Why the Appearance of Impropriety Matters

Back in 2009, when I was first starting my career as a defense attorney after nine years as a prosecutor, one of the first courts I received an appointment in was the 338th District Court.  At the time the chief prosecutor in the 338th was Craig Still (who now works at the Public Defenders Office).  After I had read over the new case that I had just been appointed on, I went to discuss it with Craig.

When I started to hand him the case for him to review, he stopped me and politely pointed out that he was going to let his Two handle the case and he would not be involved.  He wasn't being rude.
The reason he didn't want to involve himself in any case I was handling was because Craig was (and is) one of my best friends.

Not that Craig would have ever done anything inappropriate regarding a case based on our friendship.  Nobody who knows him or his reputation in the courthouse would have ever accused him of such a thing.  However, Craig was savvy enough to realize that there was no need to create even an appearance of impropriety.

And that was just on a crack pipe case.

I've thought about that moment in the 338th many times over the past few months as I've watched Kim Ogg steadfastly refuse to remove herself and the Harris County District Attorney's Office from the handling of the David Temple Murder case.  Maybe Ogg's motives are pure.  Maybe they aren't.  Whatever her reasoning is, our new District Attorney certainly has not helped herself in avoiding an obvious appearance of impropriety.

The purpose of this particular post isn't to address whether or not David Temple is guilty of murder.  Volumes have been written about the facts of the case itself.  I would suggest reading Kathryn Casey's Shattered if you want to familiarize yourself with the details, or some of Craig Malisow's articles about the case in the Houston Press.  I will freely admit that there are many who are much more knowledgeable about the details of the murder than I am.

Additionally, the purpose of this post isn't to address what Kelly Siegler did or didn't do during the trial that resulted in Temple's murder conviction in 2007.  The Court of Criminal Appeals has ruled that Temple deserved a new trial and no matter what happens from here on out, Kelly Siegler won't have any involvement in the case.  For all intents and purposes, the case is at Square One from a legal standpoint.  Although advocates for David Temple like to drop Kelly's name in hopes of inciting some level of outrage on David's behalf, the reality is that she is no longer relevant to the future of the case.

The ball is completely in Kim Ogg's court.  Unfortunately, she seems to be making every effort to demonstrate that the one person in Harris County who shouldn't be handling the case is Kim Ogg.

As Kim Ogg took office on January 1st, the Temple case was a very hot topic.  The Court of Criminal Appeals had just reversed the case in late November and Ogg had already raised eyebrows with her earlier announcement that Temple Defense Team members, John Denholm and Steve Clappart, would be joining her administration.  That's the two of them here with Casie Gotro and Stan Schneider, receiving an award for their work on Temple's defense team from the Harris County Criminal Lawyer's Association.

On January 1st, Ogg gave her inauguration speech, where she added fuel to the impropriety fire by thanking Temple's trial counsel, Dick DeGuerin, for the influence he had been in her own legal career.  DeGuerin had been calling for Temple's case to be dismissed from the moment he learned it had been reversed.

Ogg was also not done any favors with Temple attorney Stanley Schneider talking to the press and explaining how Ogg would be proceeding with the case.  Schneider expressing how "comfortable" he was with whatever her decision would be sounded as if he already had a strong indication of what that decision would be.

Additionally, Ogg issued an edict about a month ago that the Office would recuse itself from all first degree felony cases previously defended by anyone in her upper echelon (which would presumably include John Denholm).  Oddly, the Temple case was mysteriously left out of that recusal.  Ogg had initially told the Houston Chronicle that she would have a team looking at the case, but later retracted that statement, saying she and only she would review the case.  That's a pretty daunting task considering she would presumably be reading an enormous offense report, a full trial transcript, listen to multiple witness statements, not to mention re-interview those witnesses, read a writ hearing transcript and review all the corresponding documents associated with the case.  And further, it would be expected that she would also talk to the detectives involved in the case and (gasp!) probably even the original prosecutors.

The most blatant appearance of impropriety came last week when it was revealed that DeGuerin was headlining a fundraiser for Ogg on the eve of Temple's next court date -- a date when Ogg was scheduled to announce her decision about retrial.  In addition to DeGuerin, former Temple attorney Paul Looney was also on the host committee.  This was so egregious that even Brian Rogers was forced to write a mildly negative article about Ogg in the Chronicle.  Of course, in typical Brian Rogers style, he buried the mention of the controversial fundraiser somewhere around the tenth paragraph of his article.

The encouraging news in Brian's article was that Ogg was still open to the idea of recusing the Office from the case.  She should.  I've heard from former prosecutors, judges, defense attorneys, and prosecutors and judges in other counties, who are astounded that she hasn't done so.  I've even heard from members of Ogg's own upper Admin who have expressed their belief that the Office should recuse itself.  And by the way, I'm talking about upper Admin that she brought in with her on January 1st.

I'm hopeful that Ogg is finally starting to realize what message she is sending to the public about her definition of Justice:

It is a message that there will be no checks and balances when it comes to what Kim Ogg wants to do with her administration.

It is a message that Kim Ogg has no interest in the advice of the legal community around her.

It is a message that the her concerns for the family members of victims of violent crimes are not very high on her priority list.

It is a message that the wealthy client who can afford a lawyer like Dick DeGuerin can get special treatment.

It is a message that the right connections can make even a murder case go away.

Some defense attorneys are rallying behind the idea of Ogg biting the bullet and just dismissing the case, because, you know, "Kelly Siegler."  Others are pointing out that the Disciplinary Rules which govern attorneys in the State of Texas do not require Ogg to recuse herself.  Many have correctly pointed out that donations from criminal defense attorneys are commonplace for judges and elected District Attorneys.

But the David Temple Murder case isn't just any case.  And Dick DeGuerin isn't just any defense attorney.

I started this blog post a couple of days ago, but I didn't have time to sit down and finish it until tonight, 6:45 p.m. on Thursday, March 2, 2017.  As I wrap up this post, the family of Belinda and Erin Temple sit at home, wondering whether or not the man who was once convicted of murdering their loved one will even face trial again.

And the District Attorney who will make that decision is at a party in her honor, hosted by that same man's defense attorney.

Is there really any question as to what kind of message that sends?

Clappart's Warrant: Judge for Yourself

While much has been said, about Steve Clappart's warrant for the arrest of Cody Ray Ellis as an alternate suspect in the murder of Belinda Temple, it appears that David Temple's defense team has been reluctant to publish the warrant itself.  Additionally, many of the local media outlets, specifically the Houston Chronicle have decided not to delve into the details of it.

Let's take it page by page --

So, to be clear, in this document, Steve Clappart is attempting to have Capital Murder charges filed against Cody Ray Ellis.  For those of you outside of the legal field, Capital Murder can be punished only by Life in Prison or the Death Penalty.  By signing off on this warrant, Clappart is verifying that he is completely comfortable with this.

Clappart then goes on to explain how experienced he is as a police officer.  He also goes on and on about how experienced John Denholm was as a police officer.  This isn't necessarily abnormal, but it is pretty excessive for a standard warrant.  Clappart is basically just illustrating that he is writing the warrant at Denholm's behest, but it should make no difference, because they are both just amazingly experienced.

Clappart then goes on to state that Denholm got all of his information after being contacted by David Temple's lawyer, Dick DeGuerin.  This was what I criticized Lisa Falkenberg for being so ambiguous about in her article praising Clappart and Denholm.

On to Page Two . . .

Okay, so let's start with the fact that when John Denholm brings this case to Steve Clappart, all the research that he has done into this new "star witness" Daniel Glasscock is watch a video deposition of Glasscock that is conducted by David Temple's attorney, Dick DeGuerin.  As noted, based on solely having watched the video where Glasscock is questioned by a defense attorney, John Denholm has decided that the testimony is credible and David Temple is wrongfully convicted.

Um, okay.  

So, Clappart decided to watch the video deposition, too.  He also decides it is credible, and puts the details into the Probable Cause statement.

Let's breakdown what comes out of that deposition, shall we?  Basically, Glasscock is saying that he went over to Riley Joe Sanders house with a guy named Carlos Corro.  Corro tells them "things were fucked up in a robbery."  While at Sanders house, Glasscock joins a conversation between Corro, Sanders and Cody Ray Ellis, where he hears Sanders tell Corro "that the dog attacked him when he went up the stairs, he shot the dog, heard Belinda [Temple], put the dog in the closet and they panicked and ran."

Let's assume that Glasscock was telling the truth (which is a big assumption to make) and that he actually heard these words uttered by Sanders.  These words are still a far cry away from being a confession to Capital Murder.  This is an admission to shooting a dog, and then fleeing when they hear a person [alleged to have been Belinda Temple].  

Let's also look at the plausibility of this conversation taking place.  Glasscock states that he just wandered out of the bathroom as the three boys were standing around talking about committing a home burglary/animal abuse/capital murder.  Rather than stop the conversation, they keep on talking about it as if they were talking about an Astros game?  At some point, they throw in the name of Belinda Temple, presumably so Glasscock won't feel left out of the conversation?

Clappart notes that Belinda Temple's dog was not in her house at the time of her murder, rather it was closed in the garage.  Many investigators would have found this fact as evidence that Glasscock was not a reliable witness.  Inexplicably, the dynamic duo of Clappart and Denholm find that it somehow strengthens his credibility.

Page Three . . .

Although it isn't clear whether or not law enforcement or Dick DeGuerin had Daniel Glasscock polygraph tested, Clappart notes that Glasscock has shown No Deception to "all pertinent questions asked."  He doesn't list what those "pertinent" questions were, but okay.  He is clearly doing everything he can to portray how amazingly credible Glasscock is.

At this point, Clappart starts looking into the background of Corro, Ellis and Sanders and notes that Corro and Ellis (along with a third party) had been arrested two months after Belinda Temple's murder for criminal mischief.  He notes that Corro had been driving a white car during the criminal mischief and then points out that a witness had seen two white males "in an off-white or creme or light beige colored vehicle speed away from the area of the murder around 4:30 p.m. on the date of the murder."

So, I guess there are so few white cars in the world that this is somehow incriminating?  Not to mention, the witness seems clear that it wasn't a white car, but an "off-white or creme or light beige" vehicle.  To Clappart, this appears to be immensely damning.

Clappart also notes that Corro and Ellis had committed a burglary along with Casey Goosby, eight days before the murder.  He notes that the target of this burglary was Goosby's mother's boyfriend and was done in retaliation for him cheating on her.  He also notes that shotguns and jewelry had been taken in the burglary.  

I can actually see where Clappart could find this significant.  Burglaries in the area are certainly relevant.  Burglaries are also frequent, and the typical things taken in burglaries are guns, jewelry, electronics and cash.  Clappart then points out that Sanders (who was NOT part of the Goosby burglary) had a grudge against Belinda Temple.  

This seems to be a case of two plus two equalling five, in my opinion.  So, one of the Clappart/ Denholm suspects committed a burglary shortly before the Temple murder and a different one of them had a grudge against Belinda Temple.  If we combine the two, does that point to Capital Murder?

On to Page Four . . .

 Clappart then moves in a strange direction with the warrant, by interviewing Riley Joe Sanders' ex-girlfriend, Niki Biondi Lundes.  Clappart finds some level of significance in the fact that in 1999, Lundes was reluctant to admit that Sanders was her boyfriend.  I'm not sure what that has to do with anything.  Lundes tells him that Ellis, Corro, and Sanders were associates and that they had committed crimes together before.  I don't know that this was really in question.  More significantly, Lundes tells Clappart that Belinda Temple had been a tutor to Sanders on difficult subjects, and that Sanders called her the night of the murder, crying because he had heard Belinda Temple was dead.

Clappart then returns to shoring up his "star witness", Daniel Glasscock.  He interviews Glasscock's father, who states that Daniel had told him about the information he had overheard Corro, Ellis and Sanders talking about.  Mr. Glasscock said that his son had been threatened about not talking, but he encouraged his son to talk to the police, anyway.  Mr. Glasscock said that Daniel ultimately talked to his minister, Jeff Adams, who had also told Daniel to tell the police.

I'm not really sure of the significance of this either?  So, Mr. Glasscock can offer some hearsay evidence about something his son told him he heard?  Maybe Clappart is going for some bolstering here, but I don't understand why it is in the warrant. 

Page 5 (we're almost done here) . . .

Clappart states that he personally interviewed Glasscock on July 16, 2012, and points out that (just in case anyone forgot), he, Clappart has been a police investigator for 44 years.  He points out his experience before deeming Glasscock to be "very credible."   I've read hundred of warrants in my career, but I've never seen this level of Credibility Gymnastics ever put into a warrant.  The reason Clappart is working so hard to make Glasscock seem credible is pretty apparent once Glasscock starts talking.

Glasscock tells Clappart of his own life of crime, but how now he is reformed and teaches gymnastics for children.  He confirms the information from the deposition he gave to Dick DeGuerin.  He recalls coming out of the bathroom at Sanders' house and finding Corro, Sanders and Ellis smoking on the back patio, talking about "shit was fucked up."  Glasscock tells Clappart "'they had broke in the next door neighbor's house' and later in the interview said that Sanders was very panicky and told Corro that they had shot the dog and put it in the closet."

Here's where things get even more ridiculous.

"Your affiant said that Daniel Glasscock then told your affiant that 5 or 6 months ago, Glasscock had learned that the dog had not died and that it was Belinda Temple's body that was found in the closet . . ."

Wait, what?

Clappart is interviewing Glasscock in July of 2012.  The murder happened in 1999.  Glasscock stated that he just learned of the murder in January of 2012?

Hang on, Glasscock has an explanation:

"Glasscock told your affiant that one night in May 2012 he could not sleep and woke up and turned on the television and was flipping through the channels when he saw a television program on the Temple murder and then recalled what he knew and what he had heard and began to think about what it would be like if Glasscock's father was in prison for a crime that he did not commit."

Well, I guess if you put it that way, it makes perfect sense, right?

Finally, Page 6 . . .

So, to summarize, Glasscock, an ex-criminal (per the warrant) didn't know about the murder for twelve years, sees a TV show, remembers an obscure conversation from twelve years earlier, and contacts a convicted murderer's lawyer with some new information about shooting a dog.

Yep, that's what Capital Murder warrants are made of, according to John Denholm and Steve Clappart.

Upon reading the entirety of the warrant, it should become obvious why Temple's team didn't want it published.  It should also become obvious why no judge in the courthouse would sign it.  

It should also be noted that no prosecutor in the District Attorney's Office, other than Jim Leitner thought it was should be signed.

But, then again, Leitner was having the Office recuse itself in favor of Brad Beers -- who had been Steve Clappart's attorney.  That makes it more fair, right?

If you're a prosecutor reading this, would you have taken Capital Murder charges based on that information?

If you're a judge, would you have signed the warrant?

And if you're a defense attorney, what would your reaction be if your client got arrested on a warrant like that?

The Flip Side of the David Temple Findings

While much has been said about the findings of fact in the David Temple hearing, there seems to be a couple of items that haven't been fully explained by mainstream media.  Contrary to some of the early headlines by the Houston Chronicle, the findings by Judge Gist don't automatically mean that David Temple is getting a new trial.  What Gist has basically written is his evaluation of the hearing and the earlier trial as a summary to the Court of Criminal Appeals.  The Court of Criminal Appeals does have the power to overturn the case, but they also have the power to disagree with Judge Gist's findings.

It could be several months before the Court of Criminal Appeals reaches that decision.

In the meantime, Temple's attorneys, Casie Gotro and Stanley Schneider, have approached District Attorney Devon Anderson and requested that she agree that Temple should be granted bond while awaiting the Court of Criminal Appeals' decision.  Although the law does provide that the D.A.'s Office could agree to a bond during this waiting period, there is nothing that demands they do so.   Anderson declined to agree to a bond, which sent Ms. Gotro and Mr. Schneider into a screaming tizzy.  They held a press conference at Stanley's office, demanding that the District Attorney's Office recuse itself from the Temple case.

Now, I'm a little bit curious.  Did they want the D.A.'s Office to recuse itself before or only after Anderson refused to agree to a bond on Temple?  I mean, if they thought Anderson was cool enough to approach about a bond, did they only change their opinion when they didn't get their way?

And who exactly do they think would be an acceptable Special Prosecutor if they don't want Harris County?  I'm just going to go out on a limb here and guess that Gotro and Schneider want it to be a defense attorney running that prosecution.  They objected to the first couple of judges to try their hearing, so it would probably be expected that they would be pretty choosy about who they got for a prosecutor.  I would imagine that if Anderson did decide to pass the case off to, say, the Montgomery County District Attorney's Office, that Gotro and Company would pitch a fit.

But, see, here's the deal -- Defense Attorneys don't get to pick and choose who prosecutes their cases.  Trust me, if they did, there would be many prosecutors dying of loneliness because nobody wanted them on their case.  As Gotro and Schneider have now taken their case to the media via press conferences and Gotro's highly bombastic Twitter account, I still haven't seen any compelling reason why the Harris County District Attorney's Office should just hand the keys to the courthouse over to the Temple defense team.

While everyone has focused on Gist's findings as they relate to Kelly Siegler, most have failed to notice a couple of other points from the findings.  Specifically, the fact that Gist found that Temple's "newly found" star witness, Daniel Glasscock, wasn't credible.

You remember Mr. Glasscock, don't you?  I wrote about him back in 2012 in a blog post entitled "David Temple and the Dereliction of Duty."  Now, the fact that I wrote that blog post along with this one and this one earned me a little time on the stand in the Temple hearing, too.  I testified for several hours about the blog posts, my education, my marriages, and my salary for working on Cold Justice.  In that blog post, I basically accused Jim Leitner of doing whatever he could to help Dick DeGuerin get the Temple verdict overturned.

I specifically accused him of allowing then-District Attorney Investigator Steve Clappart to run a covert investigation on some "exculpatory evidence" that Clappart's friend (former Harris County Sheriff's Office Homicide Lieutenant and current Defense Attorney) John Denholm had discovered.  That newly discovered evidence came from Daniel Glasscock.  This is what I wrote in 2012:

Clappart has been shopping around a warrant for the arrest of the (then) teen for the Capital Murder of Belinda Temple.  He cites the testimony of a new witness [Glasscock] who, per the warrant, had only learned of Belinda Temple's death (which happened in 1999) only "5 or 6 months ago."  Furthermore, that "Smoking Gun" evidence that this new witness has involves him overhearing one of the three (then) teens admitting to shooting a dog during a burglary and throwing it in the closet.

Yep, you read that right.

There isn't some new confession to the murder of Belinda Temple.  There's the confession of shooting a dog that Clappart and Denholm would like to extrapolate into a Capital Murder warrant.  There are no fingerprints.  No DNA.  No confession.  Yet a licensed peace office and a former licensed peace officer would like a judge to arrest someone for Capital Murder because he stated that he once shot a dog.

Now, apparently the fact that I wrote that blog post back in 2012 really offended Ms. Gotro.  She took to the Twitter airwaves with this:

The only problem with that was that what I wrote wasn't a lie.  How do we know that?  Well, ironically, we know that thanks to everybody's favorite lovable lunatic, Don Hooper.  Don decided it would really put me in my place if he ran a transcript of my testimony, as well as the testimony of Jim Leitner's during the hearing.  I'm actually thankful to him for doing so.  If you want to read them, here they are.  Mine is pretty much just me pontificating on why I thought the way Leitner was handling the investigation was wrong.

However, Leitner confirms pretty much everything I accused him of:

•     On pages 11 & 12, he confirms that early on in the Lykos Administration, he was approached by DeGuerin and Schneider about reviewing the Temple case.  He confirms that he had the Temple files brought to his office.

•    On page 15, he acknowledges that he didn't want Roe Wilson, the head of the Writs Division, to supervise the Temple investigation.

•    On page 16 & 17, he begins talking about how Steve Clappart came to him with the "newly discovered evidence" on the Temple case.  Here's where it gets kind of funny.  Leitner then says:

"So I didn't know if somebody set me up to put something in Murray's blog or something else again, so I said "Wait a minute, Steve," and I believe it was right then and there when he in the office, I called -- I believe I called DeGuerin or I called DeGuerin's office and said, "I have just been told that there's evidence that has to be Brady evidence that exists in the Temple case.  I want you and whomever you want to be with you to come to the DA's office so we can sit down and as they line it out to me, they're lining it out to you at the same time, so nobody can ever say that I've kept anything from you that's Brady."

Um, okay.  So apparently, my blogging skills back in the day were so powerful that whenever someone spoke to Jim Leitner, he assumed it was some kind of trick that I had initiated.  Setting aside how hysterical that is, am I the only person here who finds it a little unusual that the second Clappart says a word to Leitner about a case (that Leitner just so happens to coincidentally have in his office), that the 1st Assistant of the Harris County District Attorney's Office stops EVERYTHING to call Dick DeGuerin?

•    On page 18, he acknowledges that he wanted Clappart's investigation kept quiet, so he intentionally kept it away from the Conviction Integrity Unity, who should have had jurisdiction.

•    On page 105, Leitner begins talking about how Steve Clappart had written an affidavit for an arrest warrant for an individual named Cody Ray Ellis. [NOTE:  This is where the information from Glasscock comes in.  Glasscock said he remembered a conversation from 12 years earlier where Ellis and some others had talked about breaking into a house and shooting and killing a dog."  Not a woman.  Not Belinda Temple.  A freaking dog.]

Leitner's response to Clappart's ridiculous warrant is frightening:

"I have read it and you asked me to look at that, and in my own honest opinion, if I had been a judge, I would have probably signed the warrant."[p 110 & 111]

Just so we are clear here, Leitner has just now admitted that if Clappart had brought him a warrant saying that he heard from a dude who heard it from another dude that a dude shot a dog, he would sign a warrant for CAPITAL MURDER, despite the fact that somebody else was already sitting in prison for that very same murder.

Are you freaking kidding me?  Mental note:  don't vote for Leitner for judge!

I know the Defense Bar is celebrating Gist's Findings of Facts and his recommendation for a new trial right now, but is the Defense Bar really thinking that is sufficient for a Probable Cause for a Capital Murder warrant?  I mean, seriously.  Throwing out some good old fashioned reasonable doubt on a case is one thing, but Clappart and Denholm wanted to go arrest somebody for Capital Murder!

As noted above, Gist found that Glasscock was not credible and noted, "Glasscock substantially varied the facts originally given to Trial Counsel.  In substance, Glasscock repudiated the most important details to the extent that his future credibility as a witness is significantly impaired."

I guess it's a good thing Clappart couldn't find a judge who would sign an arrest warrant on Cody Ellis, isn't it?  Turns out their star witness in that super secret investigation was full of crap.

None of that slowed Clappart and Denholm down from showing up at Gotro and Schneider's press conference though.

So, despite the press conference and Ms. Gotro's warpath on Twitter, it shouldn't really be surprising that Devon Anderson won't agree to a bond on David Temple.  From the prosecutorial perspective, they don't believe that they have the wrong guy in prison. 

At the end of the day, they believe that the person who cornered a pregnant Belinda Temple in her own closet and shot her in the head with a shotgun was her husband, David Temple.  

As much as Ms. Gotro and Mr. Schneider would like for you to believe that David Temple is the next Anthony Graves or Michael Morton, the Harris County District Attorney's Office does not agree -- nor do they have to.

As I said before, whether or not David Temple gets a new trial remains to be seen.  The Court of Criminal Appeals does not have to accept Judge Gist's findings.  If they review the record and concur with Judge Gist's findings, then he most likely will receive a new trial.

If he does get a new trial, a prosecutor with the Harris County District Attorney's Office will most likely be trying it.  Although I'm sure Ms. Gotro and Mr. Schneider would like designate their own prosecutor, they know better than to think that would ever happen.  

That's just not how the System works.

The Inheritance - UPDATED

UPDATE:  Since the writing of this post, I have been informed that the District Attorney's Office has recused themselves from the Chiofalo cases.

Grits for Breakfast recently reported that when newly-elected Williamson County District Attorney Jana Duty took over her new position from outgoing D.A. John Bradley, she found a welcoming gift in her desk drawer of a headless corral snake.  This idea of a joke was clearly unprofessional, juvenile and mean-spirited; however, when considering the welcoming gifts provided during the Harris County District Attorney transition, it may pale in comparison.

When Mike Anderson took over for Pat Lykos on January 1st, he knew that he had a long road ahead of him.  The prosecutors' morale was down after four years of working under Lykos, Jim Leitner and Roger Bridgwater.  The Office's relationship with county-wide law enforcement agencies was strained.  The budget and the Office's Asset Forfeiture fund had been radically depleted.

All of this were things that Anderson knew he would be inheriting when he took the helm.  What he had not anticipated, however, were some of the scandals that had occurred under Lykos' Administration that suddenly were revealed under his tenure.

None of these scandals are more prominent than the FBI's arrest of former-Harris County D.A. Investigator Lonnie Blevins and the investigation into Blevins' partner, Dustin Deutsch for allegations of stealing high dollar evidence in a pending criminal case.

For those of you have somehow missed the story, Blevins and Deutsch are former partners with Harris County Fire Marshal's Office, who were hired to be D.A. investigators by Lykos at the beginning of 2012.  Prior to being hired by the D.A.'s Office, they had served in a liason-type capacity with the Office.  Both men were assigned to the Special Crimes Division, where they worked in Major Fraud.

In the vast majority of the investigator assignments with the D.A.'s Office, an investigator is very much a utility player in the course of day-to-day operations.  They hunt down witnesses on upcoming cases for trials.  They pick up evidence.  They accompany prosecutors any time the prosecutor has to go out in the field.

Being an investigator in Major Fraud, however, is a much more pro-active assignment.  Investigators like Deutsch and Blevins are routinely the police officers in charge of actually investigating allegations of criminal wrong-doing.  They draft search warrants.  They interview all the involved witnesses.  They collect the evidence.

Most importantly, they are the Affiants when charges are filed.

The D.A. Investigators for the Major Fraud division of Special Crimes file the vast majority of the cases that Division will handle, which makes the recent investigation into Blevins and Deutsch crippling.

Blevins was arrested for stealing (and subsequently selling) a large amount of valuable collectible comic books.  The problem was that these comic books were also evidence in the high-profile case against Anthony Chiofalo and his wife, Susan.  The bigger problem was that the investigating police officer who actually filed the charges against the Chiofalos was Blevins' partner, Dustin Deutsch.

Oops.

Let's just take a moment and see how this case plays out in trial.

A prosecutor has to put on Deutsch as a witness to testify about the wrong-doings of the Chiofalos.  Deutsch testifies passionately about how those terrible people stole all of that money.  The prosecutor then passes the witness to the defense attorney who asks Deutsch about how much money and collectibles he and Blevins stole as well.

See the problem here?

The fact that Deutsch and Blevins are under investigation isn't just relevant to the Chiofalo cases.  Theft is a crime of moral turpitude and it calls into question every case they ever touched.  There is a big difference from being a D.A. investigator who served a subpoena on a case, and being the one who actually filed the case, itself.  Their level of involvement in all of those Major Fraud cases calls every last one of the cases into jeopardy.

Additionally, as a friend of mine pointed out, think about all of the cases that Deutsch and Blevins handled as Arson investigators with the Fire Marshal's Office.  How easy would it be to walk through a burned up house and see an expensive watch, or even cash, laying around and steal it -- only to put in your report that all valuables had burned up in the fire?

The damage from the Blevins and Deutsch incident will affect not just pending cases, but potentially every one that they ever handled.

The District Attorney's Office did the right thing a few weeks ago when they said they were "freezing" 125 active cases handled by the Blevins and Deutsch.

But that's not enough.

Anthony Chiofalo's attorney, Paul Doyle, has called upon the Office to recuse itself from his client's prosecution, and he is absolutely right to ask for that.  There is too much involvement from Office personnel that jeopardizes the integrity of the case.  It is also worth noting that while the D.A.'s Office has "frozen" these cases, many of the defendants are still sitting in jail waiting for their cases to be "unfrozen" -- including Anthony Chiofalo.

Recently, the District Attorney's Office recused itself from handling the cases of any officers charged in the Chad Holley beating.  The reason given for that recusal was that Devon Anderson, the wife of District Attorney Mike Anderson, had represented an officer involved (but not charged) with the beating.

I agree that the Office's self-recusal was appropriate in the Holley case.  However, if it was appropriate in that case, then it is absolutely appropriate in the Chiofalo cases.  Quite frankly, at this point, the District Attorney's Office probably needs to recuse itself from any case handled by Blevins and Deutsch.  It just looks bad, otherwise.

NOTE:  As an interesting side note, Lonnie Blevins has hired Dick DeGuerin to represent him on his Federal case.  Dick is a great (and expensive) defense attorney.  Mr. Blevins dealt with Dick before on the highly publicized arson case of then-Texas Supreme Court Justice David Medina.

The bad acts allegedly committed by Deutsch and Blevins did not occur during the Anderson Administration and they don't reflect on it, either.  That being said, how this Administration handles the fallout from this scandal absolutely reflects on them.

They inherited this problem, but they can very easily bypass their inheritance by simply recusing themselves from further involvement.

I don't understand why they wouldn't want to.

A Soft Landing for Leitner?

For several months now, those of us who participate in this blog have been speculating about the future of Harris County District Attorney's Office 1st Assistant Jim Leitner.  Every few weeks, there have been (what appeared to be) credible reports that he was turning in his two weeks notice.  The rumors started before the election in May, and have continued fairly regularly since then.  I hear new reports every week or so that he is finally leaving the Office.  I don't even bother to report them anymore.

The situation is interesting, however.

Since taking over the 1st Assistant position on January 1, 2009 in an unholy alliance with Pat Lykos, Jim has seemed to relish in the role of chief "bridge burner."  He started in 2008 by vowing to his friends in the D.A.'s Office that he would never support Pat Lykos if he failed to make the runoff and then contradicting himself the moment he lost.  His endorsement of Lykos coupled by his later appointment to 1st Assistant smacked of an illegal back room deal that didn't do his reputation any favors.

His blind bullying on behalf of Lykos has alienated the prosecutors that he has been supervising for the past three and a half years.  During his tenure he hasn't exactly earned too many new friends in the Judiciary or the Defense Bar, either.

Whether Leitner leaves on December 31st at 11:59 p.m. or tomorrow, the only certainty is that he will definitely not be the 1st Assistant come January 1st, 2013.  (NOTE:  Unless Lloyd Oliver wins, in which case, all bets are off.)  The big question now is, "What becomes of Jim Leitner once he no longer has that shiny badge that he likes to wear on his belt?"

The answer to that question may be in the works as we speak.

First, let's jump back in time to November 2007.

Kelly Siegler and her career arch-nemesis, Dick DeGuerin, have been embroiled in the hotly contested murder trial of David Temple.  The case is a whodunnit murder that dealt with a prominent Katy football coach charged in the murder of his 8-months-pregnant wife.  Much of the case is based largely on circumstantial evidence, with no confession from the defendant nor any forensic evidence that can definitively link him to the crime.

Unfortunately for David Temple and Mr. DeGuerin, circumstantial evidence is still evidence.  A jury convicted Temple of the murder of his wife and sentenced him to Life in prison.

DeGuerin complained loudly -- both publicly and privately -- that an innocent man had been convicted.  The appellate courts have disagreed and David Temple continues to serve his Life sentence as of this writing.

On January 1st, 2009, the Lykos Crew came to town.  According to reliable sources, soon after Lykos was elected, DeGuerin lobbied the Lykos Administration, specifically 1st Assistant Jim Leitner, to review the Temple case and agree to a reversal of the case.  My reports indicate that Kelly Siegler's trial file on David Temple has been sitting in Leitner's office since very early in 2009.  Why the First Assistant would take such an interest in a case is a mystery to me.  Perhaps it is because Mr. DeGuerin is such a high profile defense attorney.  Maybe Leitner was still angry after the bitter campaign between Kelly Siegler and Pat Lykos?

Whatever the motive was in 2009, nothing really became of the Temple case under the Lykos Administration -- at least nothing helpful to Mr. Temple or Mr. DeGuerin.

But in May of this year, Jim Leitner learned that his boss, Pat Lykos, was going to be out of a job at the end of the year.  He was savvy enough to know that when Lykos' job ended with the D.A.'s Office, his job would end as well.  Leitner knew that on January 1, 2013 he was going to be a defense attorney again, and the folks he would be dealing with would be a group of prosecutors that he had proudly treated like crap for the preceding four years.

Oops.

Where is that Temple file? Mr. Leitner must have wondered to himself.  Because if there was anything that might give him a little bit of goodwill in his job search beginning January 1st, surely the gratitude of Dick DeGuerin would count for something, right?

So, according to multiple credible sources, 1st Assistant Jim Leitner has picked up the David Temple file again.  DeGuerin is still claiming that his client is innocent.  DeGuerin has even hired former Harris County Sheriff's Office Lieutenant (and current defense attorney) John Denholm to work on the Temple case for him.  That's interesting, since Denholm was the Lieutenant in HCSO Homicide when the Temple murder occurred.

Leitner has the District Attorney's Office doing all they can to help DeGuerin, Denholm and David Temple, too.  He has an investigator assigned to do all he can to help them in their investigation.  That particular investigator has been given permission to log as many hours of overtime as he could possibly need with no questions asked -- all at taxpayer expense.

Leitner (who was rumored to have been leaving last Wednesday) has told others that he is staying on at the District Attorney's Office a little bit longer to take care of some projects.  It would appear that one of those "projects" is getting the murder conviction of David Temple overturned.  Although some of the details are not confirmed, apparently a jailhouse snitch heard somebody other than David Temple confess to the murder.  Supposedly the "confessor" is now in Mexico.  That would make this a third-hand confession that Leitner is desperately trying to prove to be true.

If Leitner finds the information he is so desperately seeking, a District Judge would have the power to let David Temple walk out the front door of TDCJ.

Mr. DeGuerin and Mr. Temple would doubtlessly be grateful.

And if Mr. Temple walks out the front door of TDCJ, we should all keep a careful eye on what door Mr. Leitner walks in through.

Having powerful friends can often soften the landing for you when you lose your job.

Dick versus Kelly -- again

It wouldn't shock me entirely to see Dick DeGuerin contributing a large amount of money to the Kelly Siegler campaign. Why do I say something so patently ridiculous? Because he's running out of time to win "the big one" against her, if she doesn't win the D.A.'s office (and presumably leaves the office after that).

I keep having this vision of Apollo Creed trying to talk Rocky Balboa out of retirement for a rematch.

Dick's latest attempt to defeat his diminutive arch-nemesis met with failure yet again today in the Motion for New Trial for David Temple. Dick really seemed to think he had Kelly this time, when he called her to the stand in a feeble attempt to get her to confess to some sort of prosecutorial misconduct. In his opening arguments, Dick argued that Kelly had the audacity to insinuate facts while asking questions that were inadmissible. And I mean, come on here, we know Dick would never try to do something like that on his own. However, watching Dick act indignant on television was pretty damn funny.

Chron.com is finally giving Kelly some good press, which just goes to show you that when you let the woman get down to the business of doing her job, she's pretty freaking good at it.

For the record, this makes the score: Dick -- Zero. Kelly -- oh, hell, I lost count.