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.

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.