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!
"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).