Why It Is Time for Kim Ogg to Go

I‘m always amused when I see my name attached to the label of "Frequent Ogg Critic" in articles where I comment on Kim Ogg's job performance as Harris County District Attorney.  I am quick to point out that I didn't start out as a critic of hers -- quite the opposite, actually.  I voted for her in 2016 and I was public about my support for her, much to the disapproval of a lot of my friends.

My criticisms of Kim have been earned over the years and they've all been based on what I've seen her do in her professional capacity.  It isn't personal.  It's not like she ran over my dog or prosecuted a beloved family member.

Dane "Dudegoggles" Schiller, Anna "She Persisted" Carpenter, Joe "How Dare You?" Stinebaker and the other assorted members of her campaign team who receive taxpayer salaries to spin for Kim like to tell reporters that they should remember that I'm a "twice-fired, disgruntled Republican ex-prosecutor" any time I'm quoted in the news.   But that description is dishonest.  I was fired by Ken Magidson at the behest of incoming D.A. Pat Lykos for some things written in the comments on my blog disparaging Lykos.  It had nothing to do with my job performance, and my beef was with Ken and Lykos.  Kim Ogg had nothing to do with my departure from my office.  

I was certainly disgruntled towards Pat Lykos for a great many years and I wasn't shy about expressing that on this blog.  That being said, the way Kim Ogg has dismantled the Harris County District Attorney's Office has made Pat Lykos look like Atticus Finch by comparison.  

And that's saying something.  I never thought I'd miss the stability and integrity of the Lykos regime.

As far as me being a Republican, I will admit that prior to the arrival of Donald Trump, I voted mostly for Republican candidates and in Republican primaries.  But, I think the Right Wing crazies on Twitter will more than attest that I don't align with today's Republican values by any stretch of the imagination.  

Kim's credentials as a Republican are far stronger than mine ever were.

So, where exactly did Kim Ogg lose my support?  It wasn't one single thing.  Here are the highlights of the things that Kim Ogg has done to prove that she's the worst District Attorney that Harris County has ever elected.

1.  The firing of 40 experienced prosecutors (see Bloody Friday - December 17, 2016)

Some people start off on the wrong foot, but Kim Ogg took that to new extremes before she even took Office. Prior to taking over, she let approximately 40 senior, experienced and skilled trial-proven prosecutors know that their contracts would not be renewed when she took office on January 1, 2017.

There had been rumors swirling that Pat Lykos had passed on advice to Kim that her biggest mistake when she was D.A. was not firing more people who might be disloyal to her.  Lykos had made the foolish decision to keep prosecutors who knew what they were doing despite their political allegiances and that had cost her the election in 2012.  Kim took that advice to heart and then some when she chose fealty over public safety by getting rid of the vast majority of senior prosecutors.  

Quite frankly, her first misstep was the one that was most detrimental to the Office.  In the 8 years since, the Office has lost case after case and made poor decision after poor decision because there was very little experience there to guide it.  Ogg has spent the entirety of that time blaming everyone but herself for those failures -- from the jurors, to the Defense Bar, or, most prominently, the Judges.

This would be akin to a new owner taking over the Houston Texans and firing Demeco Ryans, C.J. Stroud, Tank Dell, Will Anderson, and the entire starting line ups on both sides of the ball . . . and then blaming the referees for a not winning games.

2.  Using the Media to Make Allegations She Couldn't Back up in the Courtroom (see Victims, Phone Calls and Press Conferences -- December 20, 2016)

Ogg was still over a week away from taking office when she gave the public a very strong preview of how she planned to handle her administration when she called a press conference to denounce some of those same prosecutors she had decided to let go and threaten them with legal prosecution for what she perceived as them disparaging her.  

In the wake of their impending termination, many of the senior prosecutors let the families of victims on their cases know that they would be leaving the Office.  This is, without question, the professional and caring thing for a prosecutor to do.  Victims and victims' families can become very reliant on prosecutors over the months (and sometimes years) that a case pends through the court system and good prosecutors actually care a lot of about those people too.  I haven't been a prosecutor for over fifteen years now and I still stay in touch with many victims and victims' families from my time in the Office.  

The departing prosecutors let these families know that new people were taking over their cases, which was 100% the classy and right thing to do.  And Kim Ogg was so offended by it that she held a press conference, threatening those prosecutors with investigation and possible prosecution, which was as absurd as it was paranoid.  

Sadly, Ogg's paranoia and penchant for press conferences have not decreased over the years.

3.  Playing Games with the David Temple Case (see Kim Ogg and the David Temple Decision -- January 3, 2017 & The One Woman Review Team -- January 6, 2017)

Kim Ogg hadn't even unpacked in her new office when she made it clear that one of her new top priorities would be personally reviewing the David Temple case and deciding whether or not the D.A.'s Office would retry it.   As you may recall, Temple had been granted a new trial after having been convicted of murdering his pregnant wife, Belinda, with a shotgun.  Temple attorneys Dick DeGuerin and Paul Looney hosted fundraisers from Kim Ogg and two of her new employees, Steve Clappart and John Denholm had been actively involved in trying to pin Belinda's murder on a group of teens in the Katy area.  She had multiple conflicts of interest in making a decision on the future of that case.

Rather than recuse herself and her office, she held onto it -- first announcing that she would head a review team on the case, and subsequently announcing that she would be the sole decider on it.  Community pressure in the press and from a certain blog eventually led her to recuse herself, fortunately, but not before a lot of sleepless nights from Belinda Lucas' family.  This case alone should make any critical thinker laugh out loud whenever Ogg announces she does her jobs for the victims of violent crime.  She was looking for any possible way to dismiss the case as a favor to her political backers.

David Temple would go on to be tried again by the Attorney General's Office with prosecutors Lisa Tanner and Bill Turner.  He was convicted and sentenced to life in prison -- again -- for the murder of his pregnant wife.  Coincidentally, Kim Ogg ultimately fired every prosecutor who worked for the District Attorney's Office that ever handled the Temple case through the appellate process.

4.  County Kickbacks for Friends and Supporters

Some of those prosecutors who did not have their contracts renewed chose to file unemployment claims against the county.  That's not really an unusual thing and it has never been anything that I've been aware of the County pushing back on . . . until Kim Ogg came along.  Ogg made the executive decision to fight the claims. 

Rather than use the District Attorney's Office General Counsel or perhaps the County Attorney's Office to handle such a non-criminal matter, Ogg retained her close personal friend, Katherine Mize, an employment lawyer and Ogg Campaign Donor to fight it.  In doing so, she used Asset Forfeiture funds from the District Attorney's Office to pay Mize $425 an hour to fight the claims.  That's a hell of a lot more money per hour than any county employee gets, and I'm going to go out on a limb and guess that Mize's bill probably ended up costing more than just paying out the unemployment claim.  In this case, we got the worst of both worlds -- not only did Mize get paid a ridiculous amount to fight the unemployment claim, she lost the case.  So the unemployment claim got paid out anyway.

It still pays to be friends with Kim Ogg.  Mize repaid that generosity by being a significant donor to Ogg's campaign and even appeared in one of her commercials.  She is still routinely used to "consult" on Ogg's Human Resource matters and to date has billed the county over six figures.

Just this week, the Houston Chronicle revealed that Ogg diverted over $175,000 to her friend (and Texas GOP General Counsel Rachel Palmer Hooper to investigate Harris County Judge Lina Hidalgo's Office.  That's a pretty sweet gig if you are Palmer-Hooper, the former-5th Amendment-taking-prosecutor and partner at Baker Hostetler.  Not only is she bringing in six figures for her law firm, she's also been handed the prosecutorial power to go after a controversial Democratic figure head that all of the Republicans love to hate -- all paid for with public funds! Palmer-Hooper probably hadn't been that excited since she launched a criminal investigation into a black man trying to vote!

5.  Her Personal Battle with the Houston Police Department (see Kim Ogg's War with HPD -- February 27, 2018)

Despite Kim Ogg's recent unauthorized use of Houston Police Department Chief Troy Finner's picture in one of her campaign ads, the relationship between Ogg and HPD has been a complicated one over the years.  

The highlight of her volatile relationship with Houston's Finest hit a low point in February of 2018 when Ogg decided to temporarily revoke HPD's access to the Consolidated Criminal History Database after getting into a spat with the HPD Union.  

It's always good to see your elected District Attorney put her petty grievance contributing to a lack of information shared amongst law enforcement.  If anybody thinks that Ogg is a friend of law enforcement, they should refresh their memory.

6.  The Firing of Tom Berg & Andrew Smith (see The Mad Queen -- May 14, 2019 & A Tale of Two Firings -- November 14, 2019)

One of the reasons I didn't write off Kim Ogg completely after she fired so many prosecutors before taking office was that there were some very good people that she brought in at the same time.  

Sadly, they didn’t seem to last very long.  Tom Berg was (and remains) a highly respected lawyer in the criminal law world although he largely seemed to be in the Federal arena prior to coming to the D.A.'s Office as 1st Assistant under Ogg when she first took office.  Additionally, Berg was a combat veteran who was known to be extremely intelligent and fair-minded.  His position as 1st Assistant was a promising sign that Ogg was going to run a well-managed ship.  As those prosecutors that had escaped Ogg's initial round of firings began quitting due to low morale, Berg tried to rally the troops and get them to stay.  

He then made the fatal mistake of disagreeing with Ogg on an issue and she fired him on the spot.  It was yet another example of Kim Ogg's legendary temper self-sabotaging her own Administration.  

A few months later, Ogg would also fire Andrew Smith, a longtime prosecutor who was very well-liked and respected by both prosecutors and the defense bar.  Smith had relayed to a defense attorney that Ogg had stated to him that a different prosecutor's firing had been based on who that prosecutor was married to.  When Ogg found out this information had been shared, she demanded that Smith put on the record that he had been lying when he conveyed that information to the defense attorney.  Smith refused because, you know, that would be perjury.  So Ogg fired him as well.

7.  The Death Chart Inquisition (see Kim Ogg's Pandemic Witch Hunt -- April 17, 2020 & Texas Monthly's The Hunt for a Leaker at the Harris County District Attorney's Office -- May 15, 2020)

Lots of craziness was going on in the early stages of the Corona Epidemic and the Harris County Criminal Justice World was absolutely struggling to stay on top of everything as courts were closing, trials were stopping, arrests kept coming in, and the jails were trying to balance public safety against further spreading a deadly disease.  The word "chaos" would be a massive understatement.

In the middle of it all, those experienced and dedicated line prosecutors who had thus far survived Kim Ogg's firing wrath were trying to keep the System afloat in the individual courts that they were in charge of.  As all of this was going on, an upper administration employee created an attendance chart to document how the employees of HCDA were fairing against the virus.  One of the options on the chart encouraged supervisors to notify the Office if anyone had called in dead.  Since most people in the Criminal Justice World tend to have a strong sense of Gallows' Humor, most people found this to be hilarious.

A poorly made screenshot of the "death chart" began making the rounds of prosecutors' text messages and it soon leaked outside of the Office.  People had a good laugh over how dumb of an idea of having a "death chart" was, but it wasn't anything too damaging to the Office's reputation.  Everyone thought it was funny.

Everyone except for Kim Ogg, that is.  With prosecutors and investigators working via laptop and cell phone while quarantining and trying to manage an unprecedented crisis, Kim Ogg had one priority and that was to identify whoever had initiated this innocuous joke.  She diverted resources away from managing that Covid crisis to hunt down her senior prosecutors -- demanding their office computers and attempting to strong-arm them into turning over their personal cell phones.  Ultimately, she would lose around eight or nine more senior Felony District Court chiefs from the already hemorrhaging Office, right at the time when the CJC needed their leadership the most.  

Once again, Ogg hurt her own office in the name of her ego.  Funny side story:  the author of the Texas Monthly article later told me that he figured I must have been embellishing when he first read my blog post about the Death Chart Inquisition and that he couldn't believe it when he found out it was all true.

Full Disclosure: I got a pretty awesome new law partner out of the deal, so it wasn't all bad.

8.  The Scapegoating of the Judges (see Scapegoating the Judges -- August 14, 2021 & Kim Ogg blames the Judges . . . yet again -- August 6, 2022)

I'll be the first to admit that being a prosecutor was an easier job when I was there for a lot of reasons.  We had better leadership.  We had better training.  We also had a field of judges who were almost exclusively ex-prosecutors.  Prior to around 2008, most judges had taken the bench straight from the D.A.'s Office.  Rulings went our way on pretty much any debatable issue and the punishments were high.  Being a prosecutor in Harris County during those years definitely meant having the home-field advantage.  That's just a fact.

Now most judges on the bench have both prosecutorial and defense experience and generally, the judges are more open-minded on issues that previously would have been no-brainers to rule for the State.  That's how it is supposed to be if we actually care about our Constitutional principles.  

But a neutral judiciary is not as conducive to convictions as it used to be, especially not when the District Attorney has run off the most experienced trial prosecutors.  The Office's win/loss ratio plummeted and politician Ogg had to find something to blame that wasn't herself.  The Code of Judicial Conduct prohibits judges from commenting on cases or responding to the vast majority of Ogg's criticism, so she knew that she could safely punch at them without them being able to punch back.

And punch away, she did.  

Kim Ogg made it very clear that a fair judge was a bad judge, and she attacked them at every turn.  Whether she was having her "community outreach team" post under pseudonyms on social media to privately attack them, or giving CrimeStoppers hundreds of thousands of dollars so that her old friend Andy Kahan could attack them on Fox 26's Breaking Bond, Kim urged her Republican allies to hold the judges accountable for her Office's failings.

Under Kim Ogg's leadership, the Office has made it very clear that it has no interest in a fair trial and they blast the judges that hold them accountable to the high Burden of Proof that they are supposed to meet in each and every case.  It's no wonder why Ogg is so well known for trying her cases in the media rather than in the courtroom.  

9.  Political Prosecuting for Publicity (see Raps, Rides, and Kim Ogg's Campaign by Indictment Policy - September 15, 2020)

The most frightening thing about Kim Ogg as District Attorney, without question, has been her use of prosecutorial power to file charges against people to court public approval.  She has done it since the beginning of her tenure as District Attorney and she continues to do it to this day.  Whether it being filing ridiculously over-inflated criminal charges against the Arkema corporation, trying to indict as many police officers as humanly possible that could be even tangentially related to the notorious Harding Street, a respected doctor who gave a Covid vaccination to his family when no one else wanted one, or anyone who works for County Judge Lina Hidalgo, Kim Ogg has shown time and again that if an indictment will get her some positive press, she's going to seek it -- regardless of whether or not the evidence is there to support it.

Sadly, that plan seems to work for her in the public relations realm and nowhere has that been more evident than in her investigation into Hidalgo.  Hidalgo is definitely a controversial figure in Harris County politics and is the lightning rod target of the displaced Republican community.  As noted above, Ogg employed hardcore Republican operative Rachel Palmer-Hooper to investigate Hidalgo's office (although she Ogg kept Palmer-Hooper's involvement shrouded in secrecy for years).   Between leaking search warrants to the Republican State Senator Paul Bettencourt and the media, Ogg is milking the good vibes of going after Hidalgo for all they are worth. 

But if one were to take a closer look at these highly publicized charges that Ogg's District Attorney's Office has obtained, they might notice something missing from them all -- final convictions.

Dan Cogdell and Rusty Hardin and company handed the District Attorney's Office its proverbial ass in the Arkema case with directed verdicts (which, for the layman means that the cases were so weak that the judge directed the jury to find the accused not guilty).  The Gokal case was no billed by a Grand Jury.  The other cases, Ogg has steadfastly avoided trial on, so as not to suffer the same humiliation that she received during Arkema.  Even the notorious case of Gerald Goines and the Harding Street Raid has now pended over five years without a trial and the cases against the Hidalgo staffers has no trial date set.  

Ogg's Office has played to the lynch mob mentality of making accusations that they can't prove.  That may work in the comments section of the internet, but that's not how we do things in a court of law -- especially not when people's lives hang in the balance.

10.  The Destruction of the Harris County District Attorney's Office

For better or worse, the Harris County District Attorney's Office used to have the reputation of being one of the most formidable offices in the State and the Country.   It was an office staffed from bottom to top with prosecutors that knew what they were doing in trial and were trusted by their supervisors to do the right thing in how they handled their cases.  Prosecutors knew their cases and took the righteous ones to trial and dismissed the ones that they knew they couldn't prove.  As long as you made your decisions for the right reasons, you didn't have to worry about your job.

Kim Ogg has turned that idea on its head and the Office has cratered because of that.  From starting her tenure by firing forty experienced prosecutors to running off countless more over the past eight years, she's run off scores of talented trial lawyers and leaders from that Office.  She's also created a culture of fear that those prosecutors who remain are afraid that dismissing a case (no matter how weak it is) could get them fired.  As a result, plenty of non-trialworthy cases are going to trial and the District Attorney's Office is suffering Not Guilty verdict after Not Guilty verdict.

Not to sound like too much of an Old Timer, but when I worked for the District Attorney's Office in the late-90s/early 2000s, the conviction rate at trial was well over 90%.  Now it is barely over 50%.  

Courtesy of Jeff Ross' Show Me the Justice

Regardless of your views of the Criminal Justice System, that statistic should worry you.  A Not Guilty verdict means one of two things in the vast majority of cases:  Either 1) the prosecution failed to prove a case that they should have been able to; or 2) the prosecution took a case to trial that they shouldn't have.  Neither one of those scenarios is a good one.  

Contrary to popular belief, defense attorneys such as myself don't relish the idea of inexperienced prosecutors who don't make good decisions.  Sure, it might make a trial easier, but overall it makes our jobs harder.  Prosecutors who don't understand the law and procedure, or (worse) are too scared of the repercussions for dismissing a crappy case end up prolonging cases unnecessarily for our clients.  The same principle applies to negotiating cases with prosecutors that don’t have enough trial experience when assessing a plea bargain offer.  

In short, anyone involved in the realm of Criminal Justice will tell you that there is nothing more beneficial to the system than a good, smart, experienced, and ethical prosecutor.  The line prosecutor who goes to court to represent the State of Texas on a daily basis has the power to truly to promote Justice.  Kim Ogg has eroded that for Harris County and she has done so in a shockingly short amount of time.

Her time needs to be over and it needs to be over now.

All in all, my thoughts on Kim Ogg are quite simple:  she's out of control and she has been since day one.  She isn't there to serve justice.  She's there to make sure that justice serves her.  She is unethical.  She is a fool.  She is corrupt.  She has destroyed the Harris County District Attorney's Office from within.

And it is long past time for her to go.

Vileness

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.

Amazing!

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.

Scapegoating the Judges

When I was growing up in Bryan (which was a far smaller town in the 1970s than it is now), I was brought up under the belief that judges were the closest thing to nobility that a small Texas town had to offer.  We only had one District Court Judge in Brazos County back then (compared to the whopping three, count 'em, THREE that Brazos has now), and he was a family friend.  When our families socialized, Judge McDonald was treated with a little more reverence by us kids because of the fact that he was a judge.

[On a personal side note, Judge W.T. "Tommy" McDonald passed away this past year.  He was a dear, sweet man who was always very kind to me growing up and he kept up with my legal career from law school on forward.  He meant a lot to our family and he is very missed.  He deserved all of the love and respect that he received.]

After 22 years of being a lawyer, I recognize that judges are a little more fallible than I was raised to believe.  As any practicing lawyer can tell you, some judges are amazing and worthy of having a courthouse named after them.  A good judge follows the law and the rules of evidence, regardless of how unpopular the results might be.  Intelligence, bravery, humility and selflessness are hallmarks of being a good judge -- even if the results get you unelected by a fickle electorate. 

Not all judges live up to that standard.  I don't know a lawyer alive that couldn't spend hours telling a story about a judge or two, or five, or ten, that he or she deemed to be crazy.  

Judges are fallible just like the rest of us.  They make right calls.  They make wrong calls.  Their very job description calls upon them to hear one case at a time and make rulings based on the law and evidence as it applies directly to that one case.  By definition of the adversarial system, when two sides appear before a judge, one is likely to walk away from the experience feeling more disappointed than the other.  Maybe that results in the judge being complained about, a ruling being appealed, or even a grievance being filed. 

But while judges are certainly not perfect and are often criticized,  I have never seen the level of animosity currently being leveled at the judiciary as a whole as I am seeing in Harris County right now.  If it weren't so incredibly misguided, it would be almost comical.  For the past year, everyone from the District Attorney to the media to the Legislature has decided that the current batch of Criminal Court judges are apparently the single biggest cause of violent crime in the City of Houston.  

These 22 District Court and 16 County Court Judges aren't public officials trying to navigate an unprecedented pandemic crisis.  They are obviously all crime bosses trying to cause chaos in the streets by steadfastly refusing to go to trial and just releasing bloodthirsty criminals into the street as an alternative, right?  At a minimum, they've all shut down their courts and have refused to come to work, leading all of these violent offenders to be released on PR bonds so they could go kill again, haven't they?  Haven't they stopped having trials because they are lazy or too scared to risk coronavirus?  At least, that part is true, isn't it?

That's what we keep hearing if you watch the local news.

But the reality is that the behavior of the Judges during the Pandemic is actually quite the opposite.  From the onset in the spring of 2020, the Judges had to step into the fray quickly and efficiently as they were called upon to balance public safety against the constitutional rights of people accused of crimes.  It was a task that they had some level of familiarity with, having navigated a courthouse shut down due to Hurricane Harvey, but Hurricane Harvey would ultimately prove to be only a light dress rehearsal for the full-fledged crisis that Covid-19 has proven to be.

While the majority of defense attorneys and prosecutors shifted to Zoom appearances as quickly as possible, the vast majority of the judges in Harris County were still going into their courtrooms in person.  They had the option of designating their home addresses as temporary "courthouses" so that they too could Zoom from home, too, but unlike prosecutors and defense attorneys, those home addresses would have become publicly available.   Not to mention, all of those defendants in custody were at the courthouse.

So, it's kind of funny to me when I see posts like this one on Harris County District Attorney Kim Ogg's Facebook page:

But, what do you expect from somebody with a "Trump Won" avatar surrounded by a circle that says "I Stand for Medical Freedom" and "#StopTheMandate"?  I'm sure she probably wasn't really interested in the truth behind the job a bunch of Democratic judges have been doing.  Luckily, there are people down at the courthouse who know the truth of the matter and will stand up for the maligned judges, right?  Like perhaps, Dane Schiller, the spokesperson for fellow Democrat Kim Ogg, for instance.

Okay, never mind.

The sad thing is that the media is all over it, regardless of the truth of the matter.  Back in July, Judge Brian Warren held capital murder suspect Xavier Davis at No Bond on two out of his five cases pending in Judge Warren's court.  On the remaining cases, he set bail amounts that totaled well over half a million dollars -- no that it mattered, since the two No Bonds meant Mr. Davis wasn't going to be bonding at all.  That logic seemed to be lost on Channel 13's Jessica Willey who filed this article, arguing how offensive it was that Judge Warren had set a bond at all.

That's kind of like arguing that infinity plus half a million isn't a sufficiently high bond.  

The reality of the matter is that any "spike" in crime statistics coupled with a lack of cases being taken tp trial is the result of many factors -- the least of which, in fact, is the actions of the Harris County Judges.  If the media bothered to do a little investigation, instead of trying to push alarming headlines, one might inadvertently come to the conclusion that, for the most part, the judges are actually doing a pretty good damn job under the circumstances.

So, who or what is actually to blame?  Lots of things.  Let's look at (what should be) the obvious ones.

1.  Covid-19 -- It is absolutely astounding to me that critics of the judges act as if, for no particular reason, one day last spring, the judges all decided to stop trying cases and began letting people out on low bonds.  Attacks from critics seem to be ignoring the pandemic in the room.  If Covid-19 changed everything around the world, I don't know why anyone would think that the Harris County criminal justice system would be immune from having to change as well.  Judges, who have the power to order human beings (defendants, attorneys, witnesses, and jurors to name a few) into their courtroom, had to decide whether or not they should do so.  

On the misdemeanor side of things, this would seem to be a no brainer.  The most serious of all misdemeanor cases carries a maximum punishment of one year.  It's difficult to justify making a person come to court and risk a potentially fatal disease for a relatively minor case.  On the felony side, the judges recognized that although they dealt with serious cases, many of the settings they held were not important.   Cutting out personal appearances was something that wasn't common prior to the docket but they took the bold (and, in my opinion, smart) move of waiving appearances.

And as for jury trials?  If you don't feel much sympathy for a defendant who is called upon to show up for court (because, you know that whole "innocent until proven guilty" phrase is just a meaningless phrase to pay lip-service to when we're in grade school, right?) how about citizens called for jury duty?  That hits a little closer to home, doesn't it?  For all of those falsely claiming that judges haven't been holding court, how do you feel about coming down to NRG with a several hundred folks from all over the county who may or may not be vaccinated and/or infected?

2.  Jail Overcrowding --  For all of those screaming about judges releasing violent offenders on bond, I'd like you to offer your suggestion on where to put all of these individuals that you want off the street.  The Harris County Jail seems to have a capacity to house somewhere between 9,000 to 10,000 people (based on my amateur reading of the Harris County Sheriff's Office web page.  In this article written by Nicole Hensley, Sammantha Kettererer and other staff writers for the Houston Chronicle on July 9th, 2021, the authors noted that in 2020 alone, 89,600 people were charged with felony or misdemeanor cases.  I'm no mathematician, but if the judges were to keep them all in jail, we would need at least 8 more jails for starters.

Simple math dictates that not everyone charged with a crime will be staying in custody.  Considering the fact that keeping thousands of people incarcerated in close proximity is like pouring gasoline on a fire when it comes to the spread of Covid, one has to recognize that there was some level of urgency to reduce the population if possible.

The judges had to set bonds and in many cases give personal recognizance bonds to help alleviate the crowds.  With juries slowed down to a trickle (if not a complete stop), cases were coming in but they weren't moving out.  Something had to be done.

3.  The Bonding Industry --  Without getting too far out in the weeds here (hopefully), the settlement from the Federal lawsuit over misdemeanor bail bonds almost completely wiped out the need for a bail bonding company for people charged with misdemeanors.  If you were a bonding company, that's the erasure of probably at least half of your business.  Some adjustments are going to have to be made to the business model, and that means being more flexible on the felony bonds you hope to make.

It used to be the conventional wisdom that a bonding company required 10% of the overall bond from the defendant before posting.  Now, I'm hearing stories of bonding companies only requiring 5% or less.  They are also more flexible with payment plans and what they require down.  So, if you are reading a news article that talks about how some teenaged gang member made a six-figure bond, you should probably know that there's a bonding company bending over backwards to stay in business that probably helped facilitate that far more than a judge did.

Side Note:  In the case referenced in the above link, Judge Ana Martinez was criticized for setting a bond of $750,000 for Robert Soliz, who was charged with killing a police officer in a road rage incident (the officer was not on duty or in uniform based on my understanding). The criticism was completely unwarranted for several reasons.  First of all, Judge Martinez's predecessor, Randy Roll, set that bond prior to leaving the bench.  Second, $750,000 for a non-capital murder bond is incredibly high.  When I was a prosecutor, the standard bond for murder was $50,000 just to give you a frame of reference.

4.  The Prosecution --  One of the things that I've been genuinely surprised by during the pandemic has been Democratic District Attorney Kim Ogg's unabashed willingness to blame all of the problems in the Harris County Criminal Justice System on her fellow Democrats in the judiciary.  In addition to Dane Schiller's comments on Facebook (posted above), one of Ogg's representatives recently spoke at a local meeting of Democrats and literally uttered the words "Blame the judges!" when she was fielding questions about crimes being committed by offenders out on bond.  

I mean, Ogg has always been a solid pitcher when somebody needs to be thrown under a bus, but her war on the judiciary has been absolutely unabashed.  Given her prominence in the Democratic Party, I'm surprised by her utter lack of loyalty.  She doesn't even try to soft-sell the issue by pointing out the extraordinary conditions caused by Covid.

To make matters worse, Ogg is conveniently sidestepping her Office's own involvement in the problem.  For a great many months (maybe even a year, I'm not sure), the D.A.'s Office didn't send prosecutors to daily dockets.  I'm not faulting that.  She has a duty to look after her employees' safety, but the lack of prosecutors in court was most definitely a contributing factor to cases not being worked out (and thus contributing to the backlog).  

And a lot of the proseutors haven't been exactly stellar about being responsive to e-mails and discovery requests in the downtime, either.  Not all of them.  But a lot of them.  None who live in my neighborhood.  Just saying.   Let's move on.

Oh, and by the way, for those of you outraged that a judge would give a repeat offender yet another bond even on a violent offense, you may want to know that prosecutors have to file a motion in non-capital cases to hold a defendant at no bond.   If that motion gets filed, the defendant is entitled to a hearing on it.  The judge doesn't get to just hold someone at no bond without those steps being made.  

So the next time Kim Ogg or Dane Schiller (or some other surrogate of Ogg's campaign machine that she employs at the D.A.'s Office with taxpayer money) says "blame the judges" when a repeat offender gets a new bond, it might behoove the media to ask whether or not the D.A.'s Office filed a Motion to Deny Bond that the judge overruled.  It makes a difference and the truth matters.  At least it matters to people other than Kim Ogg.

5.  The Defense --  I would not be intellectually honest if I didn't acknowledge that the Defense Bar plays a role in some of the delay associated with the Criminal Justice System and the Pandemic. Of course, that's actually part of our job description and we wouldn't be effective lawyers if we weren't doing everything we legally could on behalf of our clients -- regardless of how unpopular it makes us with the general population.  

I'll fight tooth and nail to keep from picking a jury at NRG Stadium because I don't believe that it can be done effectively.  If that means my client stays out on bond while I continue to delay going to trial, I'm fine with that.  I love going to trial and I think anyone would be hard pressed to label me as a trial dodger in normal times, but I wouldn't be doing my job by agreeing to do something that I think keeps my client from receiving a fair trial.  I'll file every motion for continuance based on Covid that I can.  I'll file every written objection to NRG on every case. 

Some judges have granted my motions.  Others haven't.  All have considered them, which is what they are supposed to do, because they're judges.  If they agree that a fair trial can't happen during Covid, they are bound by duty not to proceed with one, no matter how much it pisses off the general public.

I'll do everything within my legal means to keep my clients out on bond.  If that makes you angry as a citizen, that's cool.  I understand.  It's part of my job.  But if you're charged with a crime, you're probably going to want to call me.

6.  The Police --  I was amused to see former Houston Police Department Chief Art Acevedo kissing up to Kim Ogg on Twitter the other day -- especially when a primary cause for delays in discovery (which subsequently delays the resolution of cases) is the police.  Although I'm told that the situataion has drastically improved in the past few weeks, under Acevedo's tenure, defense attorneys were told that we had to wait for six months before we could even ask for an officer's body-worn cameras from HPD.  Offense reports and evidence are slow in coming, and that contributes to the slowdown, as well.

Defense attorneys have a duty to review all the evidence and if it hasn't been turned over by the police, we can't do that.

There are more factors involved in the rise of crime during Covid and we could spend hours and hours discussing things like desperation and socio-economic status during times of crisis.  Crime rises during times like these, historically.  I've listed six factors other than the judiciary.

Here's the big difference between these factors and the judges:  the rest of us can defend ourselves when attacked by the media.  Judges are bound by judicial canons on what they can and can't say when responding to questions like, "Why did you set a bond on this case?"  They are literally forbidden from commenting on matters pending before them.  That makes them an easy target for the media, Republicans seeking to re-establish a foothold in Harris County, the police, anti-crime activists, and a shameless District Attorney.

As I said in the beginning, the judges are not infallible and none of them possess a crystal ball that will tell them whether or not a defendant will commit a violent offense while out on crime.  I've seen firsthand the reaction of several judges when they learned that someone out on bond committed a crime of violence -- and in some instances, killed someone -- while out on bond in that judge's court.   I've yet to see one of those judges take it lightly.  In the cases where a fatality was involved, they've been devastated.  Anyone who portrays them as throwing caution to the wind or not caring about the ramifications of their decisions simply hasn't been in the courtroom.

On this coming Monday, I'll hit my 22 year anniversary of practicing criminal law in Harris County, Texas.  The past year and a half under Covid conditions have been like nothing I've ever seen (and that includes two hurricanes and a tropical storm).   There have been many ideas and counter-ideas.  Some I've agreed with and some I haven't.  Throughout it all, the judges have done their best to manage all of the competing interests and keep the Constitution and the laws and procedures of the United States and Texas protected.  They've worked their asses off, only to be slammed at every turn.  

The reality is that the majority of the judges deserve to be commended, rather than condemned.

Kim Ogg and the Backlog Blame Game

Kim Ogg had jury duty Wednesday.

How do we know this?

Because like any good self-promoting and self-aggrandizing politician like Kim Ogg, she made sure that the world knew it through multiple Twitter posts that let a breathless audience know that even super important people like her Royal Oggness will take time amongst the unwashed masses to serve on jury duty.  

And like most jurors, she, of course, brought a photographer and called Channel 13 to take pictures of her during her appearance.  I mean, the rules say you can't bring your children to jury duty, but it doesn't say anything about not bringing your photographer!

I heard from multiple, credible sources that once Ogg was assigned to a court for the actual voir dire process that she approached the judge and asked to be excused before having to sit through something so tedious.  That request was reportedly granted, so one might make the distinction that although Ogg showed up for jury duty, she did not, in fact, serve on jury duty.  But why let that slow down a photo op?

To be fair, she never claimed to have done anything other than to have "showed up," but I think most of us would agree that actually participating in the process would have been more helpful than just being counted as present before taking off.

But, Kim Ogg half-assing her Civic Duty isn't the point of this post.  What actually was notable was her third tweet about her mini-experience at Jury Duty:

There are a couple things to unpack here. Let's start with the issue that Harris County's Elected District Attorney seems to think that people have to register to be a juror.   One brilliant, Eagle-eyed Twitter follower caught onto this mistake quickly.

Fun fact:  people don't register to be jurors.  In the State of Texas, when you get your driver's license, you are added to the pool of potential jurors who receive a summons.  Otherwise, we'd never have enough people.  The fact that Kim Ogg would misstate something so basic is wildly amusing because of how simply wrong it is.  Somewhere out there, I can envision a multitude of Ogg followers blindly Googling "How do I register to be a juror in Harris County?"  

Her Tweet was so stupid, that I look forward to seeing a Tweet soon from Mark Goldberg that reads:  

"Late yesterday afternoon, a Tweet went out from DA Ogg that should have gone out under my name.  What you actually got was a draft form with some blatantly erroneous misinformation about needing to "register" for jury duty that was inadvertently distributed in that form, and I apologize for any confusion."

But Ogg's lack of basic Civics Knowledge isn't what I find interesting from that last tweet. What was far more interesting was this quote:

"Folks, we have to tackle this case back log.  Crime victims and their families deserve their day in court."

While Ogg is correct that there is a tremendous backlog of cases in Harris County due to the Covid-19 Crisis, her Tweet seems to neglect the fact that the District Attorney's Office is second only to the virus in adding to that backlog.

As I noted in this post from last December, prosecutors continue to contribute to the backlog of cases by failing to make reasonable punishment recommendations on cases in light of the circumstances that we are all facing.  It certainly isn't all of the prosecutors who are doing that.  Many prosecutors remain a pleasure to deal with and a picture of reasonableness.  But others remain either 1) oblivious to the totality of circumstances surrounding the Criminal Justice System at this time; or 2) too scared that they will get in trouble with the Upper Administration for making an excessively "lenient" plea deal.

Over the past year, I've had at least three different clients whose plea bargain offer was literally the maximum sentence allowable under the law.  I'm not saying that the charges weren't serious but, as I told one prosecutor, throwing around the maximum sentence isn't a plea bargain offer, it's a dare to go to trial.  If the offers coming from the prosecution offer zero incentive to plead, then of course the case is going to get set for trial.  In some cases, that may be appropriate, but more often than not, that approach to plea bargaining is nothing short of absurd.

The more troubling aspect of this is that too many prosecutors are using high recommendations as their default when they are unfamiliar with the case.  I was recently talking to a fellow defense attorney who was frustrated with a prosecutor who set a case for trial rather than offer a lower recommendation because the prosecutor was continuously unable to make contact with the Complainant.  The Complainant, as is true in many domestic violence cases, was avoiding speaking to the prosecution because she no longer wanted charges pursued.  Rather than dismiss (and potentially refile the case later) or offer a lower recommendation, the prosecutor decided it was easier to set it for trial and add to the backlog.

I ran into another fellow defense attorney friend in court last week.  He seemed genuinely perplexed by an extraordinarily high plea bargain recommendation that he had just received from a young prosecutor.

"Is it just me, or are these recommendations suddenly insane?" he asked.

I told him my theory was that younger prosecutors knew that they would never find themselves on the wrong side of the Ogg Administration for offering a recommendation that was too high.  A plea bargain offer that was too low couldn't be rescinded once accepted, and that could get them in deep crap with an elected D.A. who was known to fire people for embarrassing her in any way, shape, or form.  A high recommendation can always be reduced when and/or if appropriate, but it can't be raised once accepted.  Of course, it would become the natural default of the indecisive prosecutor to name an astronomical number and then sort it out somewhere later down the road.

This problem is further compounded by the fact that the massive caseload is causing prosecutors to fall way behind in completing tasks necessary to resolve cases.  Complainants aren't being located.  Discovery isn't being turned over in a timely manner.  Hell, the Houston Police Department is so backlogged that prosecutors aren't even allowed to ask for body-worn camera footage on a case until six months after the offense.  Additionally, complaints about prosecutors who don't return e-mails or phone calls have skyrocketed during the pandemic.  Part of this is exacerbated by Ogg's displease-me-and-I-will-fire-you policy that has led to a higher turnover rate, which, in turn, leads to prosecutors frequently moving from court to court and caseload to caseload.

And so another case is added to the backlog.

If a prosecutor doesn't fully know his or her case, then there is no way he or she can reasonably negotiate on it.  [SIDENOTE:  If you are a prosecutor and you are getting mad reading this, then I'm probably not talking about you.  You're great!  The person in the next cubicle over is the one I'm talking about.  You know that person is terrible.]

Just for fun, let's talk about what happens when a prosecutor does evaluate a case and sees that from a factual standpoint that it probably isn't the greatest case for the State of Texas.  Maybe it needs to be dismissed, or maybe it just needs to be given a low plea bargain recommendation.  It happens.  Cops can't be right 100% of the time, can they?  Prosecutors who don't want to pull the trigger on a dismissal or a low recommendation because they don't want to get in trouble have a couple of options.

A prosecutor can get a case No Billed by the Grand Jury.  There's an old saying about a Grand Jury indicting a ham sandwich, meaning that there is so little evidentiary oversite in the process that even a ham sandwich can be indicted.  That's certainly true. In today's digital age of electronic files, I've now had not one, but two cases that were indicted by accident, literally.  In one of those cases, the Grand Jury just rubber stamped my client's paperwork because it had gotten stuck to another case.  They hadn't even heard evidence on the case!  True story, but I digress.   The flip side of prosecutors being able to indict anything is that they can also utilize the Grand Jury process to get rid of anything -- including weak cases.

Back before the Houston Chronicle's Lisa Falkenberg's articles about Grand Jury abuses that won her a Pulitzer Prize and got rid of the "Pick a Pal" System of selcting Grand Jurors, you didn't really hear the Defense Bar complaining too much about the Grand Jury System.  The reason for that was two-fold.  First, the threshhold of proof for a case being indicted was so low that an indictment was normally expected.  Second, and more important, any Defense Attorney with any amount of sense knew that a solid Grand Jury presentation was a fantastic way to make a terrible case go away and go away early.

Take, for example, a murder case with strong self-defense issues, or perhaps, every single officer-involved shooting ever (until recently).  The decedent's family wants the accused's head on a platter.  The prosecutor knows that the case is terrible and has no chance of achieving a guilty verdict.  However, the prosecutor knows that the decedent's family is going to be tremendously upset and tremendously vocal if the prosecutor were to just dismiss the case.  The answer was always the Grand Jury.  

The Grand Jury met behind closed doors.  The Defense Attorney presented a packet.  The Prosecutor presented the packet to the Grand Jury and acknowledged that he or she didn't really disagree with what the defense attorney was saying.  Voila!  The Grand Jury returns a No Bill and the case is over.  The Prosecutor could sympathize with the deceased's family but blame that damn Grand Jury.  Some thought it was chickenshit.  Others found it to just be a practical tool under the circumstances.

But, getting back on topic, I bring this up because the Ogg Administration's culture of fear has led to prosecutors indicting cases, even when they shouldn't be.  The Defense Bar is still putting forth packets.  We even offer to let our clients testify (sometimes).  But more often than not, the indictment is coming down because the prosecutor has the power to just say "Yeah, that's all well and good, but you only have to find Probable Cause that a crime was committed.  Defenses can be argued later at a trial."  

And so another case is added to the backlog.

The other thing that a prosecutor can do to help reduce the backlog is agree to a court trial.  Let the judge decide whether or not a case is proven beyond a reasonable doubt.  Or let the defendant plead guilty to the judge without an agreed recommendation to see what punishment the Court feels is appropriate.  The Court could order a Pre-Sentence Investigation (PSI) report prior to sentencing.

But first, the State of Texas by and through her Assistant District Attorney, has to waive their right to a jury trial.  Without getting into the arguent of the absurdity of the idea that the State has a right to a jury trial, just understand that the prosecutors have to agree for a trial to be tried to a judge.  They have to agree to let a Defendant plead to a PSI or without an agreed recommendation to the judge.  If the State doesn't agree to that (by waiving the State's right to a jury trial), then a jury trial must be held to determine guilt/innocence.  This has always the case, but it has happened with more and more frequency under the Ogg Administration.  Although judges are elected officials entrusted to by the public to hold their positions, just like the District Attorney, the Ogg Administration has decided to block many of them from being able to dispose of a case.

And so another case is added to the backlog.

Kim Ogg likes to blame other people for things.  She is a politician after all.  She blames defense attorneys for the backlog. She blames Hurricane Harvey.  She blames COVID.  She blames the Freeze.  She blames the judges for letting too many people out on bond so that they won't plead guilty, thus causing the backlog.  She blames people not showing up for jury duty.  She even went so far as to poison the well of potential jurors send out an e-mail blast applauding herself for her jury "service" that encouraged jurors to show for service to "help give crime victims' families their day in court." (NOTE:  No mention of those folks presumed innocent under the law who might also want their day in court).

Ogg has blamed everyone but herself and her ridiculously stringent (and anti-progressive) policies for the backlog in cases.  That's what happens when you elect a politician to a job that shouldn't be political.

I hope you'll remember that when you go "register" to serve on jury duty.

The Civil-Prosecutorial Alliance

Although it has been almost twenty years, I still vividly remember the first intoxication manslaughter case that I handled as a prosecutor.

Like most cases of that nature, it was heartbreaking.  More heartbreaking than most, actually.  The victim was a young student at Rice University.  She and three of her friends had gone to her parents' house to eat dinner before going to get ice cream at Amy's Ice Cream at Shepherd & Highway 59.  When they were finished with their dessert, they headed back towards their dorm on campus.  It couldn't have been a more innocent evening for a group of college students.

Traveling down Bissonnet at over 70 miles per hour was the highly intoxicated defendant in a large-sized pick-up truck.  He'd been drinking all day and had reached the point where he had no inhibitions about how recklessly he drove.  As he approached the intersection with Durham, there was a red light, and a car stopped in the lane ahead of him.  Not to be slowed down, he swerved around the stopped vehicle, moving into the turn lane so that he could just keep on speeding down Bissonnet.  

The car full of Rice students proceeded into the intersection because they had the green light.  The defendant's truck t-boned their small car at well over 70 miles per hour.  The students' car was flung like a toy across a neighboring parking lot, coming to rest against the concrete steps leading into a small bookstore.  The young lady driving, who only an hour earlier had told her parents that she was going for ice cream before going back to the dorm as she said goodbye to them for the last time, was killed instantly.  The other three passengers were badly injured but ultimately survived.

While the case was pending trial, I got to know her parents. They were wonderful people.  Their daughter was their only child and they were understandably and irreparably devasted by her loss.  

At least one of the surviving passengers initiated a civil lawsuit against the Defendant.  One day, the civil attorney for the survivor showed up at the Office unannounced and subsequently told me that she was there to review my evidence in the case.

And although my heart and spirit were definitely aligned with her motivations, I had to tell her no.

And it was a very firm "No."

It wasn't just the fact that sharing evidence with a civil lawyer was against office policy at the time (although it was).  There was just something unseemly about it.  No matter how noble the civil lawyer's motivations were or how noble mine were, one did not need to be sullied by the other.  My goal was to put the man who had killed one innocent girl and injured three others in prison.  It wasn't to seek money from him, regardless of how much he should be paying out for the lives he destroyed.

Ultimately, a jury sentenced him to twelve years in prison.  He served his time.  I have no idea what became of the civil suit.  I wasn't supposed to know.  The purpose of my role as an Assistant District Attorney was different and it wasn't affected by monetary motivations.

I'm reminded of that case because of the apparent alliance that has developed between Harris County District Attorney Kim Ogg and private civil attorney Michael Doyle over the pendency of charges stemming from the infamous botched Harding Street raid that led to the deaths of Rhogena Nicholas and Dennis Tuttle.

For those of you following along at home, Michael Doyle is a prominent Houston civil attorney, and apparently a supporter and/or friend of Kim Ogg.  I have no idea what their initial tie to each other was.  Perhaps it stems from Ogg's days as a civil lawyer with her father, where some of her "ethics" decisions were every bit as questionable as they are now.  

As I wrote in my previous post on the ill-fated Arkema case, when the District Attorney's Office bit off more than it could chew by filing a huge environmental case against a chemical company, it quickly became apparent they needed some serious help.  Like a knight in shining armor, Michael Doyle suddenly and inexplicably stepped in to try it pro bono.   For those of you who aren't familiar with the business side of running a law firm and what his involvement entailed, suffice it to say that he donated hundreds of thousands (if not more) dollars worth of his (and his firm's) time and effort into trying a case for free.

That's a huge gift to us taxpaying citizens of Harris County, in theory, but it really begs the question as to "why on earth would he do something like that?"  Spending that much time and effort on being a special prosecutor on a case as complex (and yet still weak) as Arkema is what could be called a "firm killer."  A lawyer could potentially drive his firm into bankruptcy while working on such a large pro bono case.  I honestly don't know the answer to this question, but what's in it for Doyle?  If his volunteerism was really so magnanimous, Harris County should be honoring him with a parade or something -- despite how poorly the trial ultimately turned out for him and Ogg.

While the Arkema case was still pending, the disastrous raid on Harding Street occurred.  Within days of the raid, a prominent civil attorney suddenly appeared like a knight in shining armor to handle the wrongful death civil cases against those responsible for the debacle.  Coincidentally (or maybe not), that attorney was Michael Doyle.

I look at the facts surrounding the deaths of Tuttle and Nicholas as akin to the intoxication manslaughter case I tried.  It is heartbreaking.  It is not a case that lends itself to inspiring people to want to look at "both sides of the story."  Something terrible happened -- a terrible injustice -- and the vast majority of those who know about the case will more than likely feel impassioned that accountability should be swift and harsh.  While the intoxication manslaughter case could be the poster child for harsh punishment against drunk driving, the Harding Street case could be the poster child for harsh punishment against police abuses.

The Harris County District Attorney's Office has been on a charging spree for all things Houston Police Department in the wake of the Harding Street Raid.  It goes past the events of that day two years ago.  Deep dives have been made into payroll irregularities and any other misdeeds possibly attributed to HPD Narcotics.  Again, there is nothing wrong with looking into abuses of power, but one has to wonder what the driving factor truly is.  From a legal standpoint, it seems that Ogg's indictments are designed to show that Harding Street was merely an example of a systemic problem that was known about and condoned by the City of Houston Police Department.  That sure could be helpful in a civil suit against the City of Houston as illustrating that the City as a whole should be liable for what happened.  It would serve as strong evidence that Harding Street was the fault of more people than just one rogue cop.

To be clear, my issue here is not that Kim Ogg is aggressively investigating and/or prosecuting the officers involved in the Harding Street raid.  Of course, she should do that and would be grossly remiss if she did not.  I also don't fault Michael Doyle for aggressively pursuing a civil suit against those same officers.  He should absolutely do so on behalf of his clients.  However, the scope, as well as the timing of many of Ogg's charges have given a very strong appearance that they are designed to assist (and work in conjunction with) Doyle's lawsuits.

In my opinion, the civil cases and the State's prosecutions should function as two parallel lines that never cross.  To cross those lines creates an appearance of impropriety that has no reason to exist and it damages the strength of those cases.  It also creates a very slippery slope for the future.

As agents of the State of Texas, prosecutors with a District Attorney's Office have significantly more power than a civil lawyer.  They have access to databases that only law enforcement is entitled to.  They can compel testimony in Grand Juries.  They can expedite personnel records from law enforcement officers, hospitals, and a whole host of other entities with an ease that no civil attorney would experience.  They can subpoena things as part of an investigation prior to a case being filed, even if it is just exploratory.

If Doyle has a direct pipeline of discovery coming from the investigations that Ogg has come up with, he's doing pretty well for himself and his clients.  That's what the attorney on my case wanted from me so many years ago, and that was something that I wasn't going to give.  I could cheer the attorney on and root for a bazillion dollar verdict for the victims, but I could not offer my assistance.  That was a parallel line that I would not and could not cross.

The most powerful tool that a prosecutor has that a civil attorney does not, however, is the ability to charge someone with a crime.  I don't practice civil law so I can't speak to all of the advantages of having someone you are suing charged with a crime, but here are some that seem self-evident.  In addition to all of those discovery tools available mentioned above, a criminal case can often get to trial quite a bit faster than a civil case in most (non-pandemic era) instances.  There can also be Grand Jury testimony, the leverage of incarceration, and just the general stigma of being charged with a crime.  

Last week, several people noted that the statute of limitation to file lawsuits related to the Harding Street raid would run this week.  As a matter of fact, today is the two year anniversary of the shooting.  Some really smart people believed that District Attorney Ogg would fire off another round of indictments just under the wire to help bolster Doyle's lawsuit. (NOTE:  Kim Ogg has tweeted something on January 23rd about holding people accountable for Harding Street.  She apparently deleted it after I responded with this tweet.  I did not realize she had deleted it until I was writing this post.)

Sure enough, Ogg issued a round of new indictments on January 25th and like clockwork, Doyle filed lawsuits -- just under the wire before the statute of limitations ran.  For good measure, Ogg also dissolved her own Major Narcotics Unit within the D.A.'s Office.  What amazing timing!

As I acknowledged above, given the heartbreaking and extreme circumstances of Harding Street, I realize that the general response to the Doyle/Ogg relationship may be an overwhelming "so what?"  The unseemly actions of this particular Civil-Prosecutorial Alliance pale in comparision to the misdeeds of HPD Narcotics.  I can understand that reaction.  I really can.  

But in the instance of the Harding Street Raid, it is all so uneccesary.  The facts of that day are dark, disturbing, and perfectly capable of standing on their own merits in both the civil and criminal arenas.  The parallel lines of those jurisdictions did not need to be crossed.  In creating this alliance, Ogg has opened the door to attacks that many of her prosecutions related to the case are "politically motivated."  I can assure you that is what the defense attorneys for all of the officers involved in these prosecutions are loudly pointing out to the Courts.

And as I mentioned before, it is such a slippery slope to begin down.  

What if the next case isn't as egregious as Harding Street?  What if the District Attorney's Office decides to do a favor for a civil lawyer on a less compelling case?  What if the next case isn't quite so clear cut?  What if it's a neighbor dispute where the right civil attorney has the ear of the elected D.A. and can maybe get some charges filed?  What if it's a fatal traffic accident that would be stronger with some manslaughter charges?  What if you can get theft charges in a civil dispute?

It is a dangerous pathway to follow.