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 . . . 

Comments

Unknown said…
I am no fan of Ogg. Much of what is wrong with the DA’s office, as you suggest, is the result of an inexcusable attrition rate. But the judges, commissioners court, and George Soros also share a large portion of the blame for the lawlessness in Harris County today.

I chaired the PAC-screening committee this year for the Harris County Deputies’ Organization/FOP 39 and we screened all the criminal court judges who would answer a few questions about how they could reduce their case backlog and how they would handle defendants’ bonds. The majority of the incumbent judges would not screen with us. One exception, and the most outstanding judge in our opinions, was Maritza Antu of the 482nd District Court. She is the only incumbent district court judge that has already been about reducing her backlog and has proven that she follows the law when setting or forfeiting (as opposed to revoking) bonds. Too may of the judges have bought into the Soros-funded “bond reform” movement that allows defendants out on repeated PR bonds for serious crimes.

We learned from judges and judicial candidates that Rodney Ellis, the de facto chair of commissioners court, has forced incumbent judges to tow his line or he will run candidates against them. There is evidence indicating he ran candidates against some judges in the primary. We also learned that 82% of all criminal justice requests considered by the commissioners court are defeated by Hidalgo, Garcia, and Ellis.

In the near future, the HCDO/FOP will post a law enforcement endorsement list. If Harris County voters follow our lead, they will see crime reduction starting early next year. ~ Lynwood Moreau, Retired Harris County Sheriff's Office Lieutenant
RiseMyBAC said…
I gladly added another Not Guilty to that total Friday Afternoon lol. The lack of training of misdemeanor prosecutors on DWI cases is truly mind numbing.
Anonymous said…
Murray, please, PLEASE, correct me if I am wrong in my numbers: but in 23 criminal district courts and 16 County Criminal Courts at Law only 251 criminal trials have been tried to verdict in the first 7 months of 2022? That's less than 6.5 per court and less than one trial per month per court?

If I am correct in those numbers, "It’s lewd, lascivious, salacious, outrageous." It tells me (as well as it should tell voters and the commissioners court) that the entire system is woefully insufficient. If we are only trying less than one case per month with three ADAs floating around in each of the 39 criminal courtrooms, their budgets need to be slashed. Judges should be setting strict docket control orders and demanding Kim Ogg and opposing counsel be ready to try cases weekly, not continuously kicking cans down the road. And I am sorry, but young prosecutors are going to try and lose cases that need to be tried. That is how you learn. But if Ogg's office and 39 judges are only trying less than one case per month while everyone bemoans the backlog of cases, they are either lazy or afraid of/beholden to the criminal defense bar and definitely not committed to being a career prosecutor.
Anonymous said…
If they are not trying cases, what the heck are they doing. No wonder the dockets are in such bad shape. When I was assigned to the 262nd district court there was one week when Sam Roberson tried 3 jury trials. Sounds like too many judges are going home after lunch. They should be paid as part time employees with no benefits.
Anonymous said…
When they held the Salina murder trial in Judge Ted Poe's courtroom, the Judge held his docket afterwards during a night court.
Anonymous said…
I 100% agree with you that the conviction rate at the DA's office is an embarrassment. Yes, well-run DAs offices lose cases regularly. Yes, good, experienced DAs lose cases too. No one is arguing they don't. But if you can't evaluate a case any better than a 67% guilty rate, that's pathetic. And I understand young prosecutors are learning and will lose cases. That's expected. But so many of them!?! They should be sitting with experienced prosecutors who help them along the way and at least mitigate some of these losses. But, as you pointed out, the chiefs sitting with them often have years less experience than they did in the past and, therefore, are learning themselves. It's a vicious cycle where many don't seem to be getting demonstrably better b/c no one seems to have the experience to teach them. And for Ogg to not take at least some responsibility for that is absolutely ridiculous. She tries to act like such a bad ass - well, most true bad asses I know are also true leaders and realize the buck stops with them. If their organization isn't performing, it's a reflection on them and they do something about it. Cowards blame others.

The only thing I take a little bit of issue with you on Murray is how you often characterize the way things used to be as being so positive. Yes, the guilty rate was much higher in the past and the DAs were much more experienced (I was there when you were and can attest to it). Those are good things and this administration should strive for both. And there were many excellent, ethical DAs back then, some of whom were unfairly fired by Ogg. However, not everything that went on in that office back then was great either. I think some of those guilty verdicts occurred b/c we had judges on the bench who acted more like prosecutors than unbiased referees and we had cherry-picked grand juries that looked nothing like the overall Houston community and were willing to indict almost anything a DA told them to indict. I believe some cases back then that should have been kicked got tried or plead out b/c of supervisors who wore blinders and believed anyone who was charged must be guilty, and I think the sentences that many HC DAs, judges and juries dolled out were absolutely criminal. Remember PIAs being offered to take TDC time on the first day in court or the offer was off the table from then on out? That happened regularly. This was all done with the approval and encouragement of many of the supervisors at the DAs office and I think very few who did this ever lost a blink of sleep over it. There were times I really found it disturbing. So, I agree with everything you said about this administration but I also think we have to be careful about re-writing history and characterizing the past offices as "the good ol' days". We won alot of cases and sent people away for alot of years but I don't think justice was always served. And even though it seemed pretty obvious to quite a few people, it didn't seem to bother the people who were forcing us to offer TDC time on a state jail habitual with a crack pipe or were making ridiculously high offers on cases that would get county time today. I know it was a different time but still... I didn't get the feeling those folks were spending alot of their day thinking about what these harsh policies were doing to the defendants' lives. I'm just saying it wasn't all cake and roses back then either. There were good things about those administrations but there were also some not so good things.
Murray Newman said…
Anon 4:25,

If I'm painting too rosy of a picture of the Office during my time there, it is unintentional. I do think our training was far better and I think that turned us into better trial lawyers. And I think that we had a level of discretion that helped facilitate that along significantly. However, I recognize that we were also very heavy-handed (some more than others) and too often had zero sympathy for the accused regardless of the offense. I've written here a lot about being a pompous jackass as a prosecutor and don't get me started on Chuck. We also overestimated our talent on too many occasions because we had the evidence and yes, the judge on our side. Please don't confuse me saying something positive about the old days as being the same as saying it was perfect. It wasn't. I know it wasn't.

Anon 10:40 a.m.,
Ted Poe's docket averaged under 300 cases at almost all times and he ruled it with an iron hand. I was in s court for about three months as a felony two and enjoyed my time in there, but there are a lot of his standard practices that are long gone and nobody wants back.

Anon 8:30 and 10:40,
I'm not sure exactly where this misconception came from that judges aren't trying cases. They are. There is a lot more that goes into a jury trial than just having the judge sit there and look pretty, however. Both prosecutors and defense attorneys have to get ready. Witnesses have to be prepped. Witnesses have to be located. Quite frankly, the judges are the LAST people to blame if you think there aren't enough trials being tried.

Lt. Moreau,
Judge Antu hasn't been on the bench too terribly long and the court itself is very young. Not to take anything away from her job performance, but she does have somewhat of an advantage in dealing with backlog. Law Enforcement, as a rule, tends to favor Republican candidates, and Judge Antu is the one Republican on any of the benches in the building. It is understandable that you would support her, but these other judges aren't doing the bad job that Kim Ogg and Dane Schiller would have you believe.
Anonymous said…
As Murray says, the Judge sitting on the bench in years past identified more with the prosecution based on their experience. Nowadays we have criminals on both sides of the courtroom.

Which makes it fairer, but it explains Judges not following the law and having an attitude problem. Actually this phenomenon is happening down in Fort Bend too with Judges. I talk to the oldtimers and there is nothing but cries for help against the barbarism we now face. Im tired of practicing in front of people I would know are lazy and dumb even had I not gone to school with them. Dark days.
Murray Newman said…
Judges “not following the law and having an attitude problem” means criminals are now on “both sides of the bench”? Lol.

You do realize that the entire basis of the Constitution is that the idea of charging someone with a criminal act should be such a tremendous undertaking that it is actually difficult, right? It’s not supposed to be the rubber stamping of State accusations which so many people seem to desire. It is easy to accuse judges of not following the law and I can think of maybe one or two occasions where that has happened at most. The rest are following the law and that includes holding the State to the standard it is supposed to be held to, which offends the Right Wing.
Anonymous said…
If the numbers are correct, I guess trying less than one case per month tends to create a misconception cases are not being tried.
Anonymous said…
I have to admit that the police aren’t giving the prosecution the best material to work with… the profession is getting younger and the experience to investigate, articulate, and write isn’t being passed on. The academies are getting people who weren’t schooled in an era with mean English teachers and chalk boards where if you didn’t get the material you got to sit in from recess and practice till you did. You cannot make up for deficiencies in basic schooling in police academy and FTO. This also gets back to hiring practices. Too many want to “do their 8 and skate”… and when departments openly say that they want recruits who are less proactive (so as not to “discriminate”) let’s just say it’s hard to fill the air wing with eagles versus turkeys. One thing I always tell my guys and gals though… NEVER file a case you don’t believe in. The prosecutor should not have to screen a shit case because that should have been done by the officer. You don’t push the button and take, or try to take, someone’s liberty unless you can stand before God and defend it. The prosecutor should have an easy job— it should all be there. Otherwise it should never cross their desk. Unfortunately too I fear that with society taking the path of least resistance on so much else, we will see more ethical lapses here too. Some of us are trying to hold the line. — South of Westpark
Anonymous said…
Thank you anon 5:21 for pointing out the systemic problem we are having.

What we are all seeing is the degradation of our bench, bar, and police. It's happening all at once and at the same time that Harris County is really starting to feel the effects of demographic shift. White residents of Harris County decreased by %25 percent from 2010 to 2020.

It's obvious that's the reason why our society is suffering, whether one can afford to say it or not. We must state the obvious if the Constitution we care about is to survive. If we are to survive. You can't just take a set of ideas and divorce them from the people, the founding stock of this country, that breathed life into those ideas.

Murray, do you really think the judges are just enforcing the law now, and that's what accounts for few trials and even fewer wins? Ask one of your clients if he feels better having a judge that "looks like him." Chances are he does.


Anonymous said…
You can't get an accurate look at the number of trials without looking at the clerk's office stats, but from what I've seen continuances are much easier to come by than in the past. It seems that overall the judges are trying fewer cases. Defense attorneys and prosecutors have a role to play, but the buck stops with the judges. The case loads should be in much better shape.
Anonymous said…
The judge controls the courtroom schedule via the power to grant or deny continuances. Cut the pay of Harris County judges like Dallas is trying to do and the dockets will move.

https://www.dallasnews.com/opinion/editorials/2022/08/14/dallas-county-must-hold-judges-accountable-for-case-logjam/
Murray Newman said…
Anon 11:51,

I’m going to go out on a limb here and guess you aren’t a lawyer. I know that it is core to the current election campaign being pushed by the Republicans that somehow there is a bad batch of judges in Harris County, but that just simply isn’t the case. You have no idea how continuances work, or how little control judges have when a case is dismissed or pled out.
Anonymous said…
I have a beef with the judges. Why can't they do what they were elected to do? They got associate judges who can sign warrants that the elected judges are supposed to sign. The associates can supposedly pick juries. What are the elected judges doing while the associated judges conduct voir dire? Maybe they are going home early? They get visiting judges to handle the backlog. Meanwhile the vast majority of the elected judges don't have Friday dockets. How can you expect to address a backlog when you shorten your work week by 20%? What does that cost taxpayers? If being a judge is so damned hard, maybe you should not have run for the position!
Murray Newman said…
Most judges don’t have Friday dockets? This is news to me. I don’t routinely practice in EVERY court in the CJC but I practice in most of them. The ones I’m in sure as hell have Friday dockets so I don’t know where you are getting your information from.

I’m going to guess you don’t routinely practice in criminal courts or you wouldn’t ask what judges do if not picking juries. They spend their mornings dealing with dozens of issues that require judicial intervention for cases on the docket that day. Long before those magistrates came into existence, judges would bring in visiting judges to pick juries on capitals so that they could continue to run their daily dockets. Having magistrates who pick juries allows judges to deal with the testimonial side of the jury trial.

All of these beefs you list with the judges aren’t based in fact. They seem more like opposition propaganda.
Anonymous said…
Actually, I practice down here daily. That's how I know what is going on. I am NOT the opposition and I am sure as hell not running for anything. Prove me wrong. The majority of the sitting judges are not here right now as I type this comment. The majority of them leave while the AJ's are in voir dire. Prove me wrong. While cops are lined up outside the door of the AJ's the majority elected are not doing anything in court.

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