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?