Kim Ogg's Ever-Shifting Standards for Recusal

The Houston Chronicle had a "breaking story" today that the Harris County District Attorney's Office under Kim Ogg was recusing itself from the ultra-high publicity capital murder trial of Shannon Miles for the murder of Harris County Sheriff's Deputy Darren Goforth.  Although the story may have been "breaking" news to the intrepid reporters of the Chronicle, the recusal was old news around the CJC and had been mentioned a couple of times here on the blog (in the comments).

The reason for the recusal was because Chief of Staff, Vivian King, had previously represented one or more witnesses involved in the case, including Miles' mother.

That's a relatively removed relationship to the case for Ogg to pull the plug, especially in comparison to her steadfast refusal to recuse the Office from the David Temple case.  The logic to recuse the Office from a case because a staff member represented a potential witness on the case versus not recusing the Office when a staff member represented the actual freaking defendant defies logic.

However, Kim Ogg's ever-shifting standards do make sense, I suppose, if you look at them from her political based motivations.  She took half a million dollars from liberal financier George Soros, and he's not a fan of the death penalty.  However, Shannon Miles is accused of executing a uniformed Harris County Deputy at point blank range.  In any other jurisdiction, the elected D.A. would be chomping at the bit to announce "The State is ready." in front of a jury.  The public would and should expect that, and I guarantee you that the police expect it, as well.

From a political standpoint, Ogg finds herself between a rock and a hard place.

Therefore, it is small wonder that she played the legal equivalent of Six-Degrees-of-Kevin-Bacon while trying to find a way to weasel out of the case.  

The decision to recuse the Office from Goforth/Miles case probably is the right decision in the big scheme of things.  However, as I've noted before the appearance of impropriety in all criminal cases . . .

. . . Not just the ones that Kim Ogg finds are too politically hot to touch.

The Lawyer and the Legislator

Few cases in recent memory have taken as many bizarre twists as the case of Shannon Miles, who stands accused of the murder of Harris County Sheriff’s Deputy Darren Goforth on August 28, 2015.  Deputy Goforth was shot fifteen times as he was walking to his patrol car at a gas station, and there was no apparent motive for it. 

Detectives with the Sheriff’s Office made a swift arrest within twenty four hours, and Sheriff Ron Hickman and District Attorney Devon Anderson gave press conferences about Police Lives Matter.  A huge funeral for Deputy Goforth was televised across Houston, and Governor Greg Abbott was in attendance.  Although D.A. Anderson did not declare it officially, seeking the death penalty on Miles seemed like an inevitable conclusion.

The first twist came within a month, as Miles’ defense attorney, Anthony Osso, told announced to the media that the evidence indicated that Goforth may not have exactly been “on duty” at the time of his death.  There was information that perhaps Goforth was there to meet a female, other than his wife, for personal reasons.  Osso wasn’t muckraking; for a murder to qualify as a Capital offense in Texas, the officer must have died in the line of duty. 

The next twist would occur in October, when it was revealed that one of the Sheriff’s Office Investigators, Sgt. Craig Clopton, had begun a sexual relationship with a witness involved with the case.  That witness?  The above mentioned female who Deputy Goforth had been meeting at the gas station.  As if this stunning piece of information wasn’t bad enough, earlier this year, two additional Harris County Sheriff’s Deputies lost their jobs for inappropriate contact with that same exact witness.

As the Sexual Sideshow of the State’s Star Witness continued to play out in the media, Osso challenged his client’s mental competency to stand trial.  Miles had a history of mental illness and his competency had been challenged in some of his earlier arrests.  On February 9^th, Miles was found mentally incompetent to stand trial.  As per the standard procedure, Miles was ordered to Vernon State Mental Hospital for a 120 day evaluation to see if his mental competency could be “restored.”  Due to the size of Harris County and the limited availability of beds, Miles found himself behind about sixty other inmates waiting to be sent to Vernon from the Harris County Jail.

On February 10^th, the case of Shannon Miles took yet another bizarre twist when Texas State Senator John Whitmire inserted himself into the case.  By his own admission, Whitmire contacted the staff at Vernon State Hospital to expedite Miles’ transfer there from Harris County.  Avoiding the potential ninety wait that Miles was expected to be facing, Vernon agreed to take the accused cop killer within a week.

“He’s a sick person, and where do you place sick people?  In a hospital, not a jail,” Whitmire said.

Senator Whitmire, who serves as the Chair of the Senate Criminal Justice Committee, has long been active in shaping the policies surrounding Texas Criminal Justice.  Historically, his actions in the Senate have been regarded as being dedicated to helping ensure the rights of the accused and he frequently finds himself clashing with prosecutors.  This time around, however, Whitmire finds himself in conflict with Miles’ defense attorney, who had no desire to see his client’s move to Vernon expedited.

On February 12^th, Osso filed a Motion to Halt the Expedited Transfer of Defendant From the Harris County Jail to the State Mental Health Hospital.  Taking issue with Whitmire’s involvement in the case, as well as Whitmire’s claim that he contacted Vernon State Hospital for Miles’ safety in the Harris County Jail, the Motion stated:

. . . Mr. Miles has been incarcerated in the Harris County Jail since the time of his arrest in August 2015.  For the past 5 ½ months the senator has shown no concern for the safety of Mr. Miles, nor has he secured an alternative location for the inmate in the event his competency is restored and he is subsequently released by the state hospital back to the Harris County Jail.

One would think that at this point, Senator Whitmire would realize that his assistance in the Miles matter was no longer desired.  It does not appear that anyone in particular had requested his intervention in the first place, and now counsel for the accused has specifically trying to stop his attempt to expedite the transfer.  Surely, the senator could take a hint and bow out, right?

Apparently not.  In a February 25^th article in the Houston Chronicle, Whitmire responded to Osso’s protests.

“I do this every day,” the Houston Democrat [Whitmire] said of the most recent case in which he has injected himself.  “I’ve heard that the lawyer is going to try to block my involvement.  Good luck on that.  He’s not even going to slow it down.”

Holy Arrogance, Batman, it appears that Senator Whitmire has been watching a little too much Donald Trump.  Osse responded to Whitmire’s refusal to back down by filing a Motion to Preclude Senator John Whitmire from Interfering in the Prosecution of Shannon Miles.  Lest one think that the conflict had degenerated entirely into a Texas-sized pissing contest, Osso actually raised very valid points to keep Whitmire out of Miles’ business.

Senator Whitmire’s interference in the process of competency restoration raises serious questions about whether doctors can evaluate Mr. Miles fairly and independently, free from outside influence.  In securing a bed for Mr. Miles, he has indicated that he wants to see Mr. Miles brought trial quickly, at whatever cost.  He has sent a strong message that competency must be restored, and quickly.  As a powerful political figure, doctors will surely take note and potentially err on the side of finding competency restored.

He also noted:

As part of the Texas legislature, Senator Whitmire holds the purse strings to the funding of state-sponsored mental health facilities.  As a result, he has considerable influence over the staff at these facilities – one disagreeable move by the staff, and a department could lose funding.  His interference in this prosecution therefore places a thumb on the scale of finding competency restoration.  Particularly if the case is a close one, doctors may feel pressured to conclude that Mr. Miles can assist his legal team when he cannot.  This Court should therefore order Mr. Whitmire to refrain from interfering in this prosecution.

Osso also cited the separation of powers principles and noted that Whitmire was acting “well beyond the scope of his authority.”  He’s absolutely correct about that.

A hearing in front of Judge Susan Brown is scheduled for Wednesday, March 2^nd.

Senator Whitmire has a long-standing history of trying to improve the Criminal Justice System and he’s never been afraid of backing down in the face of opposition.  Based on his track record in Congress, one could easily give him the benefit of the doubt in assuming that his uninvited involvement in the Miles case was inspired by good intentions.  However, once Miles’ attorney has asked him to back off, it is incumbent upon the Senator to do so.  His refusal to back away from the case is befuddling.

Anthony Osso is a good lawyer who also has a reputation of not backing down in the face of opposition and he has certainly has no reason to back down from defending Shannon Miles.  In almost any other situation, Osso and Whitmire would most likely find their interests being aligned, but  for some inexplicable reason, that is not the case here.  Osso’s rationale for his opposition to Whitmire is well articulated and understandable. 

Whitmire’s involvement, at this point, is unjustifiable.