Progressive Prosecutors Need Help Too

Harris County District Attorney Kim Ogg found herself in an unusual position last week when her request for funding 100 new prosecutors was met with harsh criticism from the Texas Criminal Justice Coalition, a progressive group that normally is one of her biggest supporters.  As noted in the Houston Chronicle, Ogg's request for additional prosecutors seems to have been interpreted as some sort of act of war by TCJC's Jay Jenkins.

"Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is the police and prosecutors," said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Apparently, Jenkins is so concerned that if Kim Ogg were to get a whole bunch of new prosecutors, the D.A.'s Office would just go out and start prosecuting things unnecessarily so that those new prosecutors won't get too bored.  That's a silly notion if you've paid attention to anything that Kim Ogg has done since taking office at the beginning of 2017, and it clearly illustrates that Jenkins hasn't spent much time in the trenches of Harris County criminal justice.

Ogg countered Jenkins' criticism with an editorial in this morning's Chronicle.  In typical Ogg fashion, she demonstrated her flair for the dramatic:

It's the kind of fear that awakens prosecutors in the middle of the night.

What if I help convict the wrong person?  What if I fail to bring a serial murderer to justice and he kills again?  What is the best outcome for a family plagued by domestic violence?  How do we prevent a drunk driver from leaving jail, getting in his car again and killing an entire family?

Prosecutors wrestle with these worries every day. 

Um, calm down, Kim.  Most prosecutors at your office waking up in the middle of the night are mostly worried about what Joanne Musick is retroactively doing with their evaluations.

That being said, Kim is right on this issue.  The District Attorney's Office does need more prosecutors, and contrary to Jay Jenkins' opinion, that doesn't compromise the Ogg Administration's progressive views towards the Criminal Justice System.  Harris County Assistant District Attorneys are overworked and underpaid.  Seriously.  To the point where it is kind of absurd.

Even with Possession of Marijuana cases and trace cases not being filed, there is no shortage of crime in Harris County, Texas.  Overall filings may be way down, but prosecutors still find themselves handling hundreds of cases.  Sure, those cases vary in degrees of seriousness, but each and every one of them still have things that must be done on them.

If Jenkins spent a little more time in the trenches, perhaps he would become more familiar with the extremely common occurrence of a case being reset because an overworked prosecutor didn't get a "To Do" done.  Those resets are (on average) about a month, and in many instances, that's a month of sitting in jail.

That can be an extra month in jail because:

1.  A prosecutor didn't get a final restitution figure on a theft case.

2.  A prosecutor didn't get in touch with the victim of an assault who wanted to drop charges or was okay with probation.

3.  A prosecutor didn't get a copy of the search warrant or the offense report.

4.  A prosecutor didn't have time to look at a search issue.

5.  A prosecutor didn't have time to talk to an alibi witness offered by the defense.

6.  A prosecutor didn't have time to review a DWI video.

The reason these types of To Do's don't get done is NOT because prosecutors are lazy.  Most prosecutors (especially Twos and Threes) are working ten or twelve hour days and on weekends.  The reality is that they are overwhelmed with cases. 

If a prosecutor is in a court that goes to trial frequently, that makes matters even worse.  You know how whenever you go on vacation, all the things that you are supposed to be working on have a tendency to pile up on your desk?  Well, that same phenomenon occurs every time a prosecutor is in trial.

In many instances, a prosecutor won't take a hard look at a case unless it is actually set for trial.  If you're sitting in jail because you can't make bond, that's going to be a really long wait. 

I think that the 2011 William & Mary law review article (written by HCDA Alum Laura Killinger and her husband, Adam Gershowitz) cited in the Chronicle article frames the overall issue best.  They noted both pros and cons to the idea of adding more prosecutors.

. . . adding prosecutors could "result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors."

. . . a better-resourced district attorney's office can allow prosecutors to identify and dismiss weak cases more quickly. 

The interesting thing to note about Laura and Adam's article is that it was written in 2011, which was before the "progressive" movement that is currently sweeping major metropolitan areas in the country.  A more hard-core, conservative elected District Attorney might use more prosecutors to file more cases, but that's not Kim Ogg. 

And, quite frankly, I don't think that expansive prosecution of low-level cases is the future of prosecution.  At least, not in the big cities.

Ogg's appeal for more prosecutors is a well-intentioned and necessary request that will help the progressive agenda, not hurt it.  Jenkins should have a little more faith in Ogg.  They both have the same hopes for the future of Criminal Justice. 

If he spent a little more time in the trenches, he might realize that.

Actual Innocence and Alfred Brown

Harris County District Attorney Kim Ogg announced yesterday that she was asking attorney John Raley to lead an independent investigation into the "actual innocence" of former-Death Row prisoner Alfred Dewayne Brown.  It was a wise move for a couple of reasons.

For starters, Raley is a highly respected attorney who has dealt with claims of factual innocence on previous occasions, most notably, the case of Michael Morton, who was wrongfully convicted for the murder of his wife, Christine. As most of you know, Raley's work on that case led to the exoneration of Mr. Morton, which, in turn, brought Christine Morton's actual killer to justice.

More importantly, it keeps the Ogg Administration from potentially being boxed into a decision that would not be well received by the Harris County Defense Bar.  As I've noted before, Ogg is in a tight spot with this.  If Ogg declines to declare Brown factually innocent, it isn't going to sit well with the Defense Bar. Ogg would be put in the awkward position of acknowledging that Brown is legally not guilty but not deserving of the money paid out to those proven factually not guilty.

Chronicle columnist Lisa Falkenberg characterized the Raley investigation as an unnecessary delay to Brown's desired compensation, asserting her belief that Brown has already been proven factually innocent . . . more or less.

That standard [for a legal finding of actual innocence] is roughly similar to the one that led the Texas Criminal Court of Appeals to toss Brown’s conviction due to constitutional error. An inmate must show that the constitutional error at trial “probably” resulted in the conviction of one who is actually innocent and that no reasonable juror would have voted to convict in light of the new evidence.

Um, maybe in the same sense that Sesame Street is "roughly similar" to The Wire.  Both deal with life on the streets in an urban area, right?

Brown's case was overturned based on a Brady violation when the D.A.'s Office realized that the defense had not been provided with a copy of telephone records that supported Brown's alibi by his girlfriend, Ericka Dockery.  The D.A.'s Office agreed that Brown deserved a new trial and the Court of Criminal Appeals signed off on a Writ of Habeas Corpus.

I'm not sure why Lisa is insinuating that the Court of Criminal Appeals practically made a finding that there was a constitutional error at trial that "'probably' resulted in the conviction of one who is actually innocent."  That is not the case.

In fact, whether or not Alfred Dewayne Brown is factual guilty is very much up for debate.

I've spoken with a couple of the prosecutors who handled the Brown case after it came back from the Court of Criminal Appeals.  Without hesitation, they will gladly state unequivocally that he deserved a new trial.  There is no debate that the evidence withheld by Rizzo was exculpatory and should have been turned over to Brown's defense counsel during trial.

But they will also tell you that they fully believe that Brown is factually guilty.  So will every HPD Homicide investigator that worked on the case.  I don't know enough about the details of the case to form my own opinion on Brown's guilt or innocence, but I will say that there can be a tremendous difference between legal innocence and factual innocence.

There can also be a tremendous variance in the strength of alibi evidence.  Some alibis can unequivocally exonerate somebody.  Others are less definitive.  The people who I've spoken to about the phone records that supported Ericka Dockery's story acknowledge that they were evidence of an alibi, but they were far from definitive.  They say if Rizzo had just turned over the phone records, he could have easily explained them away at trial.

Despite Brown and Falkenberg's protestations to the contrary, Brown's factual innocence isn't quite the no-brainer they portray it to be.

I'm going to hazard a guess that D.A. Ogg was a little concerned about Brown's innocence herself.  Having watched how she has handled this case, as well as others, I believe that she would have loved nothing more than to declare Brown factually innocent while lambasting the "toxic culture" of previous administrations.  She certainly had no problem notifying the press of other shocking developments on the case.

But I found this paragraph in Falkenberg's column to be very interesting:

But if Raley does not find Brown “actually innocent,” Ogg said she may have decide whether to charge him again in Clark’s murder. She chose Raley, she said, not to pass the buck, but because she felt the case needed an independent, fair review by someone outside the DA’s office.

Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.

I'm not accusing her of "passing the buck;"  to the contrary, my guess is that she wanted a credible voice such as Raley's to support whatever decision is ultimately made.

That's just smart politics.

Kim Ogg (Finally) Does the Right Thing

Despite my predictions in my previous post about what I believed was going to happen today during David Temple's court appearance in the 178th District Court, the Harris County District Attorney's Office finally recused itself from the high publicity murder case.

Regardless of the strengths or weaknesses of the facts of the case against Temple, it was unquestionably the right thing to do.  Although Kim Ogg took entirely too long arriving at (what many felt was) the obvious conclusion, the important thing is that she ultimately got there.  Whatever decisions are made about David Temple from here on out will be made without the improper influence of the members of Temple's defense team who now work within Ogg's Administration.

It is human nature to still feel frustration about how long Ogg took to recuse herself from the case and how little she communicated with Belinda Temple's family during the ordeal.  Her explanation that she needed more time to "review the case" rang hollow, and I heard from a couple of sources that the Temple file never actually left the hallways of the Appellate Division.  More likely, she needed some time to work up the courage to tell DeGuerin that she couldn't dismiss his case for him.

Whatever went on behind the scenes, Kim Ogg can now focus on being a progressive District Attorney in a major metropolitan area without having the looming specter of David Temple hanging over her head.  Although she may not realize it at the moment, she did herself a huge favor by finally letting go of the case.  Her reputation can recover from the appearance of impropriety that she brought upon herself for the first four months of her tenure.

More importantly, the family of Belinda Temple can know that the person or agency handling their case from now on doesn't owe David Temple's attorney any huge favors, or employ people like Steve Clappart or John Denholm, who would be willing to file capital murder charges on someone just to cast doubt on David Temple's guilt.

What happens after today will be up to somebody else, but the State of Texas versus David Temple can hopefully finally escape all of the sideshow that has been going on around it and return to the facts of the case.

If that happens, then today was a good day.

Good Additions to the Ogg Administration

The Ogg Administration has continued to make some positive additions in the personnel department over the past two weeks.

On January 11th, Ogg announced that retired-178th District Court Judge David Mendoza was joining the Administration as the head of the newly created Office of Professional Integrity.  As regular readers of this blog know, I'm a big fan of Judge Mendoza.  Although he had previously been a judge, I had never met him before he won the 178th bench in 2008.  I quickly developed a strong respect for him after appearing before him in his court.

Judge Mendoza is a quiet and thoughtful man who will be a tremendous asset to the Office in the days to come.  I'm glad to see that he'll remain a regular in the CJC as well.

Today, the Office announced two other solid additions to the CJC team with the addition of veteran defense attorney (and actual veteran) Tom Berg. As noted in Ogg's e-mail to the staff, Tom is a defense attorney and former Federal Public Defender, as well a retired colonel in the United States Army reserve.  He is joining the office as "First Assistant over the Trial, Appellate, and Special Crimes Bureaus."

Based on the specific title, I'm not certain if this means he will be the First Assistant in the same role that previous First Assistants have held.  Either way, he's a good choice.  He is highly respected by his peers and he is passionate about the Criminal Justice System.  He's also an experienced leader who will do well with the troops.

The other addition is Ruben Perez, a former Harris County and Federal prosecutor.  I don't know Ruben personally, but we seem to have a lot of friends in common.  Everything I've heard about him has been extremely positive.  His resume is impressive.  He is a 25 year veteran with the Feds who headed Human Trafficking, Civil Rights, and the Organized Crime Drug Enforcement Task Force.

He is taking over as head of Special Crimes and his resume seems to indicate that this will be a great match for him.

As I've written before, the personnel choices made by Ogg thus far are actually pretty strong (with three notable exceptions).  Hopefully the Office continues in this positive trajectory.