Monday, October 24, 2022

The 2022 Election: The District Court Races - Part Three of Three

180th District Court -- Judge Dasean Jones (I)(D) vs. Tami Pierce (R) -- There is probably no greater contrast in the type of candidates on either side of the ballot than the one we see in the battle for the 180th District Court.  The Republican challenger, Tami Pierce is a retired police officer and former prosecutor whose campaign website encourages voters to be "Fierce with Pierce."  She apparently was a defense attorney for ten years before becoming a prosecutor in Polk County.  Although it is a cute slogan, I'm not sure that ferocity is something that attorneys look for in a presiding judge.  The ideal judge, as I noted in part one of this election recap, is a neutral one who can call balls and strikes without an agenda -- no ferocity necessary.  Although I will give her credit for being well-versed in criminal law, the fact that her career hasn't been in Harris County bothers me.  Harris County isn't a small county like Polk and I don't know how it could be more polarly opposite.

By contrast, Judge Dasean Jones is probably one of the quietest and most subtle people that I know.  I knew him before he was a judge and before I knew of his political aspirations found him to be someone very concerned about the Criminal Justice System being fair to all those who came before it.  He is an Army veteran who saw active duty and continues to serve as a Major in the Army Reserves.  He has strong opinions about how the Criminal Justice System and it should be no surprise that he has not allowed himself to be anything remotely resembling an arm of the prosecution.  The calls that he has made from the Bench are made from a position of what he thinks is best.  He's making calls as a member of an independent judiciary as he should -- even if public opinion doesn't like it.

182nd District Court -- Judge Danny Lacayo (I)(D) vs. Robert Jackson (R) -- there are several things that I find to be wildly amusing about the candidacy of Robert Jackson who is running for the 182nd District Court against the wildly popular incumbent Judge Danny Lacayo.  During the primaries, the DA's Office angrily denied encouraging its prosecutors to run against judges it disliked.   I guess they consider encouraging one of its investigators who just so happens to possess a law degree to be a different matter.  The second thing that I find to be wildly hysterical is Investigator Jackson is touting having won the Houston Bar Association's Judicial Preference Poll when he doesn't actually practice law.

Here's a spoiler alert for any potential voters looking at the Houston Bar Association's Judicial Preference Poll:  it's not an accurate barometer of the opinion of people who actually practice criminal law.  The vast vast majority of Criminal Defense Attorneys in Harris County aren't members of the Houston Bar Association for a couple of reasons.  The first reason is that it largely caters to attorneys who practice civil law.  The second is that it is generally a fairly conservative organization and most defense attorneys are more liberally leaning.  Additionally, the Harris County District Attorney's Office has traditionally paid for membership for all of its prosecutors to be members of the Houston Bar Association so that they would have a voting bloc.    There is probably no better example of how this turns out a skewed result than an investigator who doesn't actually practice law being deemed a better jurist than a very well-liked and respected judge like Lacayo.

I've known Judge Lacayo since he was a baby prosecutor and I am proud to also call him my friend.  He was a fair and reasonable prosecutor during his time with the Office before becoming a diligent and zealous advocate with the Public Defender's Office.  On the Bench, he has proven himself to be a neutral yet tough judge.  He is the first person to give a non-violent a second chance, but he's made himself very clear that he isn't a fan of the third chance.  I've had him rule against me more than I've had him rule for me but his rulings were all based in the law, not personal preference.  He follows the law to the letter and isn't afraid to drop the hammer on someone he finds to be beyond redemption.  He's a fantastic judge and deserves to be reelected.

183rd District Court -- Gemayel Haynes (D) vs. Kristin Guiney (R) -- the 183rd District Court Bench is technically an open bench since Democratic candidate Gemayel Haynes defeated incumbent Judge Chuck Silverman in the primary.  He faces former 179th & 232nd District Court Judge Kristin Guiney on the ballot.  Both candidates are good friends of mine, so this is a tough one for me.  

Kristin Guiney had an excellent reputation on the Bench during her tenure.  She was first elected to the 179th in the 2012 election, only to be swept out in 2016 with the remainder of the Republican Judges.  She was appointed to the 232nd District Court to complete the term of Judge Mary Lou Keel when Keel went to the Court of Criminal Appeals but was swept out again in 2018 as part of that Democratic Sweep.  No one, including her opponents in those races, would attribute those losses to anything she had done wrong.  She was very well-liked and respected during her time on the Bench and that was a feeling shared by both the Defense Bar and the State.  On a personal note, Guiney is someone I've known since she started at the Office.  We don't see each other as often as we used to but she is still a family friend.

Similarly, Gemayel Haynes is also a good friend of mine that I've had the opportunity to know and watch since he started as a lawyer.  We also used to be neighbors (RIP Dorothy's!)  I've watched him grow from a relatively shy (or at least quieter) prosecutor into an outspoken leader within the Harris County Public Defenders Office.  I always enjoy talking to him because he is so passionate about the Criminal Justice System and the fair application of the law to all people accused of crimes.  I think that he also would make a great judge.

184th District Court -- Kat Thomas (D) vs. Lori Deangelo (R) -- The 184th District Court is another open bench after Democratic candidate Katherine "Kat" Thomas defeated incumbent Judge Abigail Anastasio in the March primary.  I find this race to be a curious one because it has a defense attorney running as the Republican and a prosecutor running as the Democrat.  Both candidates are friends of mine.  I've known Lori Deangelo longer, but I would say that I'm closer to Kat.

Lori was slightly ahead of me at the Office in seniority and she stayed on quite a bit longer than I did.  When I dealt with her from the defense side of things, she was always fair and pleasant to work with.  She was on track as a career prosecutor and I was surprised when she left the Office.  She ran for District Attorney in 2020 but did not win the Republican nomination.  She has been a defense attorney for quite some time now and I do think that is a valuable perspective to have as a judge.

For about a year or two, it seemed like almost every case I had pending in Harris County was being handled by Kat Thomas, but I definitely was not complaining about it.  I enjoyed working on cases with her.  She was professional, friendly, and completely above board in all of the cases that we worked on together.  She was the prosecutor in vehicular crimes and we dealt with some pretty gruesome and tragic cases.  She was open-minded and fair.  She was a prosecutor whose word I could take to the bank and she was a pleasure to work with.

185th District Court -- Andrea "Andy" Beall" (D) vs. Chris Carmona (R) -- like the 183rd and 184th, the race for the 185th District Court is an open one after Andy Beall defeated incumbent Judge Jason Luong in the March primary.  I was pretty open about my support for Judge Luong in March and my disdain at the many of the "below the belt" attacks on him as a judge.  I was disappointed that the campaign took that tone because I thought it was unnecessary.  Andy Beall was a strong candidate who could have run a strong campaign on her own credentials.  I did feel that her positions on certain criminal law issues were more closely aligned with Republican ideology than Democrat and I pointed that out.

All of that being said, I'll vote for Andy in the 2022 election because her experience is in Criminal Law.  She is a felony chief prosecutor and she understands that system.

I don't really know Chris Carmona personally, although I'm friends with him on Facebook.  I supported him when he ran for County Attorney in 2016 against Jim Leitner because he, um, was running against Jim Leitner.  That being said, it seems like Carmona runs for a different office quite frequently.  That doesn't mean that he's a bad person or even a bad candidate, but I'd rather have someone on the Bench who is dedicated to the practice of criminal law and not just seeking an elected position.

208th District Court -- Beverly Armstrong (D) vs. Heather Hudson (R) - the race for the 208th District Court Bench is an unusual one for me because I don't know either of the candidates.   As I mentioned in my primary write-up back in February, Beverly Armstrong has been a career prosecutor in some of the surrounding counties and quite a few people that I know and respect have spoken very highly of her.  According to her website, Heather Hudson is a career prosecutor who has worked in other jurisdictions but has been in Harris County for several years now.  It indicates that she is in the appellate division, so that would easily explain why I don't think I've met her.  

209th District Court -- Judge Brian Warren (I)(D) vs. Kevin Fulton (R) --  the race for the 209th District Court is not a close one for me.  Judge Brian Warren and I have been good friends since we served together in the 174th District Court as prosecutors.  He left the D.A.'s Office before I did to start a successful career as a defense attorney, and he took the time to sit second chair with me when I tried my first case as a defense attorney.  In many ways, he's like a brother to me and I couldn't be more excited or proud to see what a great job he's done on the Bench during his first term.   He has proven himself to be a careful and thoughtful jurist who is actively involved the day-to-day operations of the CJC.  

I'm not familiar with the Republican candidate in this race, Kevin Fulton, and I'm not seeing that he even has a campaign website up.  His State Bar profile lists him as a lawyer who practices "business, family, labor-employment, litigation, personal injury, real estate, wills-trusts-probate."  Notably absent from that list is criminal law, which should be tremendously concerning to anyone who actually cares about the Criminal Justice System.

228th District Court -- Judge Frank Aguilar (I)(D) vs. Andy Taylor (R) --  as I noted in my February write-up on the primaries, I'm a big fan of 228th District Court Judge Frank Aguilar and out of the judges elected in the 2018 election, I've probably had the most contested hearings in front of him.  In each instance that I've appeared before him, he let the parties try their cases without intervening unless called upon.  He called balls and strikes and made his rulings based on the law.  His personality was never interjected into the proceedings.  In my mind, that's what a judge should do and how a judge should be.  He is not a judge who could be described as either being pro-Defense or pro-State, and that's all that I think we could ask for.

I've seen his Republican opponent, Andy Taylor, around the courthouse on a regular basis, but I don't know him personally.  I actually didn't know his name until I looked up his campaign website.  To be fair, he does practice criminal law unlike many of the other candidates the Republican Party has chosen to run against good judges.  I don't know much about him.  

230th District Court -- Judge Chris Morton (I)(D) vs. Brad Hart (R) - ugh.  And then we get to these two candidates, who seem to be bound and determined to give me an ulcer by running against each other again.  They ran against each other in 2018 when Judge Morton won the bench previously held by Hart, and I told them both back then that they were stressing me out because they were both close friends.  So apparently, they decided it would be fun to run against each other again.

The reason that the race between these two candidates stresses me out so much isn't just because they are good friends.  It is also because they are both good judges.  Brad Hart was my first chief when I started at the D.A.'s Office and I consider him to be a friend and a mentor.  He was a good prosecutor, teacher and leader.  I was very happy for him when he became judge and I thought he did a great job of it.  I was honored to speak at his investiture.  As I wrote back in 2018, I was disappointed when Chris ran against him although I thought Chris would make a great judge too.

As it turns out, I was right.  Chris Morton has turned into a great judge.  He's proven himself to be the kind of judge that you hope to find on the bench if you find yourself having to go to court.  He follows the law and his conscience without allowing himself to be swayed by public opinion or pressure.  He's making rulings based on his considerable judgment and is more than happy to take as much time as needed to explain his rationale if you disagree with him.  He's not swayed by personal friendships (he set one of my client's bonds at $1.5 million) and takes great steps to ensure that the appointed attorneys in his court aren't selected by him in order to ensure neutrality.

232nd District Court -- Judge Josh Hill (I)(D) vs. Joshua Normand (R) -- one of the easier decisions on the ballot is the race between incumbent 232nd District Court Judge Josh Hill and attorney Joshua Normand.  Since taking office in January 2019, Judge Hill has done an outstanding job on the Bench, running his court fairly and efficiently without showing any level of favoritism toward either the State or the Defense as he makes his rulings.  He has been active in seeking (and giving) input to help keep the Criminal Justice Center moving along as effectively as possible during the Covid crisis.  

On the Bench, he has been a compassionate judge who will take a considerable amount of time talking to Defendants to make sure that they understand the legal process.  He takes his time reviewing all the relevant factors in determining bond.  He does his own legal research on issues that he doesn't know the answer to off the top of his head.  He makes his rulings based on the right factors instead of public opinion.

As with several of the other candidates on the Republican side of the ballot, I don't recognize Joshua Normand by name or sight after looking at his website.  His professional website indicates that he primarily does tax law, which is a far cry from criminal law.  It mentions that he does some criminal law, but I have no idea who he is.

248th District Court -- Judge Hilary Unger (I)(D) vs. Julian Ramirez (R) --  I didn't know Judge Hilary Unger very well before she took the bench in January 2019, although I think I've known her in passing since I've been in Harris County.  During the past several years, I've gotten to know her better as I've appeared in her court on multiple occasions and also had meetings with her and other judges about the Managed Assigned Counsel (MAC) program.

Judge Unger is someone who is extremely passionate about the Criminal Justice System and works hard to make sure that it is fair and equitable to all who appear before her.  She has no qualms about spending as much time as she needs to when evaluating issues before her, both big and small.  She devotes a great amount of attention to all matters before her and she does a good job.

Republican candidate Julian Ramirez and I used to be friends when we were both at the District Attorney's Office but had a falling out after I left.  I'm not a fan and I don't trust him.  He was one of the prosecutors whose contract was not renewed by Kim Ogg when she took Office.  After leaving the Office, he has stayed away from any defense work but has done some special prosecutions.  I'm not sure if that's because he can't bring himself to be on the defense side of things, but he definitely lacks perspective on that side of the Bench. 

262nd District Court -- Judge Lori Gray (I)(D) vs. Tonya McLaughlin (R) --  I only knew Judge Lori Gray in passing prior to her taking the Bench in 2019.  She's a very nice lady, but I don't know her well at all.  During the few times I've appeared in front of her, she's been very nice, but I've never had to try anything contested in front of her.  I don't have anything negative to say about her.

I have known Tonya McLaughlin since she and I worked together at the D.A.'s Office, and I think the world of her.  I supported her when she previously ran for Court 10 back in 2014 and I stand by all of the nice things I had to say about her back then.  Tonya has been a prosecutor and a defense attorney.  She knows trial work and she knows appellate work.  She's also one of the genuinely nicest people I know.  I think she would make a fantastic judge.

263rd District Court -- Melissa Morris (D) vs. Amber Cox (R) -- the 263rd District Court is also an open race after Democratic Candidate Melissa Morris defeated incumbent Judge Amy Martin in the March Primary.  As I mentioned in my February post, I don't know Melissa except in passing and we are friends on Facebook.  She has always been very nice to me, but I just don't know enough about her to say too much.

I know Republican Candidate Amber Cox a little better than I know Melissa.  Amber is a prosecutor at the D.A.'s Office and I worked with her on a very serious case involving some serious injuries that had a very strong self-defense claim.  Amber was extremely above-board and heard me out on the issues I brought to her attention and, in my opinion, she ultimately did the right thing.  I enjoyed working with her on that case, but have not had many other opportunities to do so.  She is always friendly but I do not know her very well outside of work.

482nd District Court -- Veronica Nelson (D) vs. Judge Maritza Antu (R) - the race for the 482nd District Court is an anomaly on the ballot this year because it is the one and only criminal judicial race where the sitting judge is a Republican facing a Democratic challenger.  That's because the 482nd is the newest court in the county, having been created by the legislature only a year or so ago.  Since it was newly created, the Governor got to pick who the new judge would be.  Since the Governor is Republican, he obviously picked a Republican to be judge, and the person he appointed was former prosecutor and then defense attorney Maritza Antu.

There are a couple of caveats that I have to give before proceeding.  

The first caveat that I need to give is that Judge Antu's opponent, Veronica Nelson, is someone that I consider to be a very close friend.   She and I tried a case against each other when she was a relatively junior prosecutor at the District Attorney's Office and I respected the way she tried the case.  She was candid, reasonable, and completely above-board in her handling of a case.  We got to be friends during the course of that trial, and she is one of my favorite people to talk to.  She likes to give me hell, but she knows she loves me.   Veronica left the D.A.'s Office several years ago and since then has served as the Staff Attorney to the Criminal and Civil Courts at Law.  Her duties are advising those judges on issues in the law that they may need assistance with.  

Veronica is very invested in the Harris County Criminal Justice System and what needs to be done to improve it.  We talk quite frequently about issues we see in the CJC and I have always appreciated her insight.  I think she would make a phenomenal judge and she has my full support.   She cares about the integrity of the system and would be a great addition as judge.

I knew Judge Antu when she was a prosecutor and never had a conflict with her.  She handled cases that I was defending and I always found her to be fair (maybe a little overzealous) on my cases.   We didn't often agree, but we didn't fight.  She, too, was a victim of Kim Ogg's purge when Ogg took office in 2016, and I felt that was unwarranted (as I felt about almost all of the other victims).  We were friendly with each other after she left.  I'm friends with her husband, Matt Peneguy, who works for the Feds.  Our kids went to the same daycare and we talked at a great many birthday parties.  We weren't best friends but we certainly weren't enemies.

In the election of 2018, she ran for the Republican nomination for the 185th District Court against former Judge Stacey Bond.  In my blog write-up back then, I said nothing negative about Judge Antu, but I did note that Judge Bond was one of the best judges I had ever practiced in front of.  Ultimately, Judge Bond won the primary, only to lose to Judge Jason Luong in the general election.  Judge Antu never spoke to me socially again, however.  We weren't super close to begin with, but I was kind of surprised at how angry she was about me failing to endorse her.   

I don't bring that up to reopen old wounds, but to give context when I say that to her credit, Judge Antu has been nothing but courteous and professional to me on the Bench.  When the 482nd was created, multiple cases were pulled from the already existing courts and sent to the 482nd to ultimately be disposed of.  Several very serious cases that I had pending elsewhere were suddenly in front of someone who hadn't made eye contact with me in years.  I was concerned.  Ultimately, the concern that she would treat me unfairly for personal reasons was misplaced.  Almost all of those serious cases of mine ended up being dismissed when Judge Antu held the State to a strict timetable for being ready for trial.

That being said, I do have concerns that Judge Antu's has very pro-prosecutorial tendencies that have led to her assisting the State on occasion when the State fails to do its job.  I recently had a client charged with a serious case who was alleged to have committed bond violations.  The State moved to hold him at no bond, and as his attorney, I demanded a hearing on that matter.  The standard of proof that the State would have needed to prove to have my client held at no bond was not very high.  All they really needed to do was subpoena one witness and have that witness testify for about five minutes.

We set the case for a hearing.  The State forgot to subpoena any witnesses.

On the day of the hearing, the State proceeded to the court on the hearing with no witnesses.  I object right and left that without witnesses, my client was being deprived of a hearing.  That was denied.  The State attempted to introduce documents without a witness to authenticate those documents or show that they were relevant to my client.  I objected.  That objection was overruled.  At the end of the hearing, the State's motion to hold at no bond was granted.

In the big scheme of things, I can say that if the prosecutors had put on the evidence that they were required to, pretty much any judge in the CJC would have most likely held my client at no bond.  But, I think that every judge in that building would have required the State to make that minimal effort to prove the facts alleged first.  Judge Antu didn't, and that concerned me. It is my understanding that I'm not the only attorney who has gone through this with her, and I want to be very clear that I don't think her ruling was anything personal.  And if you are wondering, yes, I'm working on a writ to hopefully correct it and get an actual hearing.

The issue that I have with Judge Antu's ruling is what concerns me about what seems to be the platform of the Republican Judicial candidates in general.  I don't like the message that "even if the prosecutors don't do their job and prove a case, the judges will incarcerate the accused anyway."  It's contrary to the principles of the Constitution and the entirety of the Criminal Justice System.  

I believe that if the State does what it is supposed to do, then ultimately the truth will prevail and the System will work.  If the State doesn't do what it is supposed to do, then it won't.  It's just that simple.

But what the System definitely does not need is a judiciary that is there to help the State along anyway when the State doesn't meet its burden.  That's not justice.  That's just having a second prosecutor on the bench.  If the State can't win a case without another prosecutor on the Bench, then maybe they shouldn't be trying it in the first place.

Sunday, October 23, 2022

The 2022 Election: The County Court at Law Races - Part Two of Three

Okay, let's jump right in.  Hopefully, if you are reading this, you've already read Part One of my sweeping epic on the 2022 Election.  Also, many of these candidates I talked about in more detail during the primary elections earlier this year.

County Court at Law # 1 -- Judge Alex Salgado (I)(D) vs. Nathan Moss (R) --I didn't know Judge Alex Salgado at all prior to him taking the Bench in January of 2019 and my appearances before him during his tenure have been very limited.  I have spoken to him in court and he is an incredibly nice man who runs a very fair and efficient court.  He was a prosecutor for nine years (he mentioned to me that many of those years were in Walker County) before taking the Bench.

Nathan Moss is a Felony Division Chief at the Harris County District Attorney's Office and one of the few remaining prosecutors that were there when I was.  He was a baby prosecutor around the time I left.  He's also my neighbor!  Nathan is a personal friend and an extremely intelligent prosecutor.   He's a career prosecutor (as was Judge Salgado before taking the bench).

County Court at Law # 2 -- Judge Ronnisha Bowman (I)(D) vs. Paula Goodhart (R) -- as was the case with Judge Salgado, I did not know Judge Bowman prior to her taking the Bench, and I don't have any experience appearing before her since she was elected in 2018.  Unfortunately, I just don't have much information to share with her because of that.  Don't read anything into that.  I just don't have a basis to give you any information.  I wish I did.

Paula Goodhart is the former judge of County Court at Law #1 who lost her bench in the 2018 Democratic sweep.  She is also a friend who I've known since we were both prosecutors at the D.A.'s Office.  Paula was senior to me at the Office (that's not an age joke) and was a Felony District Court Chief when she left.  She was very well-liked as a judge and has had a very busy and successful defense practice since leaving the Bench.

County Court at Law # 3 -- Porscha Brown (D) vs. Leslie Johnson (R) -- the County Court at Law # 3 bench is an open bench this election cycle due to Judge Erica Hughes leaving the bench mid-term for a Federal position.  The current judge of the court is Ashley Guice, who did not run as a candidate for the permanent position.  As an aside, Judge Guice has done a great job during her brief tenure and I hope she does run for a Bench in the future.

I don't know either Porscha Brown or Leslie Johnson particularly well, but I'm friends with them both.  Both of them are defense attorneys.  I would say that I've known Leslie longer but I probably know Porscha a little better.

Porscha won a very decisive victory in a three-person Democratic primary earlier this year.  She is a public defender with the Harris County P.D.'s Office and I have seen her argue in court.  She's a very impressive and zealous advocate for her clients and she is very well-liked amongst her co-workers at the P.D.'s Office and the Defense Bar, as well.

Leslie is also a respected member of the Defense Bar.  She is married to defense attorney Dane Johnson, who I've known for ages.  I don't have anything negative to say about Leslie at all, but I don't have a whole wealth of knowledge about her, either.   

County Court at Law # 4 -- Judge Shannon Baldwin (I)(D) vs. Zachary Gibson (R) -- I've known Judge Baldwin since she was a defense attorney prior to taking the Bench in 2019.  We were friendly, but not particularly close friends.  I have had the opportunity to appear before her in her court on multiple occasions over the past four years, however, and I can attest to her being a very good judge.  She is serious, fair, and efficient.  I have not had a trial in front of her, but have approached on evidentiary matters and found her approach to be thoughtful, insightful, and balanced.  She has done a great job on the Bench.

I don't believe that I know Zachary Gibson personally, but I'm aware that he is a Harris County District Attorney's Office prosecutor.  I'm not familiar with him but have noticed that there is a commentor on the blog who seems to really dislike him, according to the comments left on other posts.  I can't (and wouldn't) vouch for experiences that aren't my own, but I will say that my positive experiences with Judge Baldwin have earned my vote for her in this race.

County Court at Law # 5 -- Judge David Fleischer (I)(D) vs. Elizabeth Buss (R). Judge David Fleischer is one of my favorite people at the CJC.  We got to be friends when he was running for judge in 2018 and he has done a great job on the Bench. He works so hard to get everything right and it stresses him out so much when he thinks he's messing something up.  He's a good man and a good judge.  He leads from a place of compassion in his decisions but isn't afraid to be tough when the situation calls for it.  I've appeared before him on several cases during his tenure.  I've had wins and losses on issues with him, but he always did what he felt was right in his heart and I admire that.

Liz Buss is a prosecutor with Harris County that I also like a lot.  I've dealt with her on cases in the past and she has been nothing short of friendly, courteous, and fair.  I have absolutely nothing negative to say about her.  

County Court at Law # 6 -- Judge Kelley Andrews (I)(D) vs. Mark Montgomery (R) -- as I mentioned in my February post on the primaries, I've known Judge Kelley Andrews since she was a rookie defense attorney many moons ago, and I think the world of her as well.  She is a personal friend who I enjoy talking to on those rare occasions that I get the opportunity to.  I've also appeared in her court multiple times over the past several years and have enjoyed the way she runs her courtroom.  She calls balls and strikes and lets the attorneys do their job.  In addition to her regular duties, Judge Andrews also helped create (and currently runs) the Mental Health Court for misdemeanor cases.  She is immensely qualified, has done a great job, and deserves to be re-elected.

I do not know Mark Montgomery, and I don't recognize his picture from his website.  He is apparently a retired Houston Police Department lieutenant who practices in multiple areas of law.  His website says that he does some criminal, but, like I said, I don't recognize him.  

County Court at Law # 7 -- Judge Andrew Wright (I)(D) vs. Mike Monks (R) -- In what can only be described as the greatest disparity in hairstyles on the ballot this year, Judge Andrew Wright is running for a second term against longtime defense attorney Mike Monks.  As with so many of the other contests I'm writing about here, both candidates are friends of mine.  I knew Judge Wright before he took the bench in January 2019, but I've gotten to know him better over the years.  As I wrote back in February, he ran for the Bench because he has strong feelings about how the Criminal Justice System should operate and he's made those feelings the backbone of his time on the Bench.  Almost immediately, he let the State know that he would hold them to their obligations to turn over Discovery and follow those duties that they are required to perform under the Code of Criminal Procedure.  He has firm policies in his court and he expects them to be followed.  There's nothing wrong with that, and I admire him for his vision and direction as a judge.

Although another candidate in a race a few years back referred to himself as an "institution" of the courthouse, Mike Monks is truly an institution in our Criminal Justice Center world.  He was an experienced lawyer when I first walked in the door in 1999 and he is a fan favorite for all of us who practice there.  Mike is such an institution at the courthouse that for years, the D.A.'s Office's Halloween decorations consisted of a skeleton wearing a "Mike Monks for Judge" campaign t-shirt that sat on a couch in the reception area.  He's one of the nicest people you will ever meet and someone happy to answer questions for some of us "younger" lawyers.  

County Court at Law # 8 -- Erika Ramirez (D) vs. Mark Goldberg (R) -- well, here's an interesting race that pits two current Assistant District Attorneys against each other.  Democratic candidate Erika Ramirez defeated incumbent Judge Franklin Bynum in the primary and she faces off against Republican Mark Goldberg.

I think the world of Erika Ramirez and she definitely has my vote in this election.  I've dealt with her as a prosecutor and as a friend.  I admire her ethics, knowledge, and compassion.  She has worked hard on the campaign trail and I hope that pays off for her in November.  

By contrast, I am not a fan of her opponent, Mark Goldberg and I base that on several different factors.  Goldberg is a political hire brought in by Kim Ogg.  He doesn't know much about prosecution, and I had a front-row view of that when I had this case set against him in 2020.  I hope you will take the time to read that article if you aren't familiar with the story already.  The short version is that he lied to the court to get out of a Batson violation.  His reputation for honesty hasn't improved any since then.  He lied to the media in the summer of 2019 as I outlined in this post.  In addition to his issues with honesty, Mark also isn't really a prosecutor.  He's a campaign advisor for Kim Ogg who is holding a prosector's pay position so he can have a taxpayer-funded job.

County Court at Law # 9 -- Judge Toria Finch (I)(D) vs. Sartaj Bal (R) -- I can't say enough nice things about Judge Toria Finch, and I'm not alone in that.  When running against her opponent, John Wakefield in 2018, he couldn't say enough nice things about her either.  It was the friendliest campaign I've ever witnessed.   Since taking the Bench, Judge Finch has maintained a cordial and productive court where prosecutors and defense attorneys are glad to practice.  She is kind, fair, and smart.  She's done a great job during her first term on the Bench and she deserves another one.

I don't know her opponent, Sartaj Bal, and I've never heard of him, either.  I don't recognize him from his campaign website and I'm not sure that I've ever seen him in the CJC at all.    His website is ambiguous about what types of cases he handles, but his State Bar profile indicates that he is licensed in a couple of Federal Bankruptcy courts.  I'm not a big fan of lawyers becoming Criminal Court Judges when they don't practice Criminal Law in the first place. 

County Court at Law # 10 -- Juanita Jackson (D) vs. Dan Spjut (R) --  With current County Court at Law #10 Judge Lee Harper Wilson not seeking re-election, County Court at Law # 10 is an open bench in 2022.  My friend, the youthful and vibrant and not at all old-school, Juanita Jackson, is a defense attorney running as the Democratic candidate against the former judge of Court #10, Republican Dan Spjut.

Dan Spjut was elected to the Bench in 2014 and, like Paula Goodhart, lost his bench in the Democratic sweep in 2018.  During his time on the Bench, I don't believe that I ever had a case in his court.  I know that he had a lengthy career with the City of Houston Police Department.  I never heard any complaints about him.  I think I've met him in passing, but I do not know him personally.  I have nothing negative to report.

I've known Juanita for as far back as I can remember and she is a personal friend.  She is a strong and dedicated defense attorney who fights hard for her clients and I have no doubt that she would do a great job if elected.

County Court at Law # 11 -- Judge Sedrick Walker (I)(D) vs.  Dan Simons (R) -- Although I've known Judge Sedrick Walker since he was a prosecutor, I don't know him very well on a personal level.  During his time as a prosecutor, I believe I had one or two cases against him and found him professional and prepared when we talked.  Since he took the bench, I have appeared before him on a handful of occasions and have always enjoyed being in his court.  He is very professional and runs an efficient court.

I've known Dan since his time at the District Attorney's Office.  In 2018, he won the Republican Primary over longtime incumbent Judge Jay Karahan, who had run afoul of the Republican Party because he (gasp!) officiated over a same-sex marriage.  I thought the move local Republicans pulled on Karahan back then was crap and I was disappointed that Dan ran against him for that reason.  It all became irrelevant anyway as Dan lost to Franklin Bynum in the 2018 Democratic Sweep.  I believe Dan moved out of state for a time, but he has been back in Harris County and practicing as a defense attorney for a few years now.

County Court at Law # 12 -- Judge Genesis Draper (I)(D) vs. Matt Dexter (R) --  If you are a reader of this blog, you probably know that I'm a Super Fan of Judge Genesis Draper.  I didn't know her prior to her taking the Bench but had the opportunity to pick a jury in front of her in the above-mentioned case against Mark Goldberg.  Judge Draper was amazing then as she deftly dealt with suppression and Batson issues that were brought before her.  She has a strong background in criminal defense and is an amazing judge.  Since trying that case with her, I've had the opportunity to talk to her on many additional occasions about the law and the state of the Criminal Justice System.  I admire the passion and dedication she has for Criminal Justice and wish she would seek an even higher office.  She's the type of leader that the world needs more of.

My old buddy, Matt Dexter is running against Judge Draper for Court #12, and he and I go way back.  We became good friends back in 1999 when he was still with HPD and we bonded over the time-honored tradition of mocking Adam Brown.  Matt is a great guy and a good friend.  Most of his criminal defense work has centered around the juvenile system, however, and I'm kind of surprised he didn't run for a bench in that arena.  Although I have nothing negative to say about my friend, the truth of the matter is that I'd vote for Judge Draper even if she was running against me!

County Court at Law # 13 -- Judge Raul Rodriguez (I)(D) vs. Lance Long (R) -- The last three races I'm profiling here are tough ones for me because I think all of the candidates running are great ones.  Lance Long is a former-Harris County Assistant District Attorney who was inexplicably let go as part of Kim Ogg's ridiculous Bloody Friday purge of experienced prosecutors when she took Office.  He is one of the smartest people I've ever met and I sat with him on the one and only death penalty case I ever tried as a prosecutor.  Since leaving the Office, he has served as a prosecutor in other counties trying serious cases.  I do think that he would be kind of bored trying misdemeanor cases, since Capital Murder is pretty much his specialty, though.

As much as I love Lance, Judge Rodriguez is arguably one of the best judges on the bench in the CJC and easily one of the most popular.  In addition to being one of the nicest people that I've ever met, he's also an excellent judge.  He runs a very efficient court and he calls balls and strikes without playing any favorites.  I had a lengthy contested Motion to Suppress in front of him, and although he ultimately ruled against me, I had no doubt that he had attentively listened to all of the involved witnesses and parties and carefully reviewed the applicable law before doing so.

County Court at Law # 14 -- Je'Rell Rogers (D) vs. Jessica Padilla (R) -- the race for County Court at Law # 14 is technically an open race with no incumbent since Democratic candidate Je'Rell Rogers defeated current Judge David Singer in the March primary.  As I wrote back then, I'm a big fan of Je'Rell both professionally and personally and I think that he would make a great judge.  He is currently a Chief Prosecutor in the 180th District Court and a recovering former Notre Dame mascot.

I've known Jessica Padilla since she was baby prosecutor at the D.A.'s Office, a year or so behind me in seniority.  She's a wonderful and sweet person that I think would also make a great judge.  She prosecuted for several years but has been on the defense side of things for quite some time now.  She's very involved in the Republican Party of Harris County.

County Court at Law # 15 -- Judge Tonya Jones (I)(D) vs. Xavier Alfaro (R) --  I did not know Judge Tonya Jones when she ran for the Bench in 2018, but I supported her because I knew that she would be a far better choice than her opponent, Roger Bridgwater.  I'm glad I made that call then because I've had the opportunity to appear in her court since and she's a great judge.  She runs a very open and fair courtroom and is well-liked by both the Defense Bar and the State.

Xavier Alfaro (aka X-Man) is also someone that I think very highly of.  I first met X when he was a prosecutor in Harris County.  He was a defense attorney for a while and then went to work for Brian Middleton at the Fort Bend County District Attorney's Office, where he heads the Misdemeanor Division.  Every time I've dealt with Xavier, I've been glad that he was the person I was dealing with.  He is someone that knows the law and how to follow it, but also strongly appreciates fairness and equity in making his decisions.

The 2022 Election: Overview - Part One of Three

Definitely, my least favorite part of this blog has become the expectation that I do a write-up on the candidates when election time comes around.  Y'all have no idea how much it stresses me out!  The reason it stresses me out is that in the vast majority of the races, I have two friends running against each other.  Usually, those friends are great people and usually, those friends are both very qualified for the office that they seek.  That's a no-win situation for me to write about and that is usually compounded when I don't make a clear choice and get called out for wimping out.  To paraphrase the late, great Ben Parker, with great blogging comes great responsibility, unfortunately.

While I will reluctantly acknowledge that I sometimes "wimp out" on making a clear choice between two people that I consider to be friends that are qualified for the Bench, I do want to make it clear that I am completely honest about a person's ability to be an elected official even if they are a friend.  That situation hasn't come up often in the fourteen years that I've been running this blog, but it has happened.  On more than one occasion, I've lost a friend for being honest about my thoughts on him or her as a candidate.

I've also been clear when I've supported who I thought was the better candidate, even though I knew they didn't have a snowball's chance in Hell of winning.  Over the years, I've been treated with varying degrees of warmth by the candidates who ultimately prevailed despite my endorsement of their opponents.   

I write all of this to say to my critics who get mad when they feel that I didn't say enough about one race or the other:  it isn't always pleasant, and I will be more than happy to give you a free tutorial on running your own blog if you would like to share a different message than mine.  If Don Hooper can do it, so can you!

So, moving on . . . 

I broke these write-ups into three parts.  This overview, the District Court Races (and District Clerk), and the County Court Races.  Otherwise, it would be too damn long.

I wanted to do an overview this year because I wanted to point out (yet again) how much misinformation there has been this year about the Criminal Justice System, and how much it bothers me.  I have watched some very honest, brave, and good judges get blasted time and again in the media for doing the jobs that they were sworn to do.  I've seen insanely irresponsible reporting lead to death threats against judges for following the law.  I've seen them take more blame for murders than the people who actually committed them.  The vilification has been off the charts, and completely and totally undeserved.

I recently did something unusual by having a sit-down lunch with someone I had been arguing with on Twitter about these issues.  It was a strange set of circumstances that led up to the lunch.  A blowhard who calls himself "Common Sense Bob" on Twitter had initiated the idea by threatening to show up at my office with some "friends," and I countered by telling him I would provide food.  Unsurprisingly, the Bob didn't show up, but one of the other people did and we had lunch to discuss the criminal justice system.

I think it is a testament to what a toxic environment Twitter is because I actually enjoyed the lunch quite a bit.  We fought like children on Twitter but had a great talk in person.  We talked for about thirty minutes about things we had in common before we moved on to criminal justice.  We listened politely to each other's thoughts on the system.  Her experiences as a victim of crime understandably influenced her thoughts in a way that made perfect sense.  She agreed with me that I thought the judges were getting all the blame while the District Attorney's Office wasn't being held accountable for their part in the rise of crime.   We disagreed on bond reform, but the conversation was cordial and I know that I was glad we had had it.  I don't know that it changed my position on anything, but it added to my perspective on many things (including how double-parking as a public official should be considered political suicide).

So here are some of the takeaways that I wanted to point out before talking about the judges themselves:

1.  The Relationship between County Judge Lina Hidalgo and Criminal Court Judges ends at Party Affiliation.  Love her or hate her, Lina Hidalgo's title of judge does not affiliate her with actual presiding judges in criminal courtrooms.  They are all Democrats and that's where the similarities end.

I've got no problem with Judge Hidalgo and as someone with inside knowledge about her staff being indicted, I can tell you that those charges are utter horsecrap.  There is a difference between doing something that is bad optics and something that is illegal.  Hidalgo may have stepped in some crap on optics, but she didn't break the law.  Neither did her staffers, and it turns my stomach to see them being paraded around on political commercials as evidence of corruption.  

That being said, I'm nowhere near as invested in the Hidalgo/Mealer contest as I am in the Criminal Court Judges race.  If you want to hate on Hidalgo, knock yourself out, but that shouldn't reflect on your choices for the other judges.  They have completely unrelated jobs.  If you think that Hidalgo is "defunding the police" as brainiacs like Kim Ogg and Mark Herman would have you believe, you are wrong, but even if you were right, that shouldn't reflect on the Criminal Court Judges.  That association would be like deciding you hate Whataburger because you once got food poisoning at McDonald's.  

2.  The Rise in Violent Crime is a Nationwide Trend and Houston is no different than other major cities around the country.  It would be comical if it weren't so sad that so many people tend to think that Houston is the only city in the country or world experiencing a rise in violent crime.  The pandemic has led to joblessness, poverty, housing crisis for low-income families, depression, and desperation. These are the pillars of a rise in crime - violent and non-violent alike.  The Republican Party of Harris County has done a spectacular job of somehow juxtaposing a worldwide epidemic with the local Democrats when it comes to blameshifting.  Really, the job they have done has been quite stunning.  I'm sure that you have all seen the signs in front yards that say "Tired of Crime?  Vote Republican."  As if there was no crime in the decades when Harris County was a solidly Republican county.

3.  Misdemeanor charges are not usually predictors of future violence.  One of the most eye-rolling things that I see on the news is when there is a murder arrest and they point out that the accused perpetrator was out on multiple misdemeanor (or even non-violent felony) bonds, as if the misdemeanor judges should have some Nostradamus-like wisdom about what a person with a theft charge is going to do if released upon society.  I do acknowledge that misdemeanor Assault-Family Violence cases are an exception to this, but they are still misdemeanors.  They can have all kinds of conditions that prohibit the Defendant from contacting the Complainant, but they aren't going to be held at No Bond.  If Republican judges do end up sweeping, don't expect that to change.

4.  Judges are not supposed to be an arm of the Prosecution.  I have plenty of friends running for judge as Republicans this go-round and they all seem to have jumped on this bandwagon idea that the Republican Party is selling about judges being responsible for stopping crime.   That makes for a strong and effective campaign message and all, but it is absolutely contrary to what a judge is supposed to do in his or her job description.  Judges are there to call balls and strikes like an umpire in a baseball game.  They aren't there to try to help push one side over the other.  Any judicial candidate that is embracing the idea that it is their job to "stop crime" is basically casting aside their neutrality in advance, and that's troubling to those who like our judges fair and neutral.

5.  The Republican Crime Message has absolutely been Effective.  Although I absolutely disagree and detest the message being sent out that a rise in crime is somehow the fault of Democratic judges, there is no denying that the message has been an effective one.  Harris County District Attorney Kim Ogg (who is noticeably not on the ballot this term) has spent thousands and thousands of dollars pumping money into CrimeStoppers so that her friend Andy Kahan could get out the message that a rise in crime isn't the fault of a weak D.A.'s Office, but the fault of judges.   I mean, gosh, if even a Democrat like Kim Ogg is saying that other Democrats are not safe for Harris County, then it must be true, right?  Mattress Mack is helping pay for commercials during every Astros playoff game and those commercials alternate between talking about how CrimeStopppers needs more money because Harris County is so unsafe and then accusing Lina Hidalgo of being a criminal. 

The Republican message is out there loudly and effectively and the local Democratic Party's response has paled in comparison.  The non-Presidential election years have historically been good for Republicans (with the exception of 2018 when the Beto vs. Cruz race brought the Dems to the polls in droves), and I expect that the margins will be far tighter this year.  I honestly have no prediction on how this year will turn out.  Nothing would surprise me.

Whatever your preferences are this election season, please make sure to vote.  Make sure to tell your friends and family your thoughts on the Criminal Justice System and the candidates on the ballot.  Tell them to get out there and vote, too.

Friday, October 7, 2022

Mark Herman's Shameless Publicity Stunt

It always seems like an insincere platitude whenever a defense attorney leads off with talking about his or her respect for cops, but bear with me for a moment.  

I grew up idolizing the police and wanted to be an FBI agent from about the age of ten.  There wasn't a true crime book or police procedural drama that I didn't watch wanting to be just like those guys.  My biggest professional mentor in my life was HPD and the reverence I have for that department has extended well past my tenure as a prosecutor.  I admire the work they do.  I admire their selflessness.  I admire their bravery.

But nobody's perfect.

And if I were to have to pick the biggest flaw that I see as a character trait in many of the police officers that I have known and admired over the years, it is that police have a real big stumbling block when it comes to ever admitting that they've done something wrong.

And that's a big problem when the decisions that your profession makes can literally destroy the life of general citizens.

Any lawyer who has a spent time in the criminal justice system -- whether prosecutor, defense, or both -- could definitely tell you some epic stories where a police officer got a little too aggressive in his or her pursuit of "justice" to the degree that it defied the law or Code of Criminal Procedure.  My personal favorite is a story told to me by my buddy Ed McClees, about a police officer with the H.I.S.D. police department who called the Harris County District Attorney's Office Intake Division looking for charges.

The very aggressive officer told Ed that a kid in a school classroom had turned off the lights in the classroom, and the whole class started acting up.  What charges did he want Ed to file on this young student?  He wanted Inciting a Riot.  True story.  Ed less-than-politely declined.

In a less humorous incident, Luci Davidson was once appointed to represent a man charged with possession of a controlled substance.  The probable cause that the arresting officer listed for why he had detained and subsequently searched the defendant was that the defendant had been "walking in the roadway where a sidewalk was provided" (and yes, that is a real Class C offense and one that police officers use extremely frequently to stop and search people in, ahem, "less affluent" neighborhoods).  Luci's client told her that he was walking in the street, and yes, there was a sidewalk provided.  However, a resident had parallel parked his 18-wheeler in front of his house, thus making the sidewalk unpassable.  A Google Maps satellite photo showed the 18-wheeler in the area in question and the case was dismissed due to no probable cause.

A week or so later, the same defendant reached out to Luci through his lawyer.  He had been arrested again by the same officer in the exact same spot and allegedly carrying the exact same amount of crack -- down to 1/100th of a gram.  Luci reached out to the new prosecutor and the case was dismissed for no probable cause again.  And last I heard, the police officer in question had drawn himself an internal officers investigation.

The point being that cops aren't perfect and that the Criminal Justice System has measures in place to make sure an injustice doesn't happen when a cop is wrong -- or even dirty.  But, as I mentioned before, cops don't like being told they are wrong.  They don't like it at all.  Especially not when they are being told that they are wrong by someone they consider to be some damn liberal judge who clearly must hate the police if they dare to disagree with them.

Which brings us to Harris County Precinct Four Constable Mark "Hey! Look at Me!" Herman, who held a theatrical press conference yesterday to announce that these damn liberal judges had just disagreed with him too many times by finding no probable cause on his deputies' cases, and dammit, he was just going to refile them all.

Oh boy.  Where to begin?

I guess let's start with what Probable Cause is.  If you aren't a lawyer, you should know that the legal system has different "standards of proof" that must be shown for something to happen in the legal system.  You've probably heard all of those different levels of standards of proof before.  We all know that before a person can be convicted of a crime that it must be proven "beyond a reasonable doubt" and that's literally the highest standard of proof listed in the legal system.  A slightly lesser standard of proof is labeled as "Clear and Convincing Evidence," which is the standard the Family Courts must find before they strip a child away from his parents for an allegation of harm to the child's well-being.  Below that is a "Preponderance of Evidence" which essentially translates to "more likely than not" or "just a hair above 50% convinced" and that's the standard of proof used in civil lawsuits -- from a small claims court fender bender to a multi-million dollar lawsuit.

Somewhere below (far below) is Probable Cause.  Probable Cause is what is required by the 4th Amendment to the United States Constitution to protect against unreasonable searches and seizures.  It isn't a very high standard of evidence that police really have to meet before arresting and/or searching a person.  In essence, it just means that the police officer has to be able to state a legal reason that he believes that a person has committed a crime.  

It doesn't take much.

When a judge finds that a police officer's arrest was done without Probable Cause, they are basically telling them that their case never even got off the launchpad, and that's usually with good reason.  I've had plenty of cases end when a judge found no probable cause on a case.  Here are some examples:

1.  I've had several cases where the police arrested clients for Unlawful Carrying a Firearm despite the client having a Concealed Carry License.  The officers in question thought that their understanding of the law negated the power of CHL.  They were wrong.

2.  Plenty of other cases were filed where everyone in a car was charged with possessing the same physical drug despite there being no links to the person charged.  Cops will routinely file cases where the "drugs were found in the center console where everyone could have potentially reached them."  We call that "no affirmative links" in the criminal law business.

3.  They stopped the person for no legal reason.  See the example from Luci Davidson above.  I can also recall a time when I was a very young prosecutor when a cop called intake when he had stopped and searched a black man walking through River Oaks.  When I asked him why he had stopped him, his response (no shit) was "Well, it was River Oaks.  You know . . . "  I did not know.  Charges rejected for No Probable Cause and the issue was reported to my supervisor.

4.  The search had no Probable Cause.  I once had a cop who had responded to a party at a house where there was reported underage drinking.  They went inside the apartment, which was dicey but probably legal.  They then started searching all the purses that party-goers had left in a bedroom which was when they found weed in a purse later identified to be my client's.  No probable cause on the search meant the drugs were excluded which meant that my client was "no PCed" (it's a verb for some of us) and sent home.

Unfortunately, there are plenty of folks out there who have no interest in getting bogged down in the technicalities of Constitutional Law or the Penal Code or the Code of Criminal Procedure, and dammit, if a police officer said this person needs to be arrested, then they better stay arrested!  They say "if you broke the law, there is no excuse" without realizing the irony of their statement, since making an arrest without Probable Cause is, um, well, breaking the law.  

These are the folks that Mark Herman's silly little press conference was designed to fire up, and boy did it work.  The Lock 'Em Up crowd was all over it on Twitter, including this Mark Herman Superfan.

This non-lawyer thinks that judges are dismissing cases "lazily."  When "clearly the DA had already acc charges."  

Oh dear Lord.

So, next, we move to the D.A. Intake.  It's been a minute since I wrote about what D.A. Intake is like.  It's been a lot of minutes actually since I wrote this post back when I was still a prosecutor!  I'm sure the intake system has changed somewhat over the past (good God, has it really been 14?) years.  But suffice it to say, that intake is a triage system where prosecutors get a very brief, one-sided view of a case from an officer.  There is no defense attorney providing a counter-point.  There is no judge listening in.  There is no scrutiny.  And there is no obligation for the police officer to provide ALL of the details.  If you are a random citizen that thinks that crap charges don't come out of intake every hour on the hour, you are seriously deluding yourself.

This leads me to my next topic, which I will loosely title "How to Talk to Your Law Enforcement Fans about Precinct Four."

It is an unspoken truth in the Harris County Criminal Justice System (on both the prosecutorial and defense side) that some law enforcement agencies are just, well, better than others when it comes to doing their jobs.  If your client got charged with a crime by the Houston Police Department or the Harris County Sheriff's Office, odds are that the officers involved knew what they were doing and probably did it pretty well (usually, not always).  Some of the bigger municipalities in Harris County are generally pretty competent too.  Pasadena, Baytown, Deer Park, etc.  There's a sliding scale amongst departments and there have been more than a few attempts to get a Top 30 list on paper.

Unfortunately, in the lower tier of this is the Precinct Four Constables' Office.  When I was a prosecutor, there was a running joke that the worst thing you could hear on a phone call at Intake was "This is Deputy So-and-So from Precinct Four, and I've got a clusterfuck for you . . . "  Now, obviously, this doesn't mean that all Pct. 4 deputies are bad.  I have a very dear friend of mine who has worked there for a long time and she is very smart and I wouldn't want to hurt her feelings for the world.  But that Department has had more than its fair share of problems over the years, and I'd be lying if I said that I didn't get excited whenever I have a new case investigated by Precinct Four.  The odds are just so good that there is going to be a colossal screw-up in there somewhere.

Part of the reason is that the position of Constable is an elected position and Precinct Four covers an extremely conservative area in Harris County.  It is a natural flow of events that they are going to elect the most law-and-order-tough-talking dude they can to be Constable, regardless of how little he actually knows about the law and procedure.  In that, Mark Herman is the perfect match for the territory.  Intellectual honesty in policing has never really been his strong suit and his message of "guilty is guilty, damn the Constitution" is music to many a voter's ears out there.  

Let's go back to Twitter for a second.

Here, a defense attorney is defending 339th District Court Judge Te'iva Bell who is very highly regarded for the job she has been doing since taking the bench two years ago.  She holds cops and prosecutors to the standards that they are supposed to be held under the Constitution, Penal Code and Code of Criminal Procedure.  She also has no problem dropping the hammer on defendants who have been proven guilty beyond a reasonable doubt.  She is no pushover by any stretch of the imagination.  But in the mind of the Mark Herman Superfan, she found no probable cause on too many of Pct. 4 cases and that makes her "trash."

If you want to clearly illustrate that you have no understanding of the Criminal Justice System, call a respected judge "trash" because she didn't do exactly what the nice policeman wanted her to do.  Even when that nice policeman is just a right-wing politician who doesn't understand or doesn't want to follow the actual law.

More from the SuperFan:

"Cupcake"?  I think she's flirting with me, but I can't let myself get distracted here.  I suppose it didn't dawn on her that if it is the "same judges" (plural) finding issue with the same Constable's Office (singular), that maybe, just maybe, it might be the Constable screwing these cases up.

Another issue with Precinct Four is that as a politically elected office, the elected official (that being, Mark Herman) gets to have his own standards of who does or does not qualify to come work for him.  Yes, they have to be a licensed peace officer, but beyond that, it's open criteria.  There's a lot of cronyism there and you will also find that many some of the employees were either rejected or even terminated by other agencies.  It is also not uncommon for Constable offices to "hold the Commission" for licensed peace officers as "reserve deputies" so that those "reserve deputies" can work lucrative extra jobs doing security for more money.  

You're never going to see Precinct Four working a murder or a serious sexual assault case.  When they are the first responders on serious cases, they generally secure the scene and then call in the Sheriff's Office.  There's a reason for that.  When you are dealing with Precinct Four, you aren't exactly dealing with the Navy SEALS of law enforcement.

Which makes Mark Herman's press conference yesterday all the more flummoxing.  I wasn't there, but according to St. John Barned-Smith's article (that I linked to above despite it being authored by St. John Barned-Smith.  Just kidding, Sinjin!):
"This emboldens the criminals," Herman said.  "The court system is basically telling these criminals that you can break the law, and we'll just say 'there's no probable cause' and we'll dismiss your case."

First off, judges don't dismiss cases except in extremely rare circumstances such as a finding of a Speedy Trial violation (which almost never happens).  There's a big difference between a dismissal and a finding of No Probable Cause.  You would think that the elected Constable would know that.  Secondly, when a judge finds No Probable Cause on a case, he or she isn't telling a "criminal" that they can break the law.  

They are telling a cop that he can't break the law.

Sinjin's article also quoted controversial (and noted "weird dude") Judge Franklin Bynum, who was 100% correct in his assessment of Herman's claims:

"If constables did better work, and the DA did a better job supervising work of constables before make(ing) formal filings, we wouldn't have these kinds of problems."

Say what you want to about Judge Bynum, but he hit the nail on the head with that statement.  This ain't a judge problem.  This a constable problem.

The most concerning part of Mark Herman's publicity stunt yesterday is the bigger issue it speaks to, which is cops ignoring judicial findings to just keep doing whatever the hell they want to.  I suppose in an era where candidates no longer "accept the findings" of an election, it should be no surprise that a political "top cop" would announce that they don't accept the findings of a court.  I suppose if you are a Constable SuperFan, you are completely at ease with having blind faith in the police.  Maybe you would be surprised to know that not even prosecutors have that same blind faith.  At least not the good ones.

Herman refiling cases where a judge has already found no probable cause is the equivalent of a petulant child refusing to accept a parent's decision that they don't like.  I'm not clear on whether or not Kim Ogg's District Attorney's Office is participating in Herman's political theater, but if they are, shame on them.  Herman repeatedly filing cases on citizens even after a judge has shut down that case is Official Oppression.  Don't look to Kim Ogg to do anything about that, though.  It would cost her votes in Precinct Four, and that's what really matters, isn't it?

I do want to clarify one thing.  A case where No Probable Cause is found can be salvaged, both legally and ethically.  Cops can go back and do more work that can ultimately satisfy the judge that Probable Cause does, in fact, exist.  There's absolutely nothing wrong with that.  It just takes more hard police work and some acceptance that just because a policeman says something doesn't necessarily mean that it is true.

But that's not what Herman is having his officers do with this stunt.  He's just having them refile the same shitty charge (that was already rejected) once again.  

And that's true laziness, Cupcake.

The most concerning thing that came out of Herman's stunt yesterday was how indiscriminately he is refiling these cases where he sees a dismissal was filed (by the prosecutors, not the judges, just FYI).  In one of the cases, a person had entered into a Pre-Trial Intervention program that he had successfully completed and the case was dismissed.  

Herman's office refiled it anyway. 

To put that in simpler terms, Herman filed a charge.  The person was arrested.  The person accepted responsibility.  The person accepted a punishment that gave him the opportunity to get his case dismissed after completing ALL of those requirements.  The case was dismissed after the person did everything asked of him.  And then the elected Constable of Precinct Four charged him AGAIN with the exact same crime because he was so caught up in an asinine publicity stunt that he didn't pay attention to the history of the case.

That level of incompetency is jaw-dropping.

Arresting a citizen for the same crime twice so you can make a political statement is Official Oppression.

And I think there is plenty of Probable Cause to believe that.

Wednesday, October 5, 2022

Dudegoggles and the Guajuardo Hearing

As most CJC regulars know, there was an interesting hearing in the 263rd District Court on September 21st & 22nd regarding a Motion for Change of Venue in the State of Texas vs. Alex Guajardo.  Defense counsel Justin Keiter had filed the motion in response to pre-trial publicity given to the case by the Harris County District Attorney's Office's Communications Division and elected District Attorney Kim Ogg, herself.  The hearing was a highly watched event due to the fact that Keiter had subpoenaed Ogg to testify.

Although Ogg was definitely the anticipated main attraction of the hearing, the opening act was Dane Schiller, Ogg's Director of Communications.  In my opinion, Schiller's testimony would ultimately prove to be far more entertaining and enlightening than Ogg's.  Schiller unabashedly admitted to several jaw-dropping revelations that were reminiscent of Watergate-era "dirty tricks" that he and the Communications Division employed in an effort to make Kim Ogg more likable cast the Office in a positive light.

First, a little background on the evolution of the "Communications Division" of the Harris County District Attorney's Office . . .

Back in the olden days, there was no such division that I was aware of.  During my tenure there (1999-2008), reporters usually contacted the Office when they had a story they wanted to report on, and that was usually a direct reach out to the prosecutor or staff member involved.  If I tried a high publicity case, the reporters called and talked to me.  It was simple and straightforward.  There was no media "flak" involved.  If they wanted to ask about a policy, they called the District Attorney himself.

Towards the end of my time at the Office (bear with me, it may have been right after my departure), I believe that the Office designated an official spokesperson to help coordinate media inquiries.  If my memory serves, that person was Donna Hawkins, who was a prosecutor who was elevated to that role.  She was followed by former KHOU (and KBTX in Bryan!) reporter Jeff McShan.  I'm definitely fuzzy on the timeline here because I was no longer with the Office, but I'm confident in saying the "Communications Division" was just a tiny portion of the Office, housing only one (maybe two) employees.  I believe that would be the case through the end of the Devon Anderson term.

When Kim Ogg took Office on January 1, 2017, she revamped the idea of the Communication Division.  What had previously been handled by one or two employees has now swelled to far more as the Division filled with a combination of former-Ogg campaign workers, reporters, and aspiring politicians who had failed to get elected or re-elected.   The most recent Office organizational chart I have is from December of 2021, and it listed five employees in the Communications Division and an additional four in the "Community Engagement" Division.

The next time Kim Ogg shows up at Commissioners' Court claiming to be defunded and begging for more money for more prosecutors, I hope you will take note of the large number of employees she's paying with her current budget to get her re-elected "promote the Office."  And that's just a list of those actually in the division.  It doesn't account for folks like Mark Goldberg, former HPD chief Clarence Bradford and some others who seem to have some fairly fuzzy lines when trying to outline their job descriptions.

Curiously, the last job that "Community Engagement Supervisor" Anna Carpenter had before being hired by the District Attorney's Office was Campaign Manager for Kim Ogg. Here's a screenshot from her LinkedIn page.

That's a really great gig to get between political seasons!  Glad we taxpayers could help out.

But I digress.  Back to the hearing . . . 

As I was saying, my dear friend Dane Schiller (whom prior to the hearing, I had never actually met in person) was the first witness called to the stand by Keiter.  If you recall, I had written this post back in January about Dane and the fact that I believed him to be exceeding the parameters of his job description by trying to poison legitimate criticisms of the D.A.'s Office with often anonymous personal attacks.  

Keiter did a great job of asking Dane a line of questions to illustrate how the District Attorney's Office under Kim Ogg (and Schiller's Communications Division) go overboard in attempting to "inform the public" with their message.  Dane was clearly comfortable on the stand, grinning from ear to ear as he answered Keiter's questions.  He acknowledged that his job as the Director of Communications his duty was to inform the public about how the District Attorney's Office worked and what was going on at the Courthouse.  He disagreed that multiple press conferences and other media leaks about individual cases were poisoning the well of potential jurors that could ultimately be sitting on those cases.

Keiter then shifted to Dane's methodology for doing his leaks and asked if Schiller had ever utilized another person's identity online to spread his message.  Dane appeared confused and denied having ever done so, qualifying the answer that he had never stolen someone else's identity.  Keiter didn't follow up by asking him if he had created a false individual altogether, like say . . . .Jake Mattius, and the questioning continued.  A few questions later, Schiller apparently thought better of his earlier answer and noted that he does sometimes post online with a "handle" that isn't his real name.

And when Keiter asked, Dane admitted that his online handle was "Dudegoggles."

And that was when things got fun.

The Houston Chronicle's website makes it really easy to click on a person's online handle and have every single comment they've ever written on the Chronicle website show up in chronological order.  As soon as Dane confirmed his online handle under oath, that's exactly what reporters began doing.  None of this was a surprise to me, as noted above, I had accused Dane of being "Dudegoggles" way back in January.  But reporters, like Keri Blakinger and Nicole Hensley were soon publishing on Twitter and other locations some of Dudegoggles' greatest hits, including one where he called judges "clowns" and clearly blamed them for the "crime wave" that Kim Ogg and Crimestoppers have been trying to sell to the general public.

Keiter had the opportunity to ask him about all of these posts.  He also asked him if other members of the Communications Division had online handles where they attacked enemies of the office as well.  He specifically asked if Anna Carpenter was known for posting on Twitter under the handle of "ShePersisted."  Schiller indicated that he didn't know, but that's okay.  I know.  I know because when not being blasted by "Dudegoggles," I've been blasted by "ShePersisted."  ShePersisted and I have some mutual friends on Twitter, so it didn't take long to figure out who she was.  

So rude, Anna. So rude.

The childish antics of Dane Schiller and Anna Carpenter would be no different than those of thousands of other online trolls who bash each other with insults and dishonest statistics online each day, except for the fact that they are doing this as part of their taxpayer-funded jobs.  At some point one has to wonder what exactly smearing critics, bashing judges, and trying cases in the media has to do with the job of being a prosecutor.  The answer, quite simply, is absolutely nothing.  And while we are on the topic of things that aren't in a prosecutor's job description, neither are mandatory appearances to register voters in the name of the elected District Attorney.

Anyone who has half a brain realizes that neither the Communications Division nor the Community Outreach Division have a damn thing to do with criminal prosecution.  They are simply a taxfunded re-election committee that operates year-round for candidate Kim Ogg.  It gives a job to cronies who, in return, do everything they can to keep their boss employed.

So, what does Kim Ogg have to say about this?  As I mentioned above, she was supposed to be the main attraction in the Guajardo hearing, but she was far more polished than Schiller in her responses.  She spent all of about fifteen seconds pretending to be cordial towards Keiter before losing her patience with him. (NOTE:  I get it, Kim.  I was Keiter's chief once.  Trust me, I get it.).  But although she failed to keep her cool, often responding with smart-ass quips to Keiter's questions or pretending not to understand them, she didn't unabashedly admit to pulling childish tricks like Schiller.  Interestingly, she claimed to not know that Schiller was posting anything as "Dudegoggles" on the Chronicle website -- something that no one in the courtroom believed at all.

What Keiter did with Ogg's testimony was far more interesting, however, as he sought to get the elected District Attorney to acknowledge that she had a relationship with Houston Crimestoppers that she utilized to create a campaign against sitting criminal court judges.  Ogg refused to make such an acknowledgment and characterized her press conferences and involvement with Crimestoppers as nothing more than good old-fashioned crime fighting.

Keiter pointed out misleading information that Ogg had signed off on in an amicus brief opposing bail reform, where she had made untrue representations in a Federal case.  Keiter pointed out speaking engagements Ogg had tried to get for Crimestoppers to get her message of dangerous judges out.  Keiter showed Ogg at a press conference about his client.  He did a good job of illustrating that in Ogg's version of criminal justice, it is more about hype than results in a courtroom.  He also pointed out that her Office's success in the courtroom didn't exactly live up to the hype Ogg was promoting outside of it.  

Whether or not Keiter's Motion to Recuse will be granted won't be answered immediately.  Judge Martin said she would rule on it in November.  Win, lose or draw, I think Keiter did a good job of accomplishing what he sought to prove.  Kim Ogg's Communication and Community Outreach Divisions were shown to be spin machines that distanced Ogg from her own office's failures.   Losses in trial, missed deadlines to get people indicted, and motions to hold defendants at no bond were glossed over by a PR machine designed to shift the blame to someone else while scaring the public about how dangerous Houston had become.

And if in the process of doing all of that public blameshifting, a Defendant's rights to a neutral jury got compromised, so be it.

One of the best moments in the hearing was when Keiter read Kim Ogg's acceptance speech from 2016 back to her.  He noted that she promised the defense bar fairness and "evidence-based prosecutions" in her administration.  He asked her if she still agreed with that promise.  She said that she did.

No one in the courtroom believed her.

When you have true evidence-based prosecutions, you don't need hype.  

You don't need spin.

And you damn sure don't need Dudegoggles.

Saturday, August 6, 2022

Kim Ogg blames the Judges . . . yet again

It's just so damn hard being a prosecutor these days.  

At least, it is in Harris County.

It was so much easier back when I was there.  Our judges were almost ALL former prosecutors.  The rulings all went our way.  We had people who trained us on how to try cases.  We went to trial a lot.  We won a lot.  It was crazy!  When I asked my old division chief researched what the win/loss ratio was during our tenure at the Office back in the day, she told me I learned that it was somewhere in the low to mid-90% win rate.

These days, those stats are a bit different.  My friend, Jeff Ross, at his Show Me the Justice blog keeps a running tab of the win/loss column.  Here are the current stats for 2022 as of this writing:

That translates into a little better than 67% win rate for the State.  If this was a report card, it would be a failing grade.

A quick glance at the wins and losses for last week over at Show Me the Justice profile five guilty verdicts for the State and seven not guilty verdicts for the Defense Bar.  Yikes!  That's a 41% win rate.  On Friday, the Defense Bar had three not guilties and one mid-trial dismissal.  I don't know what the final stats for the week are yet, but that was definitely a bad day for Kim Ogg's office.

There are a variety of reasons why a case tanks in a trial, but they tend to fall under two main branches in my experience:

1.  The case could have been tried better; or
2.  The case shouldn't have been tried in the first place.

Of the two choices, the latter is the usual culprit. 

In an ideal world (that does not exist), prosecutors should only be going to trial on cases that they know good and well they will have no problem proving to a jury beyond a reasonable doubt.  In that ideal world, a not guilty means the prosecutors got it wrong when they accused the Defendant to a jury.  All of those opportunities to have not filed charges, gotten the case no billed at Grand Jury, or to have just dismissed the damn case were not taken and the jury just did what the prosecutors should have done in the first place, right?

Of course, the ideal world isn't a fair comparison and any prosecutor who has never lost a case hasn't been doing the job long enough.  It happens.  If it hasn't happened yet, it will.  As one of my colleagues at the Office once remarked after a tough loss, "you aren't a real prosecutor until you've lost a murder case."  Statistics don't always tell a complete story.  A prosecutor who has lost a case or two isn't a bad prosecutor.

But when we start looking at some pretty overwhelming numbers like 67% or 41%, we are getting the message that the Great State of Texas (as represented in Harris County) is getting it wrong somewhere between one third to one half of the time, there may be a little bit of a cause for concern.

Could some of those cases have been tried better?  Possibly.  Given the fact that the District Attorney's Office under Kim Ogg started off by firing roughly 40 experienced prosecutors (and subsequently running off countless others over the past five years), there isn't exactly an abundance of teaching going on in the building.  Any good trial lawyer will tell you that we steal shamelessly from other lawyers when it comes to what we do in trial.  When I was there, I had the opportunity to learn from prosecutors who had been there for over thirty years.  These days, rookie prosecutors are being "trained" by lawyers that started at the Office last year.  

But the far bigger problem is that bad cases are going to trial when they should have been dismissed, no billed, or never filed in the first place.  That doesn't necessarily mean that the Defendant is factually innocent, but it does mean that the evidence wasn't there beyond a reasonable doubt when the jury was sworn in.  From an ethical standpoint, if that's the case, the prosecutor is duty bound to dismiss.   

Unfortunately, dismissing a case leads to having explain why the case got dismissed to a supervisor -- maybe even someone in Kim Ogg's command staff.  Maybe even to Kimbra, herself -- and that is a scary proposition.  When your boss has the power to fire you and your boss is mentally unstable when displeased, maybe it would be better to just take that case to trial.  

Who cares if you get your ass kicked in trial?  At least you still have your job.

Why were the stats better when I was a prosecutor?  It was because we knew that we could dismiss a shitty case that we couldn't prove and not have to worry that we would get in trouble or fired over it.  It was ALMOST like our supervisors (and the elected District Attorneys themselves) trusted us to do the job that they hired us to do.

So, what's the Ogg Administration's answer to why trials aren't going so hot for them?  Follow these simple steps:

Step 1 -- run a press release every time you secure a conviction (whether by trial or by plea bargain).
Step 2 -- hope nobody notices the losses
Step 3 -- blame the judges

As I've pointed out time and again, Kim Ogg's District Attorney's Office has been absolutely shameless in scapegoating the judges for all of its own problems.  From blaming the judges for setting bonds on cases where the State failed to ask for a hearing to hold them at no bond to just deciding that dammit, those big mean judges just aren't of the right attitude to give them a fair trial, Ogg and Company have passed the buck more times than Tom Brady has passed a football. 

In June, prosecutors failed to present the aggravated robbery cases of Antjuan Dixon to a Grand Jury within 90 days, as required under the Texas Code of Criminal Procedure.  As a result, Dixon was entitled to a bond that he could make from Judge Danny Lacayo under the law.  Judge Lacayo had no discretion under this.  None.  Zero.  Ogg's office dropped the ball and Judge Lacayo had to follow the law.  This did not slow down Ogg's surrogate and old friend from CrimeStoppers, Andy Kahan, from going on air with Fox 26's Randy Wallace, to blame Lacayo.  Kim Ogg makes Bart Simpson looks like Harry S Truman when it comes to dodging responsibility.  (SIDE NOTE:  Randy Wallace should really consult with a legal expert before going on air with some of his stories.   He's really running the risk of making Fox News seem biased and untrustworthy.)

The Ogg Administration is at it again, according to today's Houston Chronicle.   The Office is trying to recuse 339th Judge Te'iva Bell from a case because she previously granted a mistrial based on Harris County District Clerk Marilyn Burgess' ridiculously unnecessary presentation to the jury panel.  Judge Bell was forced to make a ruling on a motion for mistrial made in a murder case because Burgess had let the panel know how important their job was to victims.   Although some prosecutorial-minded friends may disagree with me, I think she made the right call.  One has to wonder how the State would feel if the panel had heard from a group of speakers like Anthony Graves,Michael Morton or others who had been wrongfully charged and/or convicted before they came over to sit on a murder case.

The idea of trying to recuse a judge because you disagreed with a ruling is nothing short of absurd.  No trial lawyer has ever participated in a trial where they agreed with every ruling the judge made.  The answer to that problem is an objection and an appeal if the objection is overruled.  It is NOT getting rid of the judge, and Kim Ogg knows that.

This is all part of a disturbing trend within Ogg's office of trying to ax the judge when they don't like the rulings or attitude that they are getting.  They've done it to Judge Luong.  They are now doing it to Judge Bell.  They've gone so far as to run a slate of candidates against judges they don't like, and in the case of Judge Franklin Bynum, they've exerted a tremendous amount of effort into having him completely removed from the Bench entirely.

The message coming from Kim Ogg's District Attorney's Office is clear.  When the score of the game looks bad for your team, don't blame the coaches or players when you obviously need new referees.

SIDE NOTE:  I'm not exactly sure why Kim Ogg is still considered to be a Democrat.  At this point, she has proven herself more than willing to systematically attack every other local member of the Party to ingratiate herself with Republican voters.  She's been far more effective at damaging the Dems' chances in November than anyone from the official Republican Party has.  Hell, she's even brought in Rachel Palmer Hooper as a special prosecutor at $450 an hour even though Rachel is literally the General Counsel for the Texas GOP.  But that's a topic for another day . . . 

And, of course, if all else fails and steps 1 through 3 don't work, move on to Step 4 . . .

In Kim Ogg's D.A.'s Office, nothing is her fault.  It's just the rest of the world . . . 

CJC Closure for Tuesday, July 9th

 I'm dusting off the cobwebs from the old blog to do a public service announcement that all courts will be closed tomorrow, Tuesday, Jul...