Friday, November 24, 2023

Chuck Rosenthal

I heard this morning that former District Attorney Chuck Rosenthal passed away overnight.  He had been in ill health for quite some time and I heard he had taken a turn for the worse over the past few weeks.  The news of his passing was not unexpected.

To say that Chuck left behind a complicated legacy would be an extreme understatement, especially for those of us who worked as Assistant District Attorneys under his administration.  Although I started my prosecutorial career under Johnny Holmes, he retired a little over a year after I started and the vast majority of my tenure was in the Rosenthal Administration.  The end of Chuck's career would tangentially cause the end of my career as a prosecutor, and it was the end of an era of old-school prosecuting in Harris County as well.  Like many of the people I worked alongside in those days, my thoughts on Chuck Rosenthal are conflicted.

Chuck ended his career being vilified for many things, and by association, those of us who worked there were vilified as well.  I can recall trying to pick a jury shortly after news of his scandalous e-mails had hit the media and asking the panel of 65 potential jurors if their views of the Harris County District Attorney's Office would lead them to be unfair to the State.  I remember distinctly that one man said it definitely would.  He noted something to the effect of, "You seem alright, but if Chuck Rosenthal was standing there when I came in, I'd have turned around and walked right out."  That moment always seemed to encapsulate what that last year (2008) would be like for those of us who worked at the Office -- one-on-one dealings with us prosecutors seemed to be okay, but man, that Office had a horrible reputation.

It was a far fall from the reputation the Office had under the Holmes Administration.  

It also seemed to give vindication to all of those in the Defense Bar and some segments of the media that the Office was nothing but a racist and unethical haven of heavy-handed prosecutors who cared more about winning than playing by the rules.  That was a bitter pill to swallow for those of us inside the Office who didn't feel that way about one another, and we certainly didn't feel that way about ourselves.  The racist and sexist e-mails that were discovered from Chuck's computer were attributed to all of us as if we had authored them ourselves.  Back then it felt like any attempts to defend ourselves or the Office, in general, was to condone Chuck's behavior.  As most of you know, that's when I started this blog as an anonymous Harris County Lawyer over fifteen years ago.

But time has a way of lending perspective to certain moments in life, and the anger and resentment that I had for Chuck back in the day has been tempered somewhat.  Over the years, any attempt to say anything slightly positive about my time there has generally led to retorts of, "You just miss the good old racist, evidence-hiding days of Chuck Rosenthal!" But the truth is that in the big scheme of things, up until his disastrous implosion at the end, working as a prosecutor for Chuck Rosenthal was a pretty fantastic job.

To understand that, you have to understand the relationship that Chuck had with his employees.  And to understand that, you have to understand Chuck.

Whenever I talk about Chuck Rosenthal to people who didn't know him, I always lead off by saying, "The first thing you've got to know about Chuck is that he was really a strange man."  I don't mean that as an insult to him.  It's just true.  He was an extremely aloof guy whom most of us in the Office didn't know very well -- certainly not those of us in the lower echelons at the time he became District Attorney.  We had all signed up for the job under Johnny Holmes, who was a legendary firebrand of a leader.  We were scared to death of Mr. Holmes although we all felt very proud to work for him.  We revered him and we would follow him into battle.  History may ultimately be unkind to Johnny Holmes, but those of us who worked for him loved him.

Chuck, on the other hand, was just Chuck.  He was a tall guy who cut an imposing figure, but he didn't seem to have much going for him in the personality department.  He was extremely quiet and he seemed to rarely speak or smile.  In an Office filled with dynamic and charismatic leaders from Lyn McClellan to Ted Wilson to Bert Graham and many others, Chuck wasn't really viewed as the heir apparent to Mr. Holmes.  I think I had met him once or twice during the Holmes Administration and the only thing I remember about it was referring to him as "Mr. Rosenthal."  Without smiling or even making eye contact, he would reply, "Call me Chuck" and then walk off.  That and his bone-crushing handshake were all that really stood out about him.  I'd seen him in trial once alongside Elsa Alcala when I was an intern for the Office and I didn't think he even had the requisite amount of charisma to be a trial lawyer.

On the day Mr. Holmes announced he wasn't going to seek re-election, Chuck immediately announced that he would be running for District Attorney in 2000, and nobody else from within the Office seemed to be interested in challenging his claim to it.  It was a strange time.  It was as if some announcement had been made that Chuck would just be taking over and that was all there was to it.  Nobody seemed particularly excited nor upset.  It just was what was going to happen.

In one of the more ironic moments of life, a retired judge by the name of Patricia R. Lykos chose to challenge Chuck in the primary.  I had met her a couple of times when she had been a visiting judge in Brazos County and just found her to be delightful.  Several of my friends at the time discussed whether or not she would have been a better D.A. in 2000.  Word got around to some of Chuck's inner circle that some of us peon ADAs weren't "loyal" and we learned to keep our bizarrely positive thoughts on Lykos to ourselves.  True story!

When Chuck won the D.A.'s race and took over, the transition from Holmes to Rosenthal was about as seamless as one could have imagined.  I was too low on the food chain to have known the few people he chose not to renew.  Things just kept chugging along as they always had.  Chuck was the new District Attorney and most of the rank and file rarely interacted with him.  We might see him at the Office Holiday party for our yearly bone-crushing handshake, but other than that, we didn't see him.

And that was what made Chuck a good boss to work for -- the man simply let us do our jobs.  He wasn't there to micromanage us or yell at us for doing something to embarrass him or the Office.  He trusted his people to do their jobs and he left us alone to do them.  The hierarchy of the upper-Administration was effective and they themselves tried cases.  There was a camaraderie within that Office because we were all of the same mindset of people who felt we were seeking justice and we weren't afraid to go to trial.  We also weren't afraid to dismiss bad or weak cases because we knew we wouldn't get in trouble for it as long as we used our best judgment.

Say what you will about Chuck Rosenthal, but that Office ran like a well-oiled machine during his tenure.  I think I had to deal with him in an official capacity on two occasions.  On one occasion, someone had taken issue with a quote I had said in a newspaper article.  I was called to his Office where he showed me a letter he had received complaining about my quote.  I explained myself to him.  He shrugged and said, "I get bullshit letters like this all the time."  And that was the end of that conversation.  

The other time I dealt with him was when I needed to offer immunity to a witness on a murder case.  It involved a lot of paperwork and ultimately required the elected District Attorney's signature.  I prepared all of the paperwork and took it to his office.  He didn't stand or say anything in greeting.  I just handed him the paperwork and he signed it.  As I left, he told me, "Send me an e-mail when you are done with trial and tell me what I just signed."

That was what it was like working for Chuck.  He didn't inspire much in us, but we appreciated the discretion to do our jobs.  Rather than having one leader that we all looked up to, we felt more like we were part of a very talented team of trial lawyers and we looked up to each other.  Fifteen years later, those of us who worked there still may get the occasional taunt about having worked for someone as terrible as Chuck, but we definitely don't get taunted for being bad trial lawyers.

But for all of those who hated Chuck Rosenthal, those of us who worked for him at the time felt uniquely betrayed.  When his actions were brought to light, he had the option of resigning or, at a minimum, announcing that he wouldn't seek re-election.  Instead, he doubled down on refusing to leave -- even when an executive committee of Republicans implored him to leave.   Had he chosen to leave with some grace, perhaps that Office could have kept on running seamlessly.  Instead, it led to a hotly contested primary that ultimately ended a great many prosecutorial careers.  As one Division Chief repeatedly said, "I get the suicidal pilot that wants to crash his plane into a mountain, but Chuck took a 747 full of passengers with him."

In retrospect, who knows what would have happened?  It was 2008 and there was a major shift in the politics of Harris County that extended far beyond just the D.A.'s Office.  Chuck certainly bore the brunt of the blame from those of us who had worked for him, but that probably gave him more responsibility than he had actually earned.

After it was all over and Chuck was gone and I was gone, he started sending me random text messages and e-mails -- mainly commenting on things I had written on the blog.  I typically left them unanswered because I felt pretty bitter towards him.   In the early months of the Lykos Administration, I attended a going-away party for Bert Graham that was attended by a great many former prosecutors, including Johnny Holmes . . . and Chuck Rosenthal.  I had quite a few beers at that party and when Chuck walked up to me, I angrily told him to stop sending me texts and that if he wanted to talk, we could go to lunch.

The following day, he called and invited me to lunch.

To say it was the most awkward lunch I've ever attended would be a major understatement but after some failed attempts at small talk, I did launch into him for having failed the Office and the people who worked for him.  He sat there impassively throughout it all.  When I was done, he just looked at me and said "What would you have had me do differently?"  Since I had just spent fifteen minutes monologing about what I thought he should have done differently, I was floored by his question.  I really regretted having asked him to lunch.  Like I said earlier, Chuck was a strange guy.

At the end of that going-away party for Bert, a group of us had been standing outside smoking cigarettes toward the end of the party.  Chuck had stopped to speak to some of us while we were standing there although none of us really knew what to say.  As we were standing there, Johnny Holmes walked out of the front door and shook hands with most of us.  He then stopped and looked at Rosenthal, without shaking his hand.

"Chuck," he said, barely acknowledging his successor's presence.  And then he just walked away.  I'm not sure that I ever saw Mr. Holmes again in person.

For me, that moment always seemed to epitomize the end of my time at the District Attorney's Office.

Saturday, November 4, 2023

New Facebook Page

 Since I don't have the time to write longer blog posts as much as I'd like to these days (shout out to Joe Vinas for telling me being President of HCCLA wouldn't take up that much time), I've started a Facebook page for Life at the Harris County Criminal Justice Center.

I'll be posting on the Facebook page the latest news, rumors and gossip in some shorter snippets as they become available.

You can keep up-to-date by clicking here and following the page.

Biggest Fan

 It's good to see that Sean Teare is capturing the attention of the audience on the campaign trail!

Monday, October 30, 2023

Observations from Jury Duty

 I had jury duty for the first time in a couple of years today.  In the 33 years since I've been eligible to be a juror, I had only sat through three voir dires before today.  I never made the jury on any of them.  The first was a criminal case in Brazos County when I was at A&M.  The second was a criminal case in Harris County shortly after I left the D.A.'s Office where my friend and former co-worker Wendy Baker utilized a State Strike on me because she thought I was too good of friends with Defense Counsel Mark Bennett -- as I pointed out to her later, I never drove Mark to the hospital when he was in labor, but whatever, Wendy!  The third was a civil trial.

Since I had a jury summons for a Monday morning, I was pretty sure that I would at least be called to a panel today.  And I was right.

And truth be told, it was all pretty painless.

Thanks to my frequent visitor badge, I got to skip the metal detectors and got logged in on the computer and sent to my assembly room.  We watched a short video where District Clerk Marilyn Burgess spent about five minutes talking about how she had helped secure more money for jurors for their service and ways to use the gift card that we would be receiving the money.  About fifteen minutes later, Deputy Momin came and collected 65 of us for voir dire in the 180th District Court, Judge DaSean Jones presiding.

So, my first observation is a big shoutout to the 180th Court and its staff for being incredibly efficient.  We were seated and in the courtroom by 9:30 (if not earlier).  Standing around in the hallway is boring and we didn't do it for very long.  Deputy Momin got us there quickly, got us lined up, and got us in our seats efficiently.  There was a brief moment of entertainment when a female defendant (who may or may not have been on meth) in the hallway started yelling at jurors to get out of her way.  This got Deputy Momin's attention, and he chastised her for talking to his jury like that.  The bailiffs are the Court's first ambassadors that the jurors meet and the 180th has a great one.

Different judges do voir dire differently and for varying lengths of time.  Former 351st District Court Judge Mark Kent Ellis used to famously talk for four or five hours for his portion alone.  Some judges I've seen over the years didn't talk at all.  Judge Jones' voir dire was short and to the point.  He and I've known each other for about fifteen years and he called on me to answer some of the basic questions.  He covered some of the major themes that needed to be covered, but he didn't talk for long at all.

Each side was given thirty minutes to ask questions on an Assault-Family Violence Impeding Breathing case.  That's not just a ton of time to talk on a type of case that can potentially have some pretty deep issues.  The State was represented by the Felony Three assigned to the Court and his Chief sat with him.  The time allotted to him wasn't enough for him to get too fancy and he did a fine job of covering the basics.  He spent the majority of his time gauging the attitudes of the panel towards State involvement in matters of family violence.  He had a couple of scaled questions that were good ideas, but I think he spent too much of his limited time following up with their numerical answers without getting anyone struck for Cause.  He also made a point of going over "the State doesn't have to prove motive" which I've been seeing coming from several prosecutors lately.  I don't think that's really necessary.  His presence was good though, and I'm sure those lessons will be learned in time.

Defense Attorney Brennen Dunn was representing the Defendant in the case, and he was great.  I don't know him except in passing but he is well-known as an attorney who isn't afraid to go to trial, and it showed.  He was clearly ready to get through his points in a short amount of time and he did it very well.  Any defense attorney will tell you that we freely steal ideas from one another, and I'll definitely be stealing some things from Brennan -- particularly on how he covered the presumption of innocence, the burden of proof, and the 5th Amendment.  He got plenty of strikes for Cause.  I was a little surprised at some of his questions on self-defense, but all in all, he had an outstanding presence in front of the jury and did a great job.

After both sides were done, we went out in the hallway for about fifteen minutes.  When we came back in, both sides spent about five minutes wrapping up making their peremptory strikes, and they seated a jury.  I was juror number 49, so I didn't get reached.  I was out of there right around noon.  It couldn't have gone any smoother.

Sunday, October 29, 2023

Feast of Fashion Returns

 After an absence of several years due to the Pandemic, Pat Kelley and Julie Jones' Feast of Fashion is returning this year.

It's been a minute since the last, but they are always a ton of fun and raise money for several great causes.  For ticket information, contact Julie at 713-248-6864.

Sunday, October 22, 2023

Skip Cornelius

Legendary Defense Attorney and former Prosecutor Skip Cornelius passed away yesterday.  To say that his passing has resonated across the entirety of the Harris County Criminal Justice Center Family is an understatement.  From his fellow members of the Defense Bar to the Prosecutors who handled cases against him to pretty much all of the Judges he practiced before, Skip was the Gold Standard of what it meant to be a lawyer practicing indigent defense.   If you've been a reader of this blog over the years, you'll have seen his name brought up many times as I cited him as the best Harris County had to offer.  

It seems that the only thing that really motivates me to write something on the blog these days is when I feel the need to say goodbye to someone who I consider to be an influential force in my legal career. Lately 'm having to do that far more than I wish.  There have been other recent passings that I feel remiss for not having written about here, including Skip's brother, Terry Cornelius, who passed away earlier this year, and retired Judge Don Stricklin, who was the man in 1999 who called and offered me a job as a prosecutor.  Between lawyering and parenting, there have been things I've wanted to sit down and write about over the past months but just haven't had the opportunity.

With Skip's passing, however, I have so much I want to say that I just couldn't . . . not, I guess.  

There were so many eras of my legal career where I dealt with him, learned from him, and tried to imitate him -- starting when I was a new Felony Three who had hastily written a very low offer on a case file (back when we had paper case files) on one of his clients.  He looked at the offer and frowned slightly before handing me the file.

"I appreciate the offer.  I do," he said.  "But it would probably get you fired."  He pointed out that I had neglected to pay attention to his client's criminal history which made his punishment range 25 years to Life -- far higher than the 2-year offer I had extended.  But I had extended the offer, and after explaining my mistake to my chief, we honored it.

So, one of the first things that Skip taught me was in an adversarial system, there was still very much a calling for honor and chivalry in how we deal with each other.  He very easily could have called in the doctrine of No Take Backs and gotten me in trouble for my mistake to the benefit of his client.  In some defense attorney circles, one might argue that he made the wrong call.  I disagree with that argument wholeheartedly.  Skip's demonstration of honor put the onus on me to respond in kind.  It also made me want to follow his example in my future dealings with him and all opposing counsel in the future.

Skip's chivalry didn't always translate into patience with a young prosecutor, however, and I'm sure that I was just one of a multitude of young prosecutors who could annoy him.  I saw him mad on occasion, but more often it was his annoyance that tended to resonate with me.  I always felt if I was annoying Skip, I was definitely doing something wrong.  We once had a case together where a charge had been filed against his client but several other charges hadn't.  As we were getting closer to trial, I had gone ahead and filed those additional charges in anticipation of trial.  

We approached the bench for a pre-trial conference and Skip was clearly exasperated with me for reasons I didn't completely grasp initially.  The judge asked us what the status of the case was.

"Well," Skip said.  "We probably could have worked it out today if the State hadn't filed the C.S. Charges."

"What are C.S. charges?" I asked, very confused.

"Chickenshit charges," he replied, shaking his head.  We ultimately worked his case out on the original charge and dismissed all of those extraneous C.S. charges.

Skip was a highly respected and skilled trial lawyer who handled a multitude of serious cases, including many Death Penalty Capitals.  Because of his experience in trial, he was highly sought-after to be a speaker at Continuing Legal Education classes on Capital Murder cases.  I loved attending lectures where Skip was talking, because he always got straight to the point in a way that so many other lecturers failed to do.

While other lecturers at a Capital Murder seminar have an annoying tendency to wax overly poetic as they pontificate -- 

As we realize that we hold a precious life in our hands in these dastardly cases and everything is riding on us, we must first take a moment to step outside of our limited world view and embrace the situations that our clients have existed in that led them to this horrible and tragic circumstance for so many.

 -- Skip would take to the stage and say things like "The first thing you need to do is make sure there are no damn engineers on your jury."  With no offense towards the many esteemed lecturers on Capital Murder that I've listened to over the years, Skip was king of giving me information that I could put into practice.

My favorite Skip story came from the one trial I ever had against him.  It was an Aggravated Robbery case where a trio of Defendants had robbed a young lady in her apartment complex parking lot.  They had stolen her purse with credit cards and her cell phone and then immediately headed to a local tattoo parlor for some extravagant skin artwork on the young lady's dime.  Cameras on cell phones were still a relative novelty in those days, and the trio used her phone to take pictures of their tatts.   We had recovered the pictures from the phone, but in the one with what appeared to be Skip's client (based on clothing worn at the time of his arrest a short time later), his face wasn't clearly visible.  The case was a whale for me and Skip was fighting an extremely uphill battle.

But it is a truism that in any trial, there will be something that a prosecutor has forgotten to do, and in this case, I had forgotten to get a court order to have Skip's client's tattoos photographed before trial.  Realizing this mistake mid-trial, I approached Skip on a break during testimony.  He was working on the case in the break, taking notes while staring at something intently at the offense report.

"Hey," I said, "I need a favor."

"Oh yeah?" he asked, without looking up or stopping writing his notes.

"So, I should have gotten an order to have your guy's arm tatts photographed before trial and I didn't."

He paused writing but continued reading with a smirk starting to show up on his face.

"So you want to know if the tattoo is there?" he asked.

"Well, yeah," I said, starting to feel my face turned red.  "I was going to have the Court order him to show his arm to the jury.  I mean, if it isn't there you can obviously point it out and get some mileage out of that."

Skip set down his pen and scooted back from the table, folding his arms and looking at me like he was playing with his food.  He didn't say a word. 

So I continued

"I mean, all it would do is just make me look like a big dumb ass in front of the jury if it isn't there.  If it's not there, you can obviously show that to them without making me look like an idiot."

He smiled.

"Do you think it's there?" he asked.

I paused and thought about it for a second.

"Um, yes?"

He shook his head and rolled his eyes.

"Of course it's fucking there," he said and went back to taking his notes.

To be clear, he wasn't giving up anything that would have benefited his client.  He just saved a young-ish prosecutor from a potentially humiliating experience in front of the jury that would have haunted me for life.

Skip once told me that he didn't take retained cases because he had no desire to deal with the "bullshit" that came along with keeping the customer happy.  He preferred appointed work because he knew he was doing an outstanding job for all of his clients.  He didn't feel the need to explain himself unnecessarily to those who were high-maintenance.  There is no telling how many miracles Skip pulled off for clients who never had a clue as to how lucky they were to have him as their lawyer.

He was so good at everything he did and he was so good in trial.  As news of his passing spread, former prosecutors shared stories of their whale cases against Skip where he somehow kept the juries out for hours and hours.  His name rarely made the news but he was most definitely the lawyer that all of the other lawyers knew and respected.  He was a subtle, but commanding presence in the courtroom.  He was serious but also had an outstanding dry sense of humor.  He was confident and steady in all of his cases and there wasn't a prosecutor born that rattled him.  

He was a respected, dignified, and talented attorney who will be greatly missed.

He was what all of us should aspire to be in this profession.

Saturday, August 5, 2023

Of Symptoms and Larger Problems

The Houston Chronicle ran an article this week about local criminal defense attorney Jerome Godnich and the fact that he made over half a million dollars last year in court-appointed fees.  In my current role as president of the Harris County Criminal Lawyers' Association, I was interviewed at length by Neena Satija, the reporter who wrote the article, although a lot of what we talked about didn't end up in the story.

The quote of mine that she did use pointed out the fact that I thought Jerome (as well as other lawyers who have recently come under the microscope for taking on too many cases) gets appointed on so many cases because judges know he is a good and competent lawyer.  In typical fashion (in what has become the story of my life since becoming HCCLA president), by 9 a.m., I'd received one e-mail saying I needed to defend Jerome more strongly and another saying I didn't blast him enough.  

It's days like these that I really miss smoking.

The point that I was trying to convey to Neena when she interviewed me was that I thought that overloaded attorneys are a symptom of a much larger problem.  The larger problem being that there aren't enough qualified lawyers to handle the more complex and serious cases that permeate the CJC on a daily basis.  I also pointed out that the only difference between those overloaded lawyers and myself is that I regulate myself on how many open and active cases I'm willing to take on at any given time.  And I'm routinely asked why I'm not popping up on the list more often. 

Couple that shortage with the way (as opposed to the amount) attorneys doing indigent defense in Harris County are paid, and voila!, you get the incentivization of the overloaded lawyer.

As I wrote back in 2017, the issue in Harris County when it comes to indigent defense isn't the amount that lawyers get paid, but when they get paid.  Under the system, attorneys aren't supposed to get paid for the work that they do on a case until the case is finally disposed of.  As I noted back then, every judge I know is willing to let an attorney file an interim voucher if they need to, but generally, we are supposed to finish the case before asking to be paid for it.  Under that system, an attorney at any given moment can be owed thousands of dollars by the county and is working on the promise that they will get paid eventually.  

Unfortunately, we attorneys aren't provided the same courtesy by people we owe money to.  I wouldn't get very far with my bank if I told them that I'll pay my mortgage as soon as I'm done living in my house.

The way attorneys who rely on court appointments keep their income stabilized is by keeping a steady flow of accepting new cases as older cases are disposed of.  Ideally, that will lead to cases being resolved on a regular basis and an attorney being able to be paid.  The problem is that it isn't an exact science, especially when dealing with more complicated, first-degree cases.  Those cases are far more likely to be set for trial, and how quickly they get to trial can vary drastically on a case-by-case basis.  If a lawyer's balance of incoming to outgoing cases isn't properly managed, that lawyer could potentially go a couple of months (or longer) without getting a paycheck.  

Years ago, when I described how the system worked to my dad, he analogized it to a pipeline, which is appropriate on several levels.  Some attorneys are content to keep a nice, steady flow of cases in their pipelines.

Others keep their pipelines on full blast.

If you are a competent lawyer who handles those first-degree cases, the Courts are more than happy to facilitate the full-blast pressure.

For many critics of the Harris County Criminal Justice System, the suggested answer has been a larger Public Defender's Office.  Given the size of Harris County, the PD's Office is relatively small and handles far less than even half the cases requiring indigent representation.  Some have advocated that the PD's Office be made large enough to handle all indigent defendants in Harris County.   Although I have a tremendous amount of respect for the Harris County PD's Office, I think there are quite a few problems with that idea.  I think it is feasible that the Office grow significantly and take a larger percentage of cases, but that's going to come at a much higher price tag for the County.  Additionally, the PD's Office has some very strict guidelines regarding their case counts and they actually adhere to them.  Throw in things like conflicts of interest and how to handle co-defendants, and I don't think that the private Defense Bar will ever be fully removed from indigent defense, but I could be wrong.  There are just too many Defendants.

Although I think that growing the Public Defender's Office would be helpful to the situation somewhat, I think that more meaningful change can be made by revamping the current case management system (Federation Systems Authentication Gateway aka FDAMS) in a way that bolsters accountability by 1) implementing case caps; and 2) accommodating a bi-monthly payment system.  It would definitely be a big change, but a worthwhile one.

Addressing the issue of case caps first, I have always thought that the standard of how many cases a lawyer handled in a year was less important than how many cases a lawyer was handling at a time.  Under a revamped FDAMS system, each attorney's cases would be tracked as well as the degree of each case.  The judges (or whatever powers that be) could establish how many cases (and of what degree) an attorney was allowed to be appointed to at any given moment.  For example, let's say 15 first-degrees, 25 second-degrees, and 60 third-degrees or State Jails were the numbers.  If an attorney has hit that limit (on any given degree) then they simply won't be eligible to pop up on the list for that degree.  Under that system, the overloaded attorney could still find a way to get overloaded, but not with appointed cases from Harris County.

Switching to the bi-monthly payment system would be more problematic to implement, and the idea would definitely face some pushback from multiple parties -- including the attorneys taking appointments.  I don't do Federal appointments, but I've heard that they follow a system of incremental payments rather than requiring a case be completed before an attorney could file a voucher.  This system would require attorneys to keep more detailed and current records of the work they do on cases, but there would be a two-fold benefit to doing it.

The first and most obvious benefit would be that attorneys would be able to rely on regular payments for the work they had done during the pay period.  There would be no need to keep "the pipeline" full and flowing and therefore the need to overload wouldn't be so tempting.  The second benefit would help not just the attorneys, but the clients and the courts as well.  By logging in the hours on a case in real-time (rather than waiting until a case was finally disposed of), the courts would have access to seeing that cases were actually being worked on.

It's not an infrequent complaint from indigent defendants that they feel their attorney isn't doing any work on their case.   This system would allow the court to check out what hours had been logged on a case thus far to see whether or not those complaints are valid or not.  If a client alleges that their attorney hasn't communicated with them, this system would easily confirm or deny that allegation.  It would incentivize the attorney to make sure he or she is doing what he is supposed to do on a case or risk having to explain themselves to the court.

Like many other attorneys I know, our law firm utilizes to manage our caseloads.  The type of time management accounting that I suggest is a standard part of their platform.  Using this system, attorneys can look at the time they spend on each individual case as well as look at a big picture of their billable hours on all cases over a time period.  Although this may seem like a drastic change from how Harris County currently does things, this is basically just running FDAMS as if it were an actual law firm.

My thoughts are that these changes to the FDAMS system would create an immediate and positive change in the quality of representation of indigent defendants while providing accountability for the system as a whole.  I have no doubt that this would be somewhat difficult to implement, but it would be far from impossible given the advances in technology that we see every day.  I think it would also ultimately be far cheaper than hiring one hundred new public defenders that would be required to keep up with all of the cases filed every day in Harris County.

I'm sure that there are probably some pitfalls in my plan that I'm overlooking, but I'd love to discuss them with anybody willing to have a serious conversation about them.  

Monday, June 19, 2023


Man, Kim Ogg had to be missing her some Dudegoggles today.  

Ever since former Harris County District Attorney's Office spokesperson Dane Schiller left the Office (and the country!) following his disastrous appearance as a witness in the Guajuardo hearing last year, it looks like Boss Ogg has been managing her own Twitter account.

And if today's events are any indicator, suffice it to say that things are not going well.

It started off with a seemingly non-Ogg-related tweet from June 6th by a Twitter account called "Urban Reform" that had made note of a recent heated exchange between County Judge Lina Hidalgo and County Commissioner Adrien Garcia.  The original tweet seemed to be more of an observation that the event had happened and did not appear to cast judgment on Hidalgo.

However, as we all know, one cannot say the words "Lina Hidalgo" without awakening the hordes of Lina-haters that seem to cruise the waters of Twitter like a killer whale looking for a wounded seal.  This post was no exception as many pearl-clutching, anti-Hidalgo tweeters came out to illustrate that never in their ENTIRE LIVES had they heard someone drop a (gasp) "F-Bomb" in public, and certainly not a  (swoon) woman!  One of the ultra-sheltered tweeters was a lady whom I have met (and actually enjoyed talking to in person) who posted under the handle of "Michelle GCR."

Now, Michelle is not a big fan of Judge Hidalgo and never has been.  So, it was no surprise to me that Michelle's tweet in response to Urban Reform's tweet was short and sweet:  "She is vile."

What was surprising to me, however, was to see that Kim Ogg retweeted what Michelle had said.

So, if you are unfamiliar with Twitter etiquette, when one "retweets" another's "tweet," they are normally endorsing it and the sentiment behind it.  There may be exceptions, but Twitter gives a user the option to comment along with that retweet (i.e., "this is wrong" when retweeting something you actually disagree with).

But Kim Ogg just retweeted the sentiment that Lina Hidalgo was, in fact, vile.

So, I posted my own tweet, calling attention to what Kim Ogg had retweeted, and some members of the Horde of Hidalgo Haters turned their attention toward me.   Most accused me of being a Lina Hidalgo apologist/fan club member.  I've certainly been called worse, but the truth is that my feelings are probably best described as "okay."  I voted for Ed Emmett over her in 2018 because I thought he was an amazing County Judge.  I did, however, vote for Hidalgo over Alexandra del Moral Mealer, because I felt that Mealer was an election-denying, anti-vaxxing, right-wing kook.  I've disagreed with Hidalgo on some issues and agreed with her on others.  I don't agree with any of the racist or sexist vitriol that so many of her detractors aim at her.

Defending Hidalgo wasn't the reason for me pointing out Kim's retweet.  The issue was that Kim was sharing her personal distaste for someone that she has been actively investigating for a couple of years now.  This wasn't about the job Lina Hidalgo was doing.  It was about the job that Kim Ogg is, yet again, not doing.

A prosecutor's job is to seek justice.  If you don't believe me, just watch jury selection in a criminal case and they'll be happy to tell you.  They seek justice and the implication is that they do so without any type of personal bias or other dog in the hunt.  There's also an implication in there somewhere that a prosecutor isn't supposed to seek justice for media attention or votes, but Kim Ogg has never really adhered to that little unwritten rule.   From her prosecution of Arkema to HPD's narcotics squad to Dr. Hasan Gokal to three staffers in Judge Hidalgo's office, Kim has proven time and again her fondness for charging people with crimes for headlines.  

But with Kim's retweet of Michelle's "She is vile" message, our elected D.A. is showing a strong indication that her motivation for her investigations into Hidalgo and her staff is more than just capitalizing on the anti-Lina Hidalgo sentiment.  Apparently, there's some personal animosity mixed in there, too.

That's no shock to those of us who follow Harris County politics.  Ogg and Hidalgo are clearly political enemies, and Ogg has misleadingly accused Hidalgo of "defunding" the D.A.'s Office on multiple well-publicized occasions.  Hidalgo, as mentioned above, dropped an F-bomb when accusing Commissioner Garcia of being too closely aligned with Ogg.  Both are public officials and both are entitled to their opinions.  They are free to disagree and even fight with each other.

But only one of them has the power to potentially have the other investigated and prosecuted.  

And Kim Ogg's office has done just that for well over a year now.  In an "investigation" into Hidalgo's Office, there were media leaks right and left before three of Hidalgo's staffers were indicted (on what I personally believe are absolutely unsubstantiated charges based on my knowledge of the case).  In the aftermath, Hidalgo expressed concerns that based on Ogg's hatred of her that she (Hidalgo) would be indicted next.  Kim's retweeting of "She is vile." gives fuel to that fire and it's not what society expects from a prosecutor who is supposed to keep Justice blind to personal animosities.  It's a bad look and Kim knows that.  

How do we know that?  Because of what happened next . . .

After attention was brought to the retweet, Kim's Twitter account posted a laughably lame explanation that her account had been "hacked." 

Some were skeptical.

As is typical when Kim Ogg steps in dog crap, she blames someone else.  It couldn't possibly be that she was so stupid to put a stunning lack of ethics on such display, could it?  Of course not.  She had obviously been hacked.

If you are feeling like you are experiencing deja vu all over again, you aren't going crazy.  Remember this fun story from three years ago?  It may sound eerily familiar.   The short version goes like this - Kim Ogg sends out an e-mail to all prosecutors looking for "volunteers" to help at an event where she hands out free stuff to potential voters.  Her e-mail notes that their participation will be reflected in their evaluation.

And when some blogger points out on Twitter that perhaps coercing your employees to work a campaign event for you under threat of retaliation is completely illegal isn't a good look for an elected official, suddenly it turns out to be an unauthorized person using Kim's account without permission.


It seems to me that Kim Ogg's retweet of her thoughts on the "vileness" of Lina Hidalgo might become an interesting exhibit in that Motion to Recuse that was filed last year.

Maybe for once, somebody might actually hold our District Attorney accountable for the extra-judicial statements she makes about the cases her Office is handling.

Sunday, May 14, 2023

I'll Take "Things That Aren't Any of the Prosecutor's Damn Business" for $1,000, Alex.

There were a couple of interesting things of note in this article about the Darius Lewis case by Nicole Hensley in yesterday's Chronicle that I thought were worth mentioning . . .

Spoiler Alert:  it isn't really up to the prosecutor to decide whether or not a client is indigent enough to qualify for appointed counsel unless he or she is doubling as the judge or county auditor.  

Also, when did prosecutors start sharing juvenile criminal history?

Saturday, February 18, 2023

Lyn McClellan

I have always said that the best thing about working in the Harris County Criminal Justice World is that it provides us the opportunity to walk amongst giants.  Harris County boasts some of the most famous names in the history of Texas Criminal Justice:  Percy Foreman, Racehorse Haynes, Dick DeGuerin, Rusty Hardin, Kelly Siegler, Johnny Holmes, and Dan Cogdell, to name a few.  As impressive as all of those names are and the large volume of famous cases associated with them all, the name and face that I always though of when I spoke of giants was retired Harris County District Attorney's Office Bureau Chief Lyn McClellan.

Lyn passed away this morning after a lengthy illness.

Lyn was a career prosecutor who had been at the Harris County District Attorney's Office for at least twenty or twenty-five years before I started there in 1999.  He retired in November 2008, shortly before I headed out the door.  I wrote this post about him back on the occasion of his retirement.

He was an understated but fierce trial lawyer who had handled some of Harris County's most famous cases.  He became the head of the Misdemeanor Division shortly after I started at the Office, which gave the baby prosecutors of my day the amazing opportunity to learn from a true legend of the game.  It was the legal equivalent of finding out Tom Brady is coaching your high school football team.

Lyn exemplified the ideal of leading from the front as he supervised fifteen county courts with three prosecutors each -- none of whom had more than two or three years of prosecutorial experience.  He raised a generation of us, and he held our love and loyalty throughout our careers.  He was sarcastic and funny without ever being anything that approached unkind.  He would offer advice, and if you asked him, off the cuff, to sit with you in trial, he would do it in a heartbeat.

He never bragged about his trial exploits, and if asked for a war story, he would usually tell a funny backstory to a case that had nothing to do with his trial skills.  He wasn't afraid of getting in trouble if it was for the right reason and he never criticized the prosecutors who made mistakes.  He turned all mistakes into teachable moments and he did so with a sense of humor.  If you were a baby prosecutor who screwed something up, he worked you through it so it didn't happen again.  He was the kind of boss that when you had something that you had reached your limit with, you felt no qualms about taking it to him.  You knew he wasn't going to make you feel dumb or bad for not being able to handle it yourself.

I remember being a Misdemeanor Chief in Court Five around 2001 when my Three brought me a criminal mischief case where a kid had thrown a rock at a car as it drove down the street.   The lady driving the car wanted charges upgraded to (I kid you not) Attempted Murder, and she was going on a verbal rampage toward anyone who would listen.  I tried reasoning with her and was getting nowhere.  When she demanded to speak with my supervisor, I was more than happy to pass it to Lyn.  Without ever losing his temper, he took the lady through what a trial would look like when she took the stand and tried to convince the jury that a rock-throwing teenager had murderous intentions.  

Lyn's catchphrase was loudly challenging someone to combat his logic by leading off with "I DEFY YOU TO SHOW ME . . . " and he used that phrase on me more times than I can count.  I loved arguing and messing with Lyn.  He took it all in stride and enjoyed the banter.  

Around this same time, a large group of my peers were selected to go to Career Prosecutor School in South Carolina if they agreed to extend their commitment at the Office.  Somehow, I didn't get an invite, so I asked Lyn why I had been excluded.  He replied: "We're trying to get all those people to stay longer by sending them.  We know we couldn't get rid of you if we tried."

Lyn saying thanks to me for letting him use the phone in my office.

Lyn was a leader who loved moving amongst his troops.  When I was a younger prosecutor, my group all participated in Steak Night every Wednesday night at Little Woodrow's on West Alabama.  We always invited Lyn to join us to which he would reply, "I'll show up when you start having it north of 1960."  He didn't drink, but would always come to lunch with us young ones just to hang out and talk.  He was our boss, but he was also so very much one of us.  We adored him and we admired him.

In 2000, as notorious serial killer Rafael Resendez-Ramirez (the Railcar Killer) went to trial, Lyn joined future District Attorney Devon Anderson and District Attorney Johnny Holmes (in his last trial as a prosecutor).  His job was to attack the insanity defense, and pretty much the entire Misdemeanor Division attended to watch and learn.  Lyn put on a clinic and taught us all how to handle those cases and handle voir dire on what can be an extremely tricky issue.  He was an outstanding trial lawyer.

Even after we graduated into the ranks of Felony Prosecutors and he left Misdemeanor to be the Felony Trial Bureau Chief, we all still sought Lyn's advice -- and he was always there to give it.  He was someone we would follow into battle and he was always someone who was there to help us through any battles that we were facing -- both personal and professional.

I'm happy to say that Lyn and I stayed in touch after he retired from the Office and I became a defense attorney.  I would run into him from time to time in the misdemeanor courts.  He did a little bit of defense work but only on low-level offenses where no one got hurt.  His heart always belonged to the victims of violent crimes, so I wasn't surprised to see him avoid defending felony cases.  He was also a deeply religious man who worked in prison ministries.  Although he was a prosecutor to his core, he believed in redemption.

He would occasionally come to lunch with us until his health began to fail him.  Whenever we could get him to come south of 1960, there were plenty of his former prosecutors who would come to see him.  We would talk about the old days and laugh until we turned red.  It was a nice reminder that even when you leave the house you grew up in, you are still family.

When I talk to today's current prosecutors about what the Office used to be like, they often express some level of disbelief that it was once a fantastic place to work.  They have a hard time comprehending what having an inspiring leader who backed you up and taught you at the same time would be like.  Sadly, most of them never heard of Lyn McClellan.

That's a shame, but it isn't surprising.  Lyn never sought the limelight or attention.  He just did his job and led from within.  In so many ways, he was the heart and soul of the Office.  He shaped a generation of Harris County prosecutors and we wouldn't be who we are today without him.

I'm proud to have worked for Lyn McClellan and proud to call him my friend.   He was a Giant amongst Giants in one of the most famous places in all of the Criminal Justice World.

And he was one of the best people I ever knew.

Saturday, February 11, 2023

Life at the Harris County Criminal Justice Center: The TikTok Channel

 So, as evidenced by the fact that I haven't written a blog post in several months, I don't have a lot of time to sit down and blog like I used.  That's not a bad thing.  In addition to having a busier work schedule over the past few years, keeping up with my kids' activities pretty much has me on the go all day long.

There have been plenty of times that I've seen a topic that I wanted to do a blog post on (like, say for instance, my thoughts on the November elections) but by the time I have time to sit around and actually write the blog post, its already become old news (like, say for instance, my thoughts on the November elections).

I still love talking about the CJC and all of the things going on in it.  I just need to find a way to talk about it that doesn't involve hours of writing.

So, I discovered this little-known medium called TikTok that nobody has ever heard of and decided that it really needed a pudgy bald guy to share his thoughts on a relatively obscure topic.  

I cannot begin to describe how painfully awkward making a video narrative is, and I detest the way I both look and sound on camera.  However, I do think it is a faster way to talk about ongoing topics at the courthouse, so I'm giving it a shot.  I've done three videos so far, including one on Sean Teare's not-so-shocking departure from the Office yesterday.  Feel free to check them out if you have a couple of minutes of your life that you'll never get back.

Just for the record, I completely intend on keeping the blog up and running and plan to return to it when I'm able.  Some things just need to be written down.

In the meantime, you can find the TikTok page here or look for @lifeattheharriscountycjc on the app. 

It should go without saying that the TikTok views do not reflect the views of my law partner, Cheryl Chapell, who has graciously refrained from rolling her eyes at this project in my presence.

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...