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.

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 ...