An Interview With Scott Greenfield

My friend (as well as the Great Grandfather of Criminal Blogging) Scott Greenfield interviewed me for the Fault Lines blog that we work on together.  You can read it by clicking here.

Note to Candidates

In the past I have linked campaign websites to each name of the candidates.  I didn't do that this year when I wrote the post on the election but only because it is a time consuming process.

I am more than happy to link up the websites if you send me the links.  I have already been contacted by one candidate to do that, and I was glad to accommodate him.

Just let me know.

Linda Garcia Appointed to County Court at Law # 16

The Harris County Commissioners appointed Assistant District Attorney Linda Garcia to be the Judge of the newly created County Court at Law # 16.

Linda is a great choice.  She worked for a long time as an Assistant District Attorney before being appointed to the Parole Board.  After her term wrapped up there, she returned to the D.A.'s Office, where she has been ever since.  She has great experience and compassion and will do an awesome job.

Congratulations Judge Garcia!

The 2016 Election Field

Polling for the 2016 Election closed yesterday at 6 p.m. and we now know the election field for the March 1st primary.  There were a couple of surprises and last minute filings.  Although I'm no Charles Kuffner, I'm thinking that 2016 is probably going to be a very good year for the Republican candidates locally.  I don't think either Hillary Clinton or Bernie Sanders will bring people to the polls in Harris County like Barack Obama.  We shall see.

The Democratic Party is going to be hurting in this department as well, because two out of the three incumbent Dems in CJC positions are not running for re-election.

As for the primaries, here you go . . .

Harris County District Attorney

Republicans -- Unsurprisingly, District Attorney Devon Anderson drew no challengers in the Republican primary, which is hopefully a good indicator that some stability has returned to the Party.  Although I haven't always agreed with some of the personnel and policy decisions that have come out of the Office under her tenure, Devon has added some much needed stability for her employees following the Lykos years.

Democrats -- The Democrats this year have a three-way battle between 2014 HCDA candidate Kim Ogg, nimwit extraordinaire and perpetual candidate Lloyd Oliver, and former Court of Criminal Appeals Judge Morris Overstreet.  Once again, the Lloyd Factor will be interesting to watch.  He has a magical way of screwing up elections by his mere presence.  I'm not a fan of the way Kim acts on the campaign trail and find her desire to jump on every passing bandwagon troubling.  So far, I like Judge Overstreet as the best candidate the Dems have in this race.  It is difficult to argue against the experience of being a former judge from the Court of Criminal Appeals and he doesn't have the baggage that Ogg and Oliver bring to the table.

174th District Court

Democrats --  Democratic Judge Ruben Guerrero has elected not to run again for the bench, which is a blow to the Democratic Party as far as CJC elections go.  Guerrero was elected as part of the 2008 Democratic sweep, but he was one of only three judges that managed to hold onto his bench when he was up for re-election in 2012.  His decision to not run has opened up the door to Garland "Mack" McInnis, former 338th District Court Judge Hazel Jones, and attorney Raul Rodriguez.  Hazel was not a popular judge while on the bench in the 338th and it is curious to see her running for a bench other than her old one.  Garland is a former defense attorney who has worked for the County Attorney's Office for some time now.  He's a very sharp legal mind and a good candidate.  Raul Rodriguez is a defense attorney that I know and like.  My early money would be on Raul to win this race on the Dem side.

Republicans -- regardless of who wins the Democratic primary, my vote in November will be going to my friend Merry Katherine McDaniel, who is running without a challenger in the primary.  Katherine is a longtime prosecutor who I've known since I started at the D.A.'s Office in 1999.  I'll talk more about her when we get a little closer to November.

176th District Court

Democrats -- former 176th Judge Shawna Reagin will attempt to regain the bench she lost in 2012, but first she has to get through the primary in a race against Nikita "Niki" Harmon.  Harmon is a municipal court judge who ran unsuccessfully in 2014 for a county court bench.  Of the two, Reagin is immensely more qualified.  She was a highly skilled defense and appellate attorney before becoming a judge in 2008.  

Republicans --  although there were some rumors that the District Attorney's Office was looking to field a candidate against incumbent Republican judge Stacey Bond (because they were upset about her recent ruling on prosecutorial misconduct) that fortunately does not appear to be the case.  Judge Bond has been outstanding since taking the bench in 2013 and she is highly respected.  The D.A.'s Office may be a little pissy with her at the moment, but they will get over it.  She's a damn good judge.

177th District Court

Republican --  Incumbent Republican Judge Ryan Patrick has also been doing a pretty damn good job since taking the Bench.  Defense attorneys were fully ready to give Judge Patrick a hard time based on his relative youth at the time he became a judge, but he has successfully silenced his critics with a strong knowledge of the law and an even temperament.  Judge Patrick is developing a very impressive track record of being a truly neutral judge who knows the law and follows it.

Democrats -- two defense attorneys are running against Judge Patrick - David Singer and Robert Johnson.  I don't recall Johnson running for any other CJC benches in recent memory, but Singer has run several times.  Both are equally qualified but will have a VERY uphill battle challenging Judge Patrick in November.

178th District Court

Democrats -- I was very saddened to hear that Incumbent Democrat David Mendoza had decided not to run again.  I didn't know him before he was elected in 2008, but I've come to be a tremendous fan of the way he has run the 178th District Court over the past 8 years.  I'm truly sorry to see him go and I hope he will be a visiting judge that we see around the CJC quite often.

The race to replace Judge Mendoza will be between prosecutor Kelli Johnson and defense attorney Lori Gray.  Both have run for office before, with Kelli running unsuccessfully in 2014 for County Court at Law # 8 and Lori last running (unsuccessfully) in 2010 for Court # 10.  Kelli is a close friend of mine, so I'm biased, but I think she is the most qualified candidate.

Republicans -- with no incumbent to run against, the floodgates have opened with four candidates running on the Republican side for the178th.  To start with, we have Nile Copeland, who is apparently a municipal court judge who last ran in 2012 as a Democrat.  Prior to about three minutes ago, I'd never seen or heard of him.  Next we have Bash Sharma.  I'm not entirely sure who he is, but I do believe he actually practices criminal law, which gives him a step up on Copeland.

The two qualified candidates in the race are former prosecutors and current defense attorneys Phil Gommels and Xavier Alfaro.  Both of these guys are great guys and good lawyers.  Either would make a good candidate, but I would give the edge to Xavier, who has more experience.

179th District Court

Republicans -- Incumbent Republican Kristin Guiney is running for re-election unchallenged in her primary, as it should be.  In addition to being a family friend and one of my favorite people, she has also proven to be an outstanding judge since taking the Bench in 2013.  Judge Guiney won her primary in 2012 by one of the widest margins that year and she has lived up to expectations on the Bench as an efficient, intelligent, and compassionate judge that strives to make the entire System better.

Democrats -- former 179th Judge and current defense attorney Randy Roll will attempt to retake his bench but first he will have to get through prosecutor Stephen Aslett.  The early word is that this race is already getting contentious.  Although I like Randy, he was controversial on the Bench with both prosecutors and the defense bar.  Aslett is a newcomer to Harris County politics, but is a die-hard Dem.  I'm genuinely curious to see how this one shakes out, but either way, I'll obviously be voting for Judge Guiney in November.

337th District Court

Republican incumbent judge Renee Magee will face off against former 337th Democratic judge Herb Ritchie in a rematch from 2012.  Neither have opponents in their primaries, so we'll have more to say about this one as we get closer to November.

338th District Court

In another race where both primaries are uncontested, incumbent Republican Judge Brock Thomas will be facing Democrat and defense attorney Ramona Franklin in November.

339th District Court

Democrats -- Incumbent Democrat Judge Maria (Terri) Jackson is the one and only incumbent running for re-election in a CJC race.  Since taking the Bench in 2009, she has been very popular in the Defense Bar for her kind demeanor and her willingness to consider both sides of every argument.

Republicans -- Felony District Court Chief and political newcomer Mary McFaden will be running against defense attorney Antonio Benavides for the Republican nomination.  Mary is a friend of mine and a very smart attorney.  She is considered to be a very hard-core prosecutor which makes some in the Defense Bar a little worried.  Benavides is a defense attorney that I only know in passing.  He might want to consider changing his Facebook profile photo before running for office.  Just sayin'.

351st District Court

Republicans --  Longtime incumbent Republican Judge Mark Kent Ellis will run again for the 351st Bench.  He is the lone Republican survivor of the 2008 Democratic sweep and a good judge.

Democrats -- Defense attorneys Greg Glass and George Powell will face off against each other for the Democratic nomination.  Both men are friends of mine and both are qualified candidates.  I have no idea who wins this primary.

County Attorney

Although the County Attorney's Office is really related to the CJC races, I would be remiss if I didn't mention that incumbent Democrat Vince Ryan will be running again.  His challengers are Chris Carmona and sometimes-I'm-a-Republican-when-I'm-running-for-office-but-really-I-support-Democratic-candidates-most-of-the-time attorney Jim Leitner.

Vote for Chris Carmona, please.

And one more Race before we go . . .

232nd District Court Judge Mary Lou Keel is running for Court of Criminal Appeals.  Judge Keel is one of the smartest and best judges that I've ever tried a case in front of.  Although I would hate to see her leave Harris County, she would make an outstanding Judge of the Court of Criminal Appeals.  Remember to tell your friends and family members across the State about her for this race.  She has more judicial experience than both of her opponents combined.

Election years are always exciting.  Remember to get active and involved.  The general public doesn't pay much attention to what goes on at the CJC, so it is up to those of us who practice down there to get the word out.

Jim Leitner Returns! [Updated]

I received word today that former Harris County District Attorney's Office 1st Assistant Jim Leitner had signed up to run for Harris County Attorney.

We haven't heard much from Big Jim since his testimony in the David Temple hearing, where he repeatedly claimed that I wrote untrue things about him, and then subsequently admitting that all the things I had written about him were, um, completely accurate.  When we last checked in with him, his employment had been terminated by Harris County Sheriff Ron Hickman and he was working as a contract attorney in the 208th District Court.

Jim's return to politics is interesting for a couple of reasons.  First and foremost, he never seems to win anything.  He's made a couple of tries to be District Attorney that haven't panned out too well for him.  More interestingly, however, is the fact that he seems to be having a bit of an identity crisis on what political party he belongs to.  Jim has been very public in his support of Democratic candidate for District Attorney Kim Ogg.  Prior to being terminated by Sheriff Hickman, he had been appointed as a high ranking member of the Sheriff's Office under Democrat Adrian Garcia.

So, when I heard that Jim was running for something again, my first question was "under what Party?"

Well, it turns out that he's running as a Republican.  I don't know how well received that will be within the upper echelons of the Harris County Republican Party.  They tend to not like candidates who have failed in two previous elections, and they really don't like those who aren't loyal.

Jim's opponent in the Republican Primary is former Civil County Court at Law judge Jacqueline Lucci Smith.  My understanding is that she has worked for the Harris County Attorney's Office and that she doesn't seem to have the same confusion over what Party she belongs to.

Part of me hopes that Jim wins and makes Pat or Nick Lykos his first assistant.  That's only because it would give me more entertaining material to write about.  However, I value my Right to Vote too much to cast a ballot in favor of him.

I don't know much about former Judge Smith, but she'll have my vote.

UPDATE:  I learned today that attorney Chris Carmona filed for County Attorney last night and that Judge Smith is stepping aside to be his treasurer.   

6th Annual Feast of Fashion

On November 20th from 11:30 a.m. to 3:00 p.m., the 6th Annual Feast of Fashion will be held at the JW Marriott Hotel at 806 Main Street, Houston, TX 77002.

This annual event, organized by Julie Jones, raises money for the Jeanette Williams Foundation  which raises money to send children with cancer and other serious illnesses to camp.  It is a great cause and involves a tremendous effort by a lot of people -- especially Julie.

Tickets are $55.00 each (or $550.00 for a table for ten) and can be purchased online at www.jeanettewilliamsfoundation.org.

Morris Overstreet Joins the Race for Harris County District Attorney

In a somewhat unanticipated move, former Court of Criminal Appeals Judge Morris Overstreet has announced his candidacy for Harris County District Attorney on the Democratic ticket.



He will be running against defense attorney Kim Ogg in the primary.

I only know Judge Overstreet in passing, but he's always been very nice to me.  To be honest, I was unaware of all of his credentials.  I didn't realize he was a former-prosecutor and I certainly didn't know he was formerly on the Court of Criminal Appeals.  He has an extremely impressive resume and a very interesting background.

I was anticipating the primary season to be kind of quiet in 2016.  Looks like I was wrong.  Kim Ogg should be very concerned.

Has Batson gone as far as it can go?

I've written a post over at Fault Lines on the Timothy Tyrone Foster case that the Supreme Court case heard yesterday.  If you haven't been following it, prosecutors on a 1986 case were pretty blatant in writing down and singling out the African-American members of a jury panel and then striking them with peremptory challenges.

Although the case is egregious, what more can the Supreme Court do to enforce Batson?  I wrote more about it here.  I hope you will check it out.

Of Offers, Acceptance and Personal Animosity

For the most part, I typically don't write about the day-to-day run-ins that I have with prosecutors.  Disagreements with the State are par for the course in an adversarial system and most of them don't merit a blog post.  As a general rule, I don't write about the particulars of my cases, and I don't write about the particulars of the fights I get in.

However, sometimes there are exceptions to that rule.  

A few weeks ago, I was handling the case of a friend of a friend of mine in a misdemeanor court.  He had been charged with an assault case and a criminal mischief stemming from the same incident.  At trial, he had been acquitted of the assault, but convicted of the criminal mischief and placed on probation.  By September, a Motion to Revoke had been filed on his probation and I went to court with him.

The Motion to Revoke was based largely on delinquent fines and fees, but I knew that a failure to attend anger management allegation was probably not going to sit well with the Judge.  My primary goal in going to court with him was to see if the Judge was willing to entertain the idea of letting him catch up on anger management and not revoke his probation.  

When I got to court, the CLO told me that in addition to the fines, fees and anger management, the Complainant on the cases had been calling in and claiming that my client was threatening her.  I was surprised, because that was not written in the actual Motion to Revoke.  Ultimately, I was told that I needed to speak with the Chief of the court.

This was where things began to go south.

I had met the chief in passing during the time he was serving as a Felony Three, but I didn't really know him or even his name.  All I really wanted to do in talking with him was get an assessment over whether or not it would be a realistic option that my friend would be staying on probation.  I handed him the file and sat down next to him at counsel table.

"I know this case," he said.  "He's been threatening her."

"That's what I keep hearing, but I don't see that alleged in the Motion to Revoke," I said.

"We can amend it," he snapped.  

"Um, yeah, I know you can amend it," I said, "but amend it to say what?  What are the allegations?"

"He assaulted her."

"He was found not guilty of that," I reminded him.

"I'm still going to use that against him," he snapped.

"Well, good luck with that," I said.  "I still want to know how he is supposed to have been threatening her."

"She's been e-mailing me," he said.  He began typing at his computer and pulled up two surveillance photos of my client -- presumably at the complainant's apartment.  Both photos were date and time stamped and preceded my client having been placed on probation -- a fact I pointed out to him.

Not to be deterred, he popped up another email - this one a written email from the Complainant to him.  As we started to read it, the Judge called him up to the bench.

"Can I finish reading this?" I asked him.  

"No," he said.  "You can't."  He then looked at another prosecutor and said, "You make sure he doesn't read this."

At this point, I was both annoyed and amused.  He had begun showing me the email on his own and I asked whether or not I could look at it without him as a courtesy.  When he commanded the other prosecutor to make sure I didn't read it, I initially thought he was joking.

"Seriously?" I asked.

"Yeah," he said, loudly.  "Seriously."  It was embarrassing.

The case got reset that day and we reconvened last week.  After talking with the Judge, it was decided that my friend/client wouldn't be continuing on probation and that he would be spending some time in the Harris County Jail.  I asked the Judge if she had an amount of jail time in mind.  She stated that she wouldn't accept a recommendation of less than 45 days, but that I would need to speak with the chief.  After talking to my client, who said he would sign for 45 days, I approached the chief.

"I need a recommendation on this case," I told him.

"What did the Judge say?" he asked.

"She said no less than 45 days," I said.

"Okay," he said, "then how about 45 days?"

"Sounds great," I said.  "We accept."

He was very polite and began filling out paperwork.  As he was writing, I thought we must have just caught each other on a bad day at the last setting, and I was glad that we were going to work things out.

Then, he began to frown.  

"I remember this case," he said.  He stopped writing up plea papers, marked on the file and tossed it to me.  He had crossed out the "45 days" and written "60 days."

"You offered us 45 days and we accepted," I said to him.

"And now I've revoked the offer."

"You can't do that," I said.  "You made an offer, and we accepted it."

"And now I've revoked the offer," he repeated.

"You can't do that," I said again. 

"I just did," he said.

At this point, the Judge called to him from the bench and told him he needed to quiet down.

He stood up and announced, "I'm sorry, Judge, but this defense attorney here is trying to pull a fast one on me."

It was at this point I got really annoyed.  To my credit, I resisted the urge to tell him I had been the chief of this court before he was old enough to drive.  We approached the bench and I pointed out to him and the court that if he was going to base how he handled the case on emails from the Complainant, then I was probably entitled to see those emails under the Michael Morton Act.  As it turns out, the Complainant had not actually made any claims that my client was threatening her since he was placed on probation.

So, we returned to the issue of the 45 day offer that my client had accepted.

"Maybe you should call the Deputy Division Chief and talk to him about offers and acceptance," I said.

He indicated that he wasn't going to do that.  So, I did it for him.  After a brief conversation, the 45 days was re-offered and re-accepted. 

Now, I don't know if this particular chief missed the day in law school where we all learned about how an Offer plus an Acceptance plus Consideration equals a Contract.  At the risk of sounding 75 years old, back in my day at the D.A.'s Office, if we made an offer and it was accepted, we didn't revoke it.  That was all there was to it.  A deal was a deal.

Additionally, withdrawing a plea bargain offer after acceptance is considered unethical by the American Bar Association.  Standard 3-4.2(c) states: 

"A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present."

There isn't a prosecutor alive that hasn't made the mistake of making a recommendation that they later decided was inappropriate.  It just happens.  Office folklore is filled with people who inadvertently offered 2 years TDCJ on a Defendant who was looking at 25 years to Life.  

You just have to accept the fact that you screwed up and move on.  

Kim Ogg to Run Again

I received an email today from the Kim Ogg for Harris County District Attorney campaign, stating that there would be a campaign announcement tomorrow (September 25th) at 10:00 a.m. across from the CJC.

This is not surprising news, since she pretty much confirmed that she was going to run again immediately after she lost the election for the unexpired term in 2014.

As I stated when she ran last time, Kim is a qualified candidate.  I was disappointed with some of her antics during her 2014 campaign, and I hope there will be more of a discussion of actual issues this time around.

It is worth noting that Kim had a closer margin in her race than most other Harris County Democratic candidates did in 2014.  She is definitely someone that Harris County District Attorney Devon Anderson will need to take seriously on the campaign trail.  However, Devon will now be viewed as a solid incumbent with several years under her belt by November of next year.

As usual, my amateur political analysis is that this race will be decided by who the Republican and Democratic candidates for President are.  I don't see Hillary Clinton, Bernie Sanders or Joe Biden inspiring Democratic voters to flock to the polls like they did for Obama in 2008.  That being said, if Donald Trump ends up as the Republican candidate, I could absolutely see the Latino community being very motivated to get out and vote against him.  I think the Latino voting bloc is the most influential segment of voters in Harris County right now.

As always, the presidential election years are always so much more interesting than the gubernatorial ones.