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 . . .
