turn it on.  Want to know what Judge Ramona Franklin is doing in her courtroom?  Is she following the Constitution of the United States and the laws and procedures of Texas?  Is she strong-arming defendants into pleading guilty?  Is she interrogating them without their lawyers present?  Is she having them arrested because she doesn't like their attitude?

Who knows?  She's turned her camera off.  We'll get back to that issue in a moment.

As reported in an article by Samantha Ketterer in the Houston Chronicle this week, the crisis in the 338th came to a head again on Thursday, April 29th.  I know that Samantha's article is behind a paywall, so if you don't have a Chronicle subscription, I'll tell you what happened.  I was tangentially involved due to my role as the current leader of the Harris County Criminal Lawyers' Association's Strike Force.  For those of you who are not familiar, the Strike Force, in addition to having a very cool name (that I didn't select by the way, but I totally would have if I had been the first person to ever lead it), is a group of volunteers within HCCLA who respond when an attorney finds himself in jeopardy with a judge.

As reported in the Chronicle, the attorney in need of Strike Force assistance this week was Clay Conrad.  The judge he needed assistance with was Judge Ramona Franklin.

The preceding week, Conrad had a client charged with the State Jail Felony charge of Retail Theft.  For those of you who don't practice criminal law, a State Jail Felony is the lowest level of felony in the State of Texas.  It is punishable by a maximum of 2 years in State Jail.  His client also had no previous criminal history and was out on a $1500 bond.  The client was ordered to appear before Judge Franklin and Conrad was prepared to accompany his client to court.

Then a not-so-funny thing happened.

The 338th District Court staff told him that, per Judge Franklin's orders, he would not be allowed to enter the courtroom with his client.  Per Judge Franklin's Covid protocols, the defendant must be present, but the defense attorney was forbidden from entering.

Conrad was told that he could appear by Zoom, and that would satisfy the defendant's right to counsel.  Conrad told the court that was unacceptable and that he would need to have the ability to stand side-by-side with his client in open court like any good lawyer would.  An attorney watching a client appear before a judge while he or she observes through Zoom is the equivalent of having no attorney present at all.  The defendant can't ask a private question.  The attorney cannot give privileged advice without it being audible to the judge, the prosecutors, and the audience.  

Knowing Judge Franklin's proclivity toward having spontaneous "bond review" hearings, it was even more vital that Conrad stand side-by-side with his client in open court -- far more so than it would be in other courts that take Due Process more seriously.

Conrad and his client were put at the end of the line on cases called before the judge that day.  Ultimately, he was told that he could file a brief as to why he should be allowed in the courtroom with his client.  Judge Franklin informed him the brief couldn't be any longer than 4 pages.  He was told to return to court on April 29th.  He wrote his brief.  He came back on the 29th.  

The HCCLA Stike Force came with him.


Clay Conrad (right front) and the Strike Force


So did Samantha Ketterer, who had been made aware of what was happening.  Ketterer asked the court if she could enter the courtroom to observe the proceedings, and was denied entry by the bailiff, on orders of the judge.  Ketterer followed up by asking if she would be able to watch the live feed on the internet as was possible with all other courts.  As per usual, the live stream of the 338th was turned off so that the actions of the court were visible to no one other than those inside or the attorneys admitted for a Zoom hearing.

Conrad asked whether or not he would be allowed to enter with his client, and he was told that he would not.  He must attend by Zoom.  Conrad told them that he did not have the ability to Zoom with his phone and that he did not have a computer with him.  In the meantime, Strike Force ninja Kate Ferrell reached out to personnel she hoped might have some sway over Judge Franklin regarding that live feed.  Without going into the details of those conversations, the response was swift and urgent. Approximately an hour later, the feed to the 338th District Courtroom was suddenly active.

Once the feed was live, it was watched by criminal defense attorneys around the State.  Conrad's issues with Judge Franklin had also been conveyed to the Texas Criminal Defense Lawyers' Association, which was also monitoring the situation.

As she had the previous week, Judge Franklin called on Conrad's client dead last out of all the defendants on the docket that day.  At approximately 1:30 p.m. (docket had started at 10:30 for bond cases), Franklin relented and allowed Conrad to enter the courtroom with his client . . .

. . . where they immediately held a "bond review."  The State of Texas, by and through her Assistant District Attorney, moved to raise the bond on this dastardly first offender charged with a State Jail Felony to $3,000.  I don't know specifically which prosecutor it was, but, seriously???  A prosecutor, who clearly understood Judge Franklin's tendency to revoke and raise bonds for little to no reason, attempted to have her do just that because . . . he could?  

Conrad objected, citing no notice to the hearing and demanding that his client be afforded her Due Process rights.  Judge Franklin elected not to raise the bond, and after a needlessly painful struggle, Conrad's client was allowed to walk out of the courtroom with her attorney.

Another defendant who had appeared before Judge Franklin that morning had not been so fortunate.  

A 17-year-old defendant, whose mother had paid to have him bonded out, was also ordered to appear before the court that morning.  The mother had not hired an attorney for her son yet.  He was told to enter the courtroom.  The mother was told that she could not.  She sat outside the courtroom with no idea of what was happening with her child.  Sometime later, court personnel came out and told her that her son's bond had been reviewed, revoked, and raised and he had been taken into custody.  The money she had paid to a bonding company had been a waste.  

All of this is just an example of one day in the 338th District Court, Judge Ramona Franklin presiding.   There are many other stories out there.  Many of them have been reported to those who are tasked with monitoring the actions of judges.  As of this writing, no action has been taken.

I realize that, generally, those accused of crimes don't automatically garner a lot of sympathy, especially not in Texas.  Even if that's the case, we should all value the rules that guarantee a fair fight when one is accused of a crime.  Judge Franklin is effectively running a Star Chamber, shrouded in secrecy and devoid of any apparent feelings of obligation about honoring the law and procedure.  Something simply must be done and the powers that be need to stop their hesitancy in acting about it.  This is absolutely an emergency situation.

I know this post is already excruciatingly long, but sadly, there is a lot of content to cover, and there is one additional issue that needs to be addressed.

What in God's name is "progressive" District Attorney Kim Ogg doing by allowing and encouraging her prosecutors to participate in what is happening in the 338th?  Why on Earth is she participating in bond reviews with no notice and without hearings?  As noted in the Chronicle article from August, the appellate court ruled that Judge Franklin could not revoke and raise the bond in one of the cases cited.  That ruling is on hold because Ogg ordered her Office to take that issue up on appeal to a higher court.  In the meantime, prosecutors in the court continue to ask for higher bonds, sometimes apparently (as in Conrad's client's case), just for the hell of it.

Judge Ramona Franklin was re-elected without an opponent in 2020.  She is beginning her fifth month of a brand new, four-year term.

This should scare the hell out of you.  

In the meantime, just pray that you never find yourself accused of a crime before the 338th District Court, Honorable Ramona Franklin presiding.

Wednesday, April 14, 2021

Services and Remembrances for Jordan Lewis


The family and friends of Jordan Lewis have asked me to share the planned events for our friend's services and remembrances and to share their thanks for the outpouring of sympathy during this very sad time.  

Services will be tomorrow, Thursday, April 15th at 1:00 p.m. at Congregation Emanu El in Houston.

Due to Covid restrictions, there are limits to the number of people who can attend Jordan's funeral.  In-person attendees are limited to family and close friends who have been specifically invited by the family.

Jordan's family does want all of his friends to be included, however, and they have made arrangements for the services to be live-streamed.  You can find the link by clicking here.  

Additionally, there is reserved space at Kirby Ice House (3333 Eastside, Houston, TX 77098) at 1:00 p.m., where the funeral services will also be live-streamed.  Drinks and a food truck will be available and masks will be required to attend.  

Services will be ending at approximately 1:45 p.m., at which time Jordan's family will be coming to Kirby Ice House to meet with friends who were unable to attend in person.  They are looking forward to meeting with everyone there and hearing any and all stories you can share about our friend and colleague.

Plans for a scholarship that honors Jordan's legacy of service and devotion to the practice of Criminal Defense are underway.  The family asks that, in lieu of flowers, you please consider donating to that scholarship once it has become established.

Sunday, April 11, 2021

Jordan Lewis

 Our Criminal Justice World was absolutely rocked today to learn of the sudden and unexpected passing of our friend and colleague, Jordan Lewis, at the age of 40.



I honestly don't even know where to begin with what I'm writing here because it seems so surreal to think that he's gone.  

He was my friend, although many knew him far better than I did.  He became a defense attorney in 2008 which was around the time I was wrapping up my career as a prosecutor, so I never dealt with him in an adversarial situation. I'm pretty sure that we first met around that time when we were both single and hanging out at Char Bar.  

Back in those days, the younger lawyers came to hang out and hear war stories from the older lawyers.  He was part of that group.  He was an extremely nice guy.  Fun to hang out with.  He was very earnest about his approach to defending clients.  He was very zealous with his ideals, but he wasn't naive about the way the System treated them.  He was very obviously the attorney who did his homework and wanted to work hard to be the best at what he did.

In the next couple of years, I remarried and had a second child, so I didn't hang out with the old guard at the Char Bar anymore.  I know Jordan got married and had two children, as well.  I didn't see him out and about socially anymore, but I'd see him at the CJC regularly and we'd always stop and talk for a minute.  

Jordan was always on the move in the profession.  As I mentioned, he did his homework and he worked hard.  He zeroed in on the laws and the procedures governing Driving While Intoxication offenses.  He challenged accepted protocols and he made a name for himself.  It seemed that in the blink of an eye, the rookie defense attorney that I met at Char was suddenly a highly respected authority in his field.  

It would have been very easy for him to keep that knowledge to himself as a very profitable source of revenue, but it was important to Jordan to pay forward what he had learned.  He was well known for being a constant resource for attorneys that had questions about anything -- from DWI to financial planning.  He was somebody who was there to help others find their way in a tricky business that he had mastered.  He gave speeches.  He answered phone calls.  He showed up in court when people needed help.

He was, without question, one of the Good Guys.

Facebook and the HCCLA Listserve have been filled today with heartbroken tributes to a good man who gave so much of himself to so many other people.  Our hearts are heavy with grief for a young father and husband with so much professional talent.  He was well-known and very loved by his CJC family and we are devastated for what his family is going through.

You will be missed, Jordan.



Tuesday, February 9, 2021

Kirby Taylor



The Harris County Criminal Justice world was heartbroken to learn of the unexpected passing of longtime defense attorney Kirby Taylor this week.  

Most of us have known Kirby since starting our careers in the CJC world.  I remember meeting him as a baby prosecutor back in 1999.  To use the term "universally beloved" would be a very appropriate way to describe this dear, sweet man.  He was kind and friendly to all and everyone that I know found him to be one of the most endearing people at the courthouse.

He was a lawyer who handled the most serious of cases with compassion coupled with common sense.  He fought hard for his clients with credibility and honesty that worked well for him in his practice.

If you ever met Kirby, you doubtlessly knew of his trademark "crazy socks" that became his calling card.  Regardless of whether he was wearing a three-piece suit or casual clothes, he was guaranteed to be wearing socks that could potentially zap your retinas.  He also carried with him the largest wallet I've ever seen in my entire life.  It wasn't filled with money (he once showed me) but with receipts, notes, cards, and other things.  It resembled a large rock and was held together with rubber bands.

Several years ago, he and his son were the victims of a horrific act of violence that left Kirby both physically and emotionally scarred for life.  If there was anything positive that came from that tragedy, it was the opportunity for our CJC community to let Kirby know how much we all loved him and hurt for him.  He came back from that tragedy and returned to the courthouse.  He was the same sweet man that he had always been, but there was a sadness with him that never left.

He still smiled and laughed that distinctive laugh of his, but it was different.  It was impossible to see him without feeling somewhat emotional about what he had suffered through.

It goes without saying that all of us will miss Kirby Taylor.  He was definitely a giant (both physically and metaphorically) of the CJC.  I'll miss his laugh and his smile, but most of all, I will miss the kindness that he showed to everyone he met on a daily basis.

It has been suggested to me that maybe we wear our craziest socks in honor of Kirby.  So, this Friday, wear them if you got them.  Kirby would have gotten a good laugh at that.  

Rest in Peace, Old Friend.


Tuesday, February 2, 2021

The Perils of Zooming

 Since I felt it was appropriate to make my critiques and observations about others' Zoom behavior in this post last May, I felt it would only be fair to tell on myself for something that happened this morning . . . 

If you are reading this blog and don't know me personally, then you may or may not have picked up on the fact that I like to mess with people.  99% of the time, the people that I harass or tease are my friends and it is all good-natured.  I was known for pulling practical jokes when I was a prosecutor and I still like to do them when the opportunity presents itself.

Because of this, I am keenly aware of the fact that I have a very large target on my back for retaliation at any given moment.  It's kind of like surfing on a giant wave, and knowing that you are eventually going to wipe out at some point.  I strive on a daily basis to avoid giving some of my more frequent targets any ammunition to get back at me.  Some days, I'm more successful than others.  

As per usual, for New Year's this year, I decided to try to lose some weight and get into something that could loosely be described as being in shape.  I keep hearing about the "Dad Bod," and have decided that I would be lucky to get to that point with some effort.  I'm pushing 50 years old, so I'm trying to manage my expectations.

I bought a Peloton last year and I've got some free weights in the playroom/home office.  I quit drinking beer at the house and I'm trying to lay off the desserts.  I made it through the first month of the year okay.  None of it is very pretty to watch, and I will not be joining the ranks of people posting "gym photos" to document their exercise progress.  

This morning, I'm working from home with a couple of courts that I need to appear in via Zoom.  My first stop was in the 182nd, where I had a brief conference with Judge Lacayo and the prosecutors before resetting the case.  I texted the prosecutor I was working with for my next case of the day and she said that she needed about five minutes before logging on in the next court.

So, I decided to do a couple of reps with the free weights.  

To be clear, this is not a pretty picture.  The weight isn't particularly much.  My form is probably terrible.  I'm overweight.  The overall picture is not good.  

But dammit, I'm working on it.

I go hit my weights and struggle through a quick set before docket.  I then set the weights down and start to go back my computer . . .

. . . and that's when I see the little green light that indicates my computer's video was on.

My heart rate goes up.  I wasn't sweating before, but I'm starting to now.  

I had opened up the District Clerk's website to look up a reset date for another client, but that wouldn't have slowed down the camera from working.

I was faced with the terrifying idea that I had not completely logged out of the 182nd Zoom Courtroom and just performed my very sad efforts at exercising in front of Judge Lacayo and staff, Casey Little, Missy Wheeler, and all the defendants logged in for courts this morning.

Y'all, I thought I was going to throw up.  Seriously.  I thought my day of reckoning for all of the practical jokes and smart ass comments had finally come to pass.

I rushed back to my computer -- for some reason, moving to the side in an attempt to be off-camera as if the damage wasn't already done -- and closed the clerk's website.  

I was expecting to see the entirety of the 182nd courtroom staring back at me.

But, fortunately, I live to fight my practical joke war with humanity for another day.  I had apparently opened Facetime on my computer at some point, but mercifully, had not actually called somebody.  My ugly exercise routine had remained private.

I was fully prepared to fake my death and move to another country, otherwise.  

Friday, January 29, 2021

The Civil-Prosecutorial Alliance

Although it has been almost twenty years, I still vividly remember the first intoxication manslaughter case that I handled as a prosecutor.

Like most cases of that nature, it was heartbreaking.  More heartbreaking than most, actually.  The victim was a young student at Rice University.  She and three of her friends had gone to her parents' house to eat dinner before going to get ice cream at Amy's Ice Cream at Shepherd & Highway 59.  When they were finished with their dessert, they headed back towards their dorm on campus.  It couldn't have been a more innocent evening for a group of college students.

Traveling down Bissonnet at over 70 miles per hour was the highly intoxicated defendant in a large-sized pick-up truck.  He'd been drinking all day and had reached the point where he had no inhibitions about how recklessly he drove.  As he approached the intersection with Durham, there was a red light, and a car stopped in the lane ahead of him.  Not to be slowed down, he swerved around the stopped vehicle, moving into the turn lane so that he could just keep on speeding down Bissonnet.  

The car full of Rice students proceeded into the intersection because they had the green light.  The defendant's truck t-boned their small car at well over 70 miles per hour.  The students' car was flung like a toy across a neighboring parking lot, coming to rest against the concrete steps leading into a small bookstore.  The young lady driving, who only an hour earlier had told her parents that she was going for ice cream before going back to the dorm as she said goodbye to them for the last time, was killed instantly.  The other three passengers were badly injured but ultimately survived.

While the case was pending trial, I got to know her parents. They were wonderful people.  Their daughter was their only child and they were understandably and irreparably devasted by her loss.  

At least one of the surviving passengers initiated a civil lawsuit against the Defendant.  One day, the civil attorney for the survivor showed up at the Office unannounced and subsequently told me that she was there to review my evidence in the case.

And although my heart and spirit were definitely aligned with her motivations, I had to tell her no.

And it was a very firm "No."

It wasn't just the fact that sharing evidence with a civil lawyer was against office policy at the time (although it was).  There was just something unseemly about it.  No matter how noble the civil lawyer's motivations were or how noble mine were, one did not need to be sullied by the other.  My goal was to put the man who had killed one innocent girl and injured three others in prison.  It wasn't to seek money from him, regardless of how much he should be paying out for the lives he destroyed.

Ultimately, a jury sentenced him to twelve years in prison.  He served his time.  I have no idea what became of the civil suit.  I wasn't supposed to know.  The purpose of my role as an Assistant District Attorney was different and it wasn't affected by monetary motivations.

I'm reminded of that case because of the apparent alliance that has developed between Harris County District Attorney Kim Ogg and private civil attorney Michael Doyle over the pendency of charges stemming from the infamous botched Harding Street raid that led to the deaths of Rhogena Nicholas and Dennis Tuttle.

For those of you following along at home, Michael Doyle is a prominent Houston civil attorney, and apparently a supporter and/or friend of Kim Ogg.  I have no idea what their initial tie to each other was.  Perhaps it stems from Ogg's days as a civil lawyer with her father, where some of her "ethics" decisions were every bit as questionable as they are now.  

As I wrote in my previous post on the ill-fated Arkema case, when the District Attorney's Office bit off more than it could chew by filing a huge environmental case against a chemical company, it quickly became apparent they needed some serious help.  Like a knight in shining armor, Michael Doyle suddenly and inexplicably stepped in to try it pro bono.   For those of you who aren't familiar with the business side of running a law firm and what his involvement entailed, suffice it to say that he donated hundreds of thousands (if not more) dollars worth of his (and his firm's) time and effort into trying a case for free.

That's a huge gift to us taxpaying citizens of Harris County, in theory, but it really begs the question as to "why on earth would he do something like that?"  Spending that much time and effort on being a special prosecutor on a case as complex (and yet still weak) as Arkema is what could be called a "firm killer."  A lawyer could potentially drive his firm into bankruptcy while working on such a large pro bono case.  I honestly don't know the answer to this question, but what's in it for Doyle?  If his volunteerism was really so magnanimous, Harris County should be honoring him with a parade or something -- despite how poorly the trial ultimately turned out for him and Ogg.

While the Arkema case was still pending, the disastrous raid on Harding Street occurred.  Within days of the raid, a prominent civil attorney suddenly appeared like a knight in shining armor to handle the wrongful death civil cases against those responsible for the debacle.  Coincidentally (or maybe not), that attorney was Michael Doyle.

I look at the facts surrounding the deaths of Tuttle and Nicholas as akin to the intoxication manslaughter case I tried.  It is heartbreaking.  It is not a case that lends itself to inspiring people to want to look at "both sides of the story."  Something terrible happened -- a terrible injustice -- and the vast majority of those who know about the case will more than likely feel impassioned that accountability should be swift and harsh.  While the intoxication manslaughter case could be the poster child for harsh punishment against drunk driving, the Harding Street case could be the poster child for harsh punishment against police abuses.

The Harris County District Attorney's Office has been on a charging spree for all things Houston Police Department in the wake of the Harding Street Raid.  It goes past the events of that day two years ago.  Deep dives have been made into payroll irregularities and any other misdeeds possibly attributed to HPD Narcotics.  Again, there is nothing wrong with looking into abuses of power, but one has to wonder what the driving factor truly is.  From a legal standpoint, it seems that Ogg's indictments are designed to show that Harding Street was merely an example of a systemic problem that was known about and condoned by the City of Houston Police Department.  That sure could be helpful in a civil suit against the City of Houston as illustrating that the City as a whole should be liable for what happened.  It would serve as strong evidence that Harding Street was the fault of more people than just one rogue cop.

To be clear, my issue here is not that Kim Ogg is aggressively investigating and/or prosecuting the officers involved in the Harding Street raid.  Of course, she should do that and would be grossly remiss if she did not.  I also don't fault Michael Doyle for aggressively pursuing a civil suit against those same officers.  He should absolutely do so on behalf of his clients.  However, the scope, as well as the timing of many of Ogg's charges have given a very strong appearance that they are designed to assist (and work in conjunction with) Doyle's lawsuits.

In my opinion, the civil cases and the State's prosecutions should function as two parallel lines that never cross.  To cross those lines creates an appearance of impropriety that has no reason to exist and it damages the strength of those cases.  It also creates a very slippery slope for the future.

As agents of the State of Texas, prosecutors with a District Attorney's Office have significantly more power than a civil lawyer.  They have access to databases that only law enforcement is entitled to.  They can compel testimony in Grand Juries.  They can expedite personnel records from law enforcement officers, hospitals, and a whole host of other entities with an ease that no civil attorney would experience.  They can subpoena things as part of an investigation prior to a case being filed, even if it is just exploratory.

If Doyle has a direct pipeline of discovery coming from the investigations that Ogg has come up with, he's doing pretty well for himself and his clients.  That's what the attorney on my case wanted from me so many years ago, and that was something that I wasn't going to give.  I could cheer the attorney on and root for a bazillion dollar verdict for the victims, but I could not offer my assistance.  That was a parallel line that I would not and could not cross.

The most powerful tool that a prosecutor has that a civil attorney does not, however, is the ability to charge someone with a crime.  I don't practice civil law so I can't speak to all of the advantages of having someone you are suing charged with a crime, but here are some that seem self-evident.  In addition to all of those discovery tools available mentioned above, a criminal case can often get to trial quite a bit faster than a civil case in most (non-pandemic era) instances.  There can also be Grand Jury testimony, the leverage of incarceration, and just the general stigma of being charged with a crime.  

Last week, several people noted that the statute of limitation to file lawsuits related to the Harding Street raid would run this week.  As a matter of fact, today is the two year anniversary of the shooting.  Some really smart people believed that District Attorney Ogg would fire off another round of indictments just under the wire to help bolster Doyle's lawsuit. (NOTE:  Kim Ogg has tweeted something on January 23rd about holding people accountable for Harding Street.  She apparently deleted it after I responded with this tweet.  I did not realize she had deleted it until I was writing this post.)


Sure enough, Ogg issued a round of new indictments on January 25th and like clockwork, Doyle filed lawsuits -- just under the wire before the statute of limitations ran.  For good measure, Ogg also dissolved her own Major Narcotics Unit within the D.A.'s Office.  What amazing timing!

As I acknowledged above, given the heartbreaking and extreme circumstances of Harding Street, I realize that the general response to the Doyle/Ogg relationship may be an overwhelming "so what?"  The unseemly actions of this particular Civil-Prosecutorial Alliance pale in comparision to the misdeeds of HPD Narcotics.  I can understand that reaction.  I really can.  

But in the instance of the Harding Street Raid, it is all so uneccesary.  The facts of that day are dark, disturbing, and perfectly capable of standing on their own merits in both the civil and criminal arenas.  The parallel lines of those jurisdictions did not need to be crossed.  In creating this alliance, Ogg has opened the door to attacks that many of her prosecutions related to the case are "politically motivated."  I can assure you that is what the defense attorneys for all of the officers involved in these prosecutions are loudly pointing out to the Courts.

And as I mentioned before, it is such a slippery slope to begin down.  

What if the next case isn't as egregious as Harding Street?  What if the District Attorney's Office decides to do a favor for a civil lawyer on a less compelling case?  What if the next case isn't quite so clear cut?  What if it's a neighbor dispute where the right civil attorney has the ear of the elected D.A. and can maybe get some charges filed?  What if it's a fatal traffic accident that would be stronger with some manslaughter charges?  What if you can get theft charges in a civil dispute?

It is a dangerous pathway to follow.