Kim Ogg and the Backlog Blame Game

Kim Ogg had jury duty Wednesday.

How do we know this?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And so another case is added to the backlog.

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

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

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

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

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

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

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

And so another case is added to the backlog.

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

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

And so another case is added to the backlog.

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

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

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

Judge Ramona Franklin and the 338th Star Chamber

 It was twenty-two years ago this evening that I learned (through the world's slowest dial-up internet connection) that I had passed the Bar Exam.  In some ways, it doesn't seem that long ago.  In others, it seems far longer than it actually was.  I've been around since the time of Johnny Holmes.  I've handled cases in multiple counties across Texas, and I've probably appeared in front of over one hundred judges.

I've appeared in front of good judges and bad, smart judges and not-so-smart judges, funny judges and humorless judges, kind judges and downright mean judges, strict judges and informal judges, liberal judges and conservative judges, humble judges and the utmost arrogant of judges.  I've appeared before judges that I adored and judges that I despised (and always will.)

I've even appeared before a certifiably crazy judge a time or two.  Some of my wildest war stories come from my time as the Chief of County Court at Law # 5 when Judge Janice Law was on the Bench. (Sidenote:  do yourself a favor and read the article about Judge Law.  It is wildly entertaining.  And accurate.)

I've seen judges make rulings or implement policies that I thought were dead wrong -- sometimes infuriatingly so.  I've seen them bend over backward to interpret the law in a way that suited their agenda -- often cruelly so.  

But I can honestly say that I've never seen a judge quite like Judge Ramona Franklin of the 338th District Court of Harris County, Texas.

I first met now-Judge Franklin when she and I both worked at the Harris County District Attorney's Office.  I had a three-year headstart on her at the Office, and we never worked together in the same court.  I knew her to say "hello" but she didn't seem to socialize that much.  She was a prosecutor for a few years, but if I recall correctly, she had left the Office before I did.  I don't recall hearing anything negative in particular about her during her tenure.

She became a defense attorney before I did, and that job can be rather nomadic by nature.  That's not unusual. Unless you represent co-defendants on a case, there isn't a lot of teamwork on this side of the law.  I never heard anything negative about her as a defense attorney, either.

I've only personally appeared before her once or twice since she was elected to the 338th bench in 2016.  Those times were brief but pleasant.  She was friendly and nothing was out of the ordinary.  

I bring all of this up because I want to stress that I have had no negative interactions with Judge Franklin since I've known her.  Although she and I are not friends, we certainly are not enemies, and nothing that I'm about to write is born out of a personal issue that I have with her.  I've criticized many a person on this blog over the past thirteen years and I feel (at least, I hope) that I've always been transparent when those criticisms arose from a personal issue.

This isn't one of those situations.  I want you to know that.

It goes without saying that the standard operating procedures for courtrooms around the country were thrown out the window in 2020 as the Covid-19 crisis took effect.  Things that we took for granted -- like walking into a courtroom to observe the proceedings, for instance -- suddenly disappeared in favor of safety protocols designed to keep from further spreading the virus.  

Over the past year, the System has adapted as best it could.  Courts have waived appearances for defendants accused of crimes in the majority of cases and settings.  Attorneys have the option of using Zoom video conferences for making appearances.  Courtroom proceedings are viewable on publicly accessible channels on the Internet.  

In the beginning, attorneys were free to attend court in person if they wanted to risk their own possible exposure to the virus.  Some did.  Many didn't.  The majority of the judges worked to set bonds that defendants could make and subsequently waived the requirement of appearance for those defendants who weren't in custody.  Some were required to appear by Zoom.  Others did not have to appear at all as long as their attorney was there on the client's behalf (either personally or by Zoom).  Much to the dismay of many zealous Law & Order-types, the general theme was to get as many defendants with pending cases out of jail and out of the courthouse to prevent further spread of the virus.

Inexplicably, Judge Franklin continued to go in the opposite direction.  While her brethren and sistren in the judiciary were trying to find ways to lower bonds to reduce the jail population, Judge Franklin was looking for ways to get defendants who had already posted bond taken back into custody.  

In an August 28, 2020 article in the Houston Chronicle, reporters Samantha Ketterer and St. John Barned-Smith wrote of judicial complaints made against Judge Franklin for the practice, citing two specific incidents where defendants who had paid bonding companies a non-refundable fee to post their bonds had those bonds revoked by Franklin following one of her "bond reviews."  In these instances, the defendant was taken into custody, despite having made bond and appearing in court as required.  The bonding company got their money back, but the bonding company was under no obligation whatsoever to return the fee paid to it by the defendant.  No circumstances had changed since the initial bond had been set, other than Judge Franklin whimsically deciding it wasn't enough.

There's a really big problem with that, however.  

Judge Franklin wasn't following the Code of Criminal Procedure by raising and revoking those bonds.  A defendant is entitled to a hearing before that can happen, and they are entitled to advanced notice of that hearing.  An attorney knows that and would fight for that right.  Unfortunately, as noted in the article, Judge Franklin was revoking those bonds on at least some of those defendants without their attorneys being present.

From the article:

Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.

Apparently, Judge Franklin missed the Due Process Clause of the 5th Amendment, which states that no person "shall be deprived of life, liberty or property, without due process of law."  Taking a person into custody on a bond revocation without the benefit of a hearing with notice is violating that person's right to Due Process.  A defendant probably doesn't know that off the top of his head though, does he?  Maybe that's the reason that the 6th Amendment has that guarantee of a lawyer that every American who has ever watched a police drama on television knows about.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Judge Franklin revoking and raising bonds on Defendants is the one-two punch of Constitutional violations.  Unfortunately, we are just getting started with the Star Chamber she is running in the 338th District Court.

Remember how I mentioned that courts in Harris County and around the state have live-streamed internet channels of daily proceedings?   Well, the 338th has the channel but made the notable decision not to turn it on.  Want to know what Judge Ramona Franklin is doing in her courtroom?  Is she following the Constitution of the United States and the laws and procedures of Texas?  Is she strong-arming defendants into pleading guilty?  Is she interrogating them without their lawyers present?  Is she having them arrested because she doesn't like their attitude?

Who knows?  She's turned her camera off.  We'll get back to that issue in a moment.

As reported in an article by Samantha Ketterer in the Houston Chronicle this week, the crisis in the 338th came to a head again on Thursday, April 29th.  I know that Samantha's article is behind a paywall, so if you don't have a Chronicle subscription, I'll tell you what happened.  I was tangentially involved due to my role as the current leader of the Harris County Criminal Lawyers' Association's Strike Force.  For those of you who are not familiar, the Strike Force, in addition to having a very cool name (that I didn't select by the way, but I totally would have if I had been the first person to ever lead it), is a group of volunteers within HCCLA who respond when an attorney finds himself in jeopardy with a judge.

As reported in the Chronicle, the attorney in need of Strike Force assistance this week was Clay Conrad.  The judge he needed assistance with was Judge Ramona Franklin.

The preceding week, Conrad had a client charged with the State Jail Felony charge of Retail Theft.  For those of you who don't practice criminal law, a State Jail Felony is the lowest level of felony in the State of Texas.  It is punishable by a maximum of 2 years in State Jail.  His client also had no previous criminal history and was out on a $1500 bond.  The client was ordered to appear before Judge Franklin and Conrad was prepared to accompany his client to court.

Then a not-so-funny thing happened.

The 338th District Court staff told him that, per Judge Franklin's orders, he would not be allowed to enter the courtroom with his client.  Per Judge Franklin's Covid protocols, the defendant must be present, but the defense attorney was forbidden from entering.

Conrad was told that he could appear by Zoom, and that would satisfy the defendant's right to counsel.  Conrad told the court that was unacceptable and that he would need to have the ability to stand side-by-side with his client in open court like any good lawyer would.  An attorney watching a client appear before a judge while he or she observes through Zoom is the equivalent of having no attorney present at all.  The defendant can't ask a private question.  The attorney cannot give privileged advice without it being audible to the judge, the prosecutors, and the audience.  

Knowing Judge Franklin's proclivity toward having spontaneous "bond review" hearings, it was even more vital that Conrad stand side-by-side with his client in open court -- far more so than it would be in other courts that take Due Process more seriously.

Conrad and his client were put at the end of the line on cases called before the judge that day.  Ultimately, he was told that he could file a brief as to why he should be allowed in the courtroom with his client.  Judge Franklin informed him the brief couldn't be any longer than 4 pages.  He was told to return to court on April 29th.  He wrote his brief.  He came back on the 29th.  

The HCCLA Stike Force came with him.

Clay Conrad (right front) and the Strike Force

So did Samantha Ketterer, who had been made aware of what was happening.  Ketterer asked the court if she could enter the courtroom to observe the proceedings, and was denied entry by the bailiff, on orders of the judge.  Ketterer followed up by asking if she would be able to watch the live feed on the internet as was possible with all other courts.  As per usual, the live stream of the 338th was turned off so that the actions of the court were visible to no one other than those inside or the attorneys admitted for a Zoom hearing.

Conrad asked whether or not he would be allowed to enter with his client, and he was told that he would not.  He must attend by Zoom.  Conrad told them that he did not have the ability to Zoom with his phone and that he did not have a computer with him.  In the meantime, Strike Force ninja Kate Ferrell reached out to personnel she hoped might have some sway over Judge Franklin regarding that live feed.  Without going into the details of those conversations, the response was swift and urgent. Approximately an hour later, the feed to the 338th District Courtroom was suddenly active.

Once the feed was live, it was watched by criminal defense attorneys around the State.  Conrad's issues with Judge Franklin had also been conveyed to the Texas Criminal Defense Lawyers' Association, which was also monitoring the situation.

As she had the previous week, Judge Franklin called on Conrad's client dead last out of all the defendants on the docket that day.  At approximately 1:30 p.m. (docket had started at 10:30 for bond cases), Franklin relented and allowed Conrad to enter the courtroom with his client . . .

. . . where they immediately held a "bond review."  The State of Texas, by and through her Assistant District Attorney, moved to raise the bond on this dastardly first offender charged with a State Jail Felony to $3,000.  I don't know specifically which prosecutor it was, but, seriously???  A prosecutor, who clearly understood Judge Franklin's tendency to revoke and raise bonds for little to no reason, attempted to have her do just that because . . . he could?  

Conrad objected, citing no notice to the hearing and demanding that his client be afforded her Due Process rights.  Judge Franklin elected not to raise the bond, and after a needlessly painful struggle, Conrad's client was allowed to walk out of the courtroom with her attorney.

Another defendant who had appeared before Judge Franklin that morning had not been so fortunate.  

A 17-year-old defendant, whose mother had paid to have him bonded out, was also ordered to appear before the court that morning.  The mother had not hired an attorney for her son yet.  He was told to enter the courtroom.  The mother was told that she could not.  She sat outside the courtroom with no idea of what was happening with her child.  Sometime later, court personnel came out and told her that her son's bond had been reviewed, revoked, and raised and he had been taken into custody.  The money she had paid to a bonding company had been a waste.  

All of this is just an example of one day in the 338th District Court, Judge Ramona Franklin presiding.   There are many other stories out there.  Many of them have been reported to those who are tasked with monitoring the actions of judges.  As of this writing, no action has been taken.

I realize that, generally, those accused of crimes don't automatically garner a lot of sympathy, especially not in Texas.  Even if that's the case, we should all value the rules that guarantee a fair fight when one is accused of a crime.  Judge Franklin is effectively running a Star Chamber, shrouded in secrecy and devoid of any apparent feelings of obligation about honoring the law and procedure.  Something simply must be done and the powers that be need to stop their hesitancy in acting about it.  This is absolutely an emergency situation.

I know this post is already excruciatingly long, but sadly, there is a lot of content to cover, and there is one additional issue that needs to be addressed.

What in God's name is "progressive" District Attorney Kim Ogg doing by allowing and encouraging her prosecutors to participate in what is happening in the 338th?  Why on Earth is she participating in bond reviews with no notice and without hearings?  As noted in the Chronicle article from August, the appellate court ruled that Judge Franklin could not revoke and raise the bond in one of the cases cited.  That ruling is on hold because Ogg ordered her Office to take that issue up on appeal to a higher court.  In the meantime, prosecutors in the court continue to ask for higher bonds, sometimes apparently (as in Conrad's client's case), just for the hell of it.

Judge Ramona Franklin was re-elected without an opponent in 2020.  She is beginning her fifth month of a brand new, four-year term.

This should scare the hell out of you.  

In the meantime, just pray that you never find yourself accused of a crime before the 338th District Court, Honorable Ramona Franklin presiding.

Services and Remembrances for Jordan Lewis

The family and friends of Jordan Lewis have asked me to share the planned events for our friend's services and remembrances and to share their thanks for the outpouring of sympathy during this very sad time.  

Services will be tomorrow, Thursday, April 15th at 1:00 p.m. at Congregation Emanu El in Houston.

Due to Covid restrictions, there are limits to the number of people who can attend Jordan's funeral.  In-person attendees are limited to family and close friends who have been specifically invited by the family.

Jordan's family does want all of his friends to be included, however, and they have made arrangements for the services to be live-streamed.  You can find the link by clicking here.  

Additionally, there is reserved space at Kirby Ice House (3333 Eastside, Houston, TX 77098) at 1:00 p.m., where the funeral services will also be live-streamed.  Drinks and a food truck will be available and masks will be required to attend.  

Services will be ending at approximately 1:45 p.m., at which time Jordan's family will be coming to Kirby Ice House to meet with friends who were unable to attend in person.  They are looking forward to meeting with everyone there and hearing any and all stories you can share about our friend and colleague.

Plans for a scholarship that honors Jordan's legacy of service and devotion to the practice of Criminal Defense are underway.  The family asks that, in lieu of flowers, you please consider donating to that scholarship once it has become established.

Jordan Lewis

 Our Criminal Justice World was absolutely rocked today to learn of the sudden and unexpected passing of our friend and colleague, Jordan Lewis, at the age of 40.

I honestly don't even know where to begin with what I'm writing here because it seems so surreal to think that he's gone.  

He was my friend, although many knew him far better than I did.  He became a defense attorney in 2008 which was around the time I was wrapping up my career as a prosecutor, so I never dealt with him in an adversarial situation. I'm pretty sure that we first met around that time when we were both single and hanging out at Char Bar.  

Back in those days, the younger lawyers came to hang out and hear war stories from the older lawyers.  He was part of that group.  He was an extremely nice guy.  Fun to hang out with.  He was very earnest about his approach to defending clients.  He was very zealous with his ideals, but he wasn't naive about the way the System treated them.  He was very obviously the attorney who did his homework and wanted to work hard to be the best at what he did.

In the next couple of years, I remarried and had a second child, so I didn't hang out with the old guard at the Char Bar anymore.  I know Jordan got married and had two children, as well.  I didn't see him out and about socially anymore, but I'd see him at the CJC regularly and we'd always stop and talk for a minute.  

Jordan was always on the move in the profession.  As I mentioned, he did his homework and he worked hard.  He zeroed in on the laws and the procedures governing Driving While Intoxication offenses.  He challenged accepted protocols and he made a name for himself.  It seemed that in the blink of an eye, the rookie defense attorney that I met at Char was suddenly a highly respected authority in his field.  

It would have been very easy for him to keep that knowledge to himself as a very profitable source of revenue, but it was important to Jordan to pay forward what he had learned.  He was well known for being a constant resource for attorneys that had questions about anything -- from DWI to financial planning.  He was somebody who was there to help others find their way in a tricky business that he had mastered.  He gave speeches.  He answered phone calls.  He showed up in court when people needed help.

He was, without question, one of the Good Guys.

Facebook and the HCCLA Listserve have been filled today with heartbroken tributes to a good man who gave so much of himself to so many other people.  Our hearts are heavy with grief for a young father and husband with so much professional talent.  He was well-known and very loved by his CJC family and we are devastated for what his family is going through.

You will be missed, Jordan.

Kirby Taylor

The Harris County Criminal Justice world was heartbroken to learn of the unexpected passing of longtime defense attorney Kirby Taylor this week.  

Most of us have known Kirby since starting our careers in the CJC world.  I remember meeting him as a baby prosecutor back in 1999.  To use the term "universally beloved" would be a very appropriate way to describe this dear, sweet man.  He was kind and friendly to all and everyone that I know found him to be one of the most endearing people at the courthouse.

He was a lawyer who handled the most serious of cases with compassion coupled with common sense.  He fought hard for his clients with credibility and honesty that worked well for him in his practice.

If you ever met Kirby, you doubtlessly knew of his trademark "crazy socks" that became his calling card.  Regardless of whether he was wearing a three-piece suit or casual clothes, he was guaranteed to be wearing socks that could potentially zap your retinas.  He also carried with him the largest wallet I've ever seen in my entire life.  It wasn't filled with money (he once showed me) but with receipts, notes, cards, and other things.  It resembled a large rock and was held together with rubber bands.

Several years ago, he and his son were the victims of a horrific act of violence that left Kirby both physically and emotionally scarred for life.  If there was anything positive that came from that tragedy, it was the opportunity for our CJC community to let Kirby know how much we all loved him and hurt for him.  He came back from that tragedy and returned to the courthouse.  He was the same sweet man that he had always been, but there was a sadness with him that never left.

He still smiled and laughed that distinctive laugh of his, but it was different.  It was impossible to see him without feeling somewhat emotional about what he had suffered through.

It goes without saying that all of us will miss Kirby Taylor.  He was definitely a giant (both physically and metaphorically) of the CJC.  I'll miss his laugh and his smile, but most of all, I will miss the kindness that he showed to everyone he met on a daily basis.

It has been suggested to me that maybe we wear our craziest socks in honor of Kirby.  So, this Friday, wear them if you got them.  Kirby would have gotten a good laugh at that.  

Rest in Peace, Old Friend.

The Perils of Zooming

 Since I felt it was appropriate to make my critiques and observations about others' Zoom behavior in this post last May, I felt it would only be fair to tell on myself for something that happened this morning . . . 

If you are reading this blog and don't know me personally, then you may or may not have picked up on the fact that I like to mess with people.  99% of the time, the people that I harass or tease are my friends and it is all good-natured.  I was known for pulling practical jokes when I was a prosecutor and I still like to do them when the opportunity presents itself.

Because of this, I am keenly aware of the fact that I have a very large target on my back for retaliation at any given moment.  It's kind of like surfing on a giant wave, and knowing that you are eventually going to wipe out at some point.  I strive on a daily basis to avoid giving some of my more frequent targets any ammunition to get back at me.  Some days, I'm more successful than others.  

As per usual, for New Year's this year, I decided to try to lose some weight and get into something that could loosely be described as being in shape.  I keep hearing about the "Dad Bod," and have decided that I would be lucky to get to that point with some effort.  I'm pushing 50 years old, so I'm trying to manage my expectations.

I bought a Peloton last year and I've got some free weights in the playroom/home office.  I quit drinking beer at the house and I'm trying to lay off the desserts.  I made it through the first month of the year okay.  None of it is very pretty to watch, and I will not be joining the ranks of people posting "gym photos" to document their exercise progress.  

This morning, I'm working from home with a couple of courts that I need to appear in via Zoom.  My first stop was in the 182nd, where I had a brief conference with Judge Lacayo and the prosecutors before resetting the case.  I texted the prosecutor I was working with for my next case of the day and she said that she needed about five minutes before logging on in the next court.

So, I decided to do a couple of reps with the free weights.  

To be clear, this is not a pretty picture.  The weight isn't particularly much.  My form is probably terrible.  I'm overweight.  The overall picture is not good.  

But dammit, I'm working on it.

I go hit my weights and struggle through a quick set before docket.  I then set the weights down and start to go back my computer . . .

. . . and that's when I see the little green light that indicates my computer's video was on.

My heart rate goes up.  I wasn't sweating before, but I'm starting to now.  

I had opened up the District Clerk's website to look up a reset date for another client, but that wouldn't have slowed down the camera from working.

I was faced with the terrifying idea that I had not completely logged out of the 182nd Zoom Courtroom and just performed my very sad efforts at exercising in front of Judge Lacayo and staff, Casey Little, Missy Wheeler, and all the defendants logged in for courts this morning.

Y'all, I thought I was going to throw up.  Seriously.  I thought my day of reckoning for all of the practical jokes and smart ass comments had finally come to pass.

I rushed back to my computer -- for some reason, moving to the side in an attempt to be off-camera as if the damage wasn't already done -- and closed the clerk's website.  

I was expecting to see the entirety of the 182nd courtroom staring back at me.

But, fortunately, I live to fight my practical joke war with humanity for another day.  I had apparently opened Facetime on my computer at some point, but mercifully, had not actually called somebody.  My ugly exercise routine had remained private.

I was fully prepared to fake my death and move to another country, otherwise.  

The Civil-Prosecutorial Alliance

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

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

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

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

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

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

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

And it was a very firm "No."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is a dangerous pathway to follow.

Episode Six: Return of the Jury -- A One-Act Sci-Fi Play

SCENE:  It is only minutes until midnight on December 31, 2020, and Droids are busily signing off on paperwork on STAR DESTROYER INTAKE under the supervision of CORPORAL LEITNER.  The space hatch doors open and in comes the ADVANCE TEAM led by a beleaguered CO-VICE-ADMIRAL MITCHAM.  LEITNER salutes MITCHAM.

CORPORAL LEITNER:  Vice-Admiral, you're . . . early.

CO-VICE-ADMIRAL MITCHAM:  I decided it would be wise to arrive prior to the Empress to make sure everything was running smoothly.  We cannot afford another embarrassment in front of her.  She's fired so many that we hardly have anyone left.

CORPORAL LEITNER:  Very good, sir.

CO-VICE-ADMIRAL MITCHAM:  What are all of these droids doing?

CORPORAL LEITNER:  They are signing Probable Cause complaints, sir.

CO-VICE-ADMIRAL MITCHAM:  What?!  Didn't the Texas Court of Criminal Appeals just rule that was illegal?

CORPORAL LEITNER:  Yes sir, but we've appealed it to the Louisiana Supreme Court.

CO-VICE-ADMIRAL MITCHAM: What?  Why?  Why would you ask one state to intervene in another state's business?

CORPORAL LEITNER:  Empress Ogg called it "the Ken Paxton Doctrine" and it should work fine.

CO-VICE-ADMIRAL MITCHAM:  I'm going to need the Intake Droids to stop signing those complaints until we have a ruling on that.

CORPORAL LEITNER:  You heard the Co-Vice-Admiral.  Stop signing.  You may go back to watching CNN on your computers.

THE INTAKE DROIDS ALL DROP THEIR PENS IN UNISON AND TURN ON THEIR COMPUTER MONITORS.  THE NEWS BROADCASTS OVER ONE OF THE SPEAKERS.

COMPUTER:  Next, on CNN . . . he was once a respected member of law enforcement before he destroyed his own reputation by selling his integrity to a group of extremists and an authoritarian despot.  Now, he suddenly finds himself out of a job . . . 

CO-VICE-ADMIRAL MITCHAM:  Why is CNN doing a story on Steve Clappart?

COMPUTER:  . . . Coming up, our story on former Attorney General William Barr.

CO-VICE-ADMIRAL MITCHAM:  Oops.  My bad.

THE SPACE HATCH OPENS AND JAR JAR ROGERS AND CAD DANE COME ABOARD.

JAR JAR ROGERS:  Mooey mooey, it's the mostest bestest time of the year!  Empress Ogg is being sworn in for another four years!

CORPORAL LEITNER:  You don't get out much, do you, Jar Jar?

CAD DANE:  We need everyone working hard when Empress arrives.  There will be photo opportunities while the Empress is being sworn in.  Then, to show that she's an Empress of the People, she will answer some calls at intake and take some questions from the media.  

JAR JAR ROGERS:  Mooey mooey, I hope they send IG-88 Oberg!  He's mooey mooey tall!

THE SPACE HATCH OPENS AND EMPRESS KIM OGG ENTERS, FOLLOWED BY CO-VICE ADMIRAL KING.  THEY GREET CO-VICE ADMIRAL MITCHAM AND CORPORAL LEITNER.

EMPRESS OGG:  Greetings!  Greetings on this glorious day!  I hope you are all as happy to be here as I am!

CO-VICE ADMIRAL KING:  Happy New Year, Jim & New Tom Berg.

VICE-ADMIRAL MITCHAM:  Vivian, what brings you up here on New Year's Eve?

CO-VICE ADMIRAL KING:  I'm second in command now.  I've got to get sworn in.

CO-VICE ADMIRAL MITCHAM:  I believe the office flow chart makes us both second in command.

CO-VICE ADMIRAL KING:  That's the old flow chart, NTB.  I got an upgrade in title.  Now, I'm CO-Vice Admiral And Director King.

JAR JAR:  That's a mooey long title!

CO-VICE ADMIRAL AND DIRECTOR KING:  Yes, it is, Jar Jar.  That is why I will be shortening it to an acronym.  From now on, everyone will refer to me as COVAD King.

CO-VICE ADMIRAL MITCHAM:  Um, you sure you want to go with that acronym?

COVAD KING:  Shut up, New Tom Berg.  Nobody asked you.  You're just a vice principal.

CO-VICE ADMIRAL MITCHAM:  Vice Admiral.

COVAD KING:  You don't know me.  I'm Board Certified in Criminal Law.

CO-VICE ADMIRAL MITCHAM:  And I thought that I had heard you had put in an application to be the new U.S. Attorney for the Southern District.

COVAD KING:  So what?  So did the Empress.

EMPRESS OGG:  No I didn't!

CAD BANE:  Again, Empress, if you would please put your hand behind your back when crossing your fingers . . . 

CO-VICE ADMIRAL MITCHAM:  Well, this seems awkward.

EMPRESS OGG:  Enough!  Today is a celebration.  Let's not have petty infighting.  I have won a hard-fought battle against a strong opponent, but the electorate sent a clear message that they loved them some Kimbra!

CO-VICE ADMIRAL MITCHAM:  Well, to be fair, there was some pretty strong anti-Trump backlash that led to literally all Democratic candidates winning in Harris County elections.

EMPRESS OGG:  Silence!!!!  Not even you with your clinical accuracy will bring me down on this day, David.  Let's get down to business.  Somebody swear me in!

COVAD KING:  I'll do it.  Do you, Empress Kimbra Ogg, first of her name, hereby solemnly swear to uphold the Constitution and Laws of the United States, as well as the Constitution and Laws of the State of Texas, so help you God?

EMPRESS OGG:  You betcha.

CAD DANE:  Empress, could you please put your hand behind your back, I'm afraid your crossed fingers might be in the photos.

EMPRESS OGG:  My bad.  Now, do we have any questions from the media?

EVERYONE LOOKS AROUND AWKWARDLY.

CAD DANE:  Um, I think all of the media is probably covering New Year's Eve festivities.

JAR JAR:  Meesa don't think so.  All deesa activities is closed because of da Covid.

CAD DANE:  Would you shut up, you idiot?  Empress, I will write up a summary for a press release for this glorious day!

EMPRESS OGG:  Oh, I would love that, Cad Dane.  I do love your publication that you send me!  It's so wonderful to read members of the press confirming what a great job I'm doing!  Tell me the name of it again!  The Onion?

CO-VICE ADMIRAL MITCHAM (TO DANE):  I thought it was called The Informal.  

CAD DANE:  The Informal has too much bad news about her.  I always send her The Onion.  She thinks it's real.  Keeps her happy.

EMPRESS OGG:  Are there any questions, Cad Dane?

CAD DANE: Um, sure.  Empress Ogg, you've done such an amazing job during your first term as you've been solving Houston's crime problem by indicting Gerald Goines 57 times, all the while working on your own version of the COVID vaccine.  What do you see as your biggest challenge for your second term?

EMPRESS OGG:  What a lovely question!  Well, Cad Dane, obviously the pandemic has had a tremendous effect on the criminal justice system in Harris County, and it has created a backlog of cases.  Backlogs lead to delays, and we ALL know how much defense attorneys love delays.  It gives them more time to tamper with and sometimes murder witnesses against their clients.

CORPORAL LEITNER:  Did she say "murder?"

CO-VICE ADMIRAL MITCHAM: Shhhhh.

THE INTAKE PHONE RINGS AND EMPRESS OGG ANSWERS ON SPEAKERPHONE.

EMPRESS OGG:  You've reached Empress Ogg's District Attorney's Office Intake, brought to you courtesy of Empress Ogg.  You're on the phone with Empress Ogg.

OFFICER ON PHONE:  Um, yeah.  I pulled over a vehicle for speeding, made contact with the driver.  There was an odor of alcohol so I ---

EMPRESS OGG:  Say no more, officer, I accept the charges.  And you may put "Ogg" as the accepting DA.  That's O-G, as in "that Kimbra is an O.G.," with an extra G at the end, because one just isn't enough.

OFFICER ON PHONE:  Did you want to hear the details of the field sobriety tests, ma'am?

EMPRESS OGG:  No need.  I'm 100% certain that it is an extremely strong case and I give you my word that no one in my office will never ever dismiss it under any circumstances.

EMPRESS OGG (TO CAD DANE):  Anyway, as I continue to work on a vaccine, that I like to call "A Little Shot of Kimbra," I have been in daily phone calls with Pfizer, because they want help with their vaccine as well.  In the meantime, the Death Star is becoming overcrowded with more and more prisoners.  Something needs to be done to alleviate the pressure and overcrowding.  We need to move more cases out, but these delay-loving defense attorneys just don't want to play ball.

THE INTAKE PHONE RINGS AGAIN AND OGG ANSWERS.

OFFICER ON THE PHONE:  Yeah, this is Officer --

EMPRESS OGG:  No time to talk.  I accept charges.  The name is Ogg.  O.G. with another G at the end.  Bye, now.

EMPRESS OGG (TO CAD DANE):  As I was saying, there has to be something to stop the massive build-up of incarcerated prisoners in the Death Star, but the Defense Bar just doesn't want that.  This is all their fault.  I'm currently trying to encourage judges to hold trials where the jury can just take our prosecutors' word for what the witnesses would say if they were there.  This alleviates any concerns about social distancing and can speed up getting cases tried.

CO-VICE ADMIRAL MITCHAM:  Um, Empress Ogg, that would violate the Confrontation Clause.

EMPRESS OGG:  The what, now?

CO-VICE ADMIRAL MITCHAM:  Remember how you swore to uphold the Constitution a few minutes ago?

EMPRESS OGG:  Good God, David.  You act like you've never seen crossed fingers before.

THE INTAKE PHONE RINGS AGAIN AND OGG ANSWERS.

EMPRESS OGG:  I accept charges.  Name's Ogg. O to the double G.  Bye, now.

CORPORAL LEITNER:  He didn't even tell you what he was calling about, Empress.

EMPRESS OGG:  Very funny, Jimbo.  I've seen the charges that have been coming out of intake this year.  Are you really trying to insinuate that YOU are doing much more than that?

CO-VICE ADMIRAL MITCHAM:  She does have a point . . . 

EMPRESS OGG:  So anyway, Cad Dane, I look forward to reading your write up.  I look forward to everyone knowing that I'm the most Progressive, Law & Order, Rehabilitative, Lock 'Em Up, anti-Police, pro-Police, Bond Reforming, Bond Revoking Prosecutor that this county has ever seen!  IG-88 Oberg will be sorry that he missed being here tonight!  These next four years are going to just fly by.

SEE PREVIOUSLY:

Episode One:  The Phantom Kimness

Episode Two:  Attack of the Clowns

Episode Three:  Revenge of the Fifth (Amendment)

Episode Four: A Glimmer of Hope

Episode Five: The Empress Strikes Out 

Learning the Difference

When I'm explaining the plea bargain process to my clients, I compare it to someone selling a car.  The prosecutor's position is like that of the car owner, and the strengths and weaknesses of the case are akin to the value of the vehicle.  Maybe the car is flawless and in perfect running condition.  Maybe it is a complete lemon.  The same can be said for a case -- although I've seen many more lemons than flawless cases in my time.

But in both scenarios, it is the car owner/prosecutor who is completely in charge of setting the negotiating price.  If the car/case is flawless and powerful, the buyer/defendant can expect high prices with less flexibility.  If, however, the car or the case is not particularly powerful and has engine problems, one might expect that price to be drastically reduced, or for the car to be totally tossed on the scrap pile.

Whether the case is flawless or an utter disaster, one thing remains the same:  the prosecutor has the sole discretion to set the asking price, and the defense attorney and his or her client is powerless to force them to lower or change it.  We can either accept the deal or walk away from the bargaining table and set it for trial.  

It's just that simple.  It always has been and it always will be.

Much like the auto industry, there are good times and there are bad times.  Hurricanes that destroy fragile and poorly built courthouses may inspire a fire sale on cases to help move inventory, for instance.  Non-violent offenders charged with low-level crimes may find themselves receiving plea bargain offers that are significantly more generous than they might receive under normal conditions.  In some cases, a prosecutor may decide that a contested issue on a motion is probably going to go the defendant's way and just agree to it, rather than go to a full hearing.  

It's just the practical thing to do and prosecutors generally understand that, as do defense attorneys, their clients, and judges.  Otherwise, a total backlog would be expected, wouldn't it?  

As this year has proven, unfortunately, a measly hurricane is nothing compared to a global pandemic when it comes to wreaking havoc on the criminal justice system.   In the twenty-one years since I've been practicing criminal law in Harris County, I've seen Tropical Storm Allison and Hurricanes Ike and Harvey deliver devastating blows to the system, including closing the CJC down for months and months.  Each time, the System found some way to adapt and get back up and running in some form or fashion within a month or two.

The effect of the pandemic on the criminal justice system across the country has made hurricanes and other natural disasters seem like a light sprinkle.  With only a handful of exceptions, all jury trials have ceased since March.  

Take a moment to fully appreciate that.  

In Harris County, Texas, jury trials have come to an (almost) complete stop for nine months and counting in 22 Felony District Courts and 16 County Courts at Law.  Hundreds of cases set for trial have been pushed back to a date that has yet to realistically be determined.  In the meantime, all the cases that would have been set for trial since March have been pushed back with faraway trial settings, all lined up behind those cases that were supposed to have been tried this year.  And while those cases were getting set for trial, new cases have come in every single hour of every single day since then.

The full extent of the backlog is almost impossible to comprehend because no one really has any idea of when things are going to return to any semblance of normal.  Sure, you may have a trial court here and there availing itself of the ill-conceived NRG Arena Jury Plan, but those trials have been few and far between, making no dent in the pile-up of cases that Harris County is now experiencing.

The System is collapsing under its own weight.

At the risk of sounding like I'm blowing smoke up the Judiciary's robes, the judges of Harris County, for the most part, have done all they can to keep things moving.  Although they are routinely blasted for the low (or PR) bonds that they've handed out during this crisis, the judges I've been in front of have worked hard to balance public safety with the Constitutional rights provided to Defendants.  They have made judgment calls on those to release on bond and those who need to stay where they are.  Some of those calls have been wrong and have drawn the criticism of many.  That's unavoidable, and in most instances, the criticisms are unfair.  Too many cases are coming in and not enough are being disposed of.  There simply isn't enough room to keep all the people locked up that the critics would like to see locked up.

But one of the byproducts of so many defendants being out on bond is that they have almost no incentive to enter into a plea bargain -- especially if that plea bargain offer involves further incarceration.  

It's a hell of a conundrum if you're a prosecutor.  A prosecutor may be evaluating a case where a defendant has a lengthy criminal history that includes a trip or two (or more) to the Texas Department of Criminal Justice-Institutional Division.  They may have a difficult time bringing themselves to make a plea bargain that doesn't involve another trip to TDCJ.  

Under normal circumstances, that would be fairly easy to resolve.  Hypothetically, let's say that a defendant is facing a punishment range of 25 years to Life on a case because of his or her prior criminal history.  They are sitting in the Harris County Jail, not bonding out and the prosecutor offers them five or ten years. 

Assuming the case-in-chief is strong against the Defendant, that would actually be a bargain.

However, if you are out on bond, enjoying your freedom, the idea of checking back into TDCJ for a 5 or 10 spot probably doesn't sound like much fun, does it?  As a matter of fact, if you are a defendant who is out on bond, there really isn't much incentive to take that offer at all, is there?  Especially if the alternative is setting the case for trial on a date that is to be determined so far down the road that your trial prosecutor might currently still be in law school.

In short, if a defendant is out on bond for his or her case, it's his or her market when it comes to deciding whether or not a plea offer from a prosecutor is worth taking.

Under those circumstances, one might think that the prosecutors would come to the realization that it is time to entirely rethink the plea bargaining process.  Given the breadth and scope of COVID and the current backlog of jury trials, that should be motivating prosecutors to offer deals that make Hurricane Plea Bargains seem Draconian.  

Let's pause real quickly here before my friend Joe Gamaldi's head explodes at what I'm saying.

As I've mentioned several times on this blog, I consider the most profound moment of my legal career to have come during a PSI hearing in front of Judge Caprice Cosper.  It was a tragic case I was trying against my friend Sam Cammack where a couple had left their children unattended for an hour because their work shifts overlapped.  A fire broke out and an infant died.  The pictures were horrifying.  I wanted pen time.  Sam, very eloquently, argued for probation.

As Judge Cosper gave probation, she sternly told me, "Mr. Newman, in this business there are those whom we are scared of and those that we are mad at.  It would behoove you to learn the difference."

I bring that story up now, because it couldn't be a more relevant guide than in this moment.

Under pandemic conditions, prosecutors have got to realize that it is time to focus resources on those offenders that we are actually scared of, and set aside our moral indignation towards scofflaws for the time being.  

Sadly, that hasn't been the case in Harris County.

As newly re-elected District Attorney, Kim Ogg is still experiencing her identity crisis between the world's most progressive prosecutor or the tough-on-crime prosecutor.  The result has been prosecutors fearful of offering a controversial plea bargain that might make Kim Ogg look bad and subsequently incur her wrath.  Keep in mind, all personnel must have their contracts renewed going into Ogg's second term and nobody wants to lose their jobs.  Many prosecutors are making their recommendations as if Wayne Dolcefino was sitting in the audience.

Historically, I've tried to refrain from using this blog to put prosecutors on blast for something that I disagreed with on a case, but damn it gets tempting with some of the absolutely ridiculous offers that have come out of the D.A.'s Office lately.  I've literally set cases for trial based on whether or not a person should be on one probation or two (at the same time).  I've gotten in yelling matches over .1 gram of Ecstacy.  I've had to go to full-blown hearings on issues that should have been agreed upon as clearly settled matters of law.  I've dealt with cases that should have been dismissed on their first setting, only to be told that I can submit a letter to get it No Billed by the Grand Jury.  

I'm not alone in this thought process.  My friend and fellow defense attorney Brian Roberts detailed his frustrations with HCDA prosecutors in this excellent blog post in September.  Our brethren and sistren in the Defense Bar all feel the same way.  And, spoiler alert, so do a lot of the judiciary.

Too many prosecutors are holding onto cases like a group of compulsive hoarders.

Obviously, this doesn't apply to all of the prosecutors.  There are several that are still reasonable and knowledgable and don't consider themselves to be the Ultimate Arbiters of Justice.  They will recognize the cases that need to be dismissed and the cases that should be reduced or offered small punishments.  They are willing to face any internal consequences that they might have to suffer because they aren't afraid to do the right thing.

They are appreciated far more than they will ever know.

I have no doubt that I will get pushback on this post from those who will characterize me as just a liberal-ass defense attorney trying to let all those scumbag clients out.  But it's time to be practical about what is happening.  If the court system is clogged with non-violent offenses, it's going to be blocking the path of all the cases behind them.  The non-violent cases can't just be put on the backburner in perpetuity. 

Victim crimes will stack up behind them.  Victims and their families will have to wait for their days in court far longer than they ever have in the past.  And to what end?  So that somebody with a couple of Ecstacy pills learns the hard way that we should Just Say No to drugs?  

Across every walk of life, our planet has had to drastically adapt to conditions under COVID.  It defies all expectations to think that the Criminal Justice System wouldn't be called to do the same.  

It can be done without losing sight of the Principles of Justice.

It can be done by distinguishing between those we are mad at and those we are scared of.

I learned that lesson from a very wise Judge, and it has made all the difference.

The Idealism of the Legal Twitterverse

 Oh, dear Lord.  I've hauled off and pissed off the Twitterverse.

Not in the normal way, like when I'm fully intending on pissing off people.  I did this one on accident.

Yesterday was a frustrating day in general.  We had a family emergency that required my wife to go out of town unexpectedly and I was trying to do Zoom hearings while keeping my 6-year-old and my 14-year-old on task with their online classes.  At one point, while Zooming into a court and setting a case for trial, the judge mentioned that I seemed relaxed and comfortable.  It was then that I looked down and realized I hadn't changed into a collared shirt for my Zoom hearings (as I normally do).

Instead, I was wearing a Drive-By Truckers concert t-shirt that read "Hell No, I Ain't Happy." I changed and went outside for my next Zoom setting because I didn't want to disturb the kids' classes.  While sitting on my front porch, a lizard ran up my leg.  It was just one of those days where there was a lot going on and nothing seemed to be going right.

In the middle of all the chaos, a former client that I had represented earlier in the year called my answering service and left a message that he needed me to find his probation officer's phone number because he'd lost his phone (and thus, the number).  A little bit later, he called again wanting to know why I hadn't called with the number yet.

Feeling frustrated, I took to Twitter with the following observations:

Now, this didn't exactly seem to be all that damning of a message, in my opinion.  

The Twitterverse disagreed.  I mean they REALLY disagreed.

I got bombarded by attorneys from around the country who were just incensed -- incensed, I tell you -- that I would make mention of the fact that I found a former client's inability to find a phone number without his lawyer to be a "more frustrating element of the job."  The crowd, which as near as I can tell is comprised largely of public defenders from around the country, have gleaned from this Twitter posting that 1) I hate all of my clients and 2) that I should quit my job posthaste.  The true "most frustrating" thing should be nothing less than an ongoing war against the oppressive, lying, cheating, 4th Amendment-eroding prosecutors, who are constantly seeking to imprison the masses.

I replied to a couple of these young and idealistic folks at first but eventually realized this was a futile effort.  So, I decided that I would respond with this post as a group response to those attorneys who are so helpfully trying to help me reevaluate my career path.

So, let me be clear with this message to my newest Twitter fans:

Grow. The. Hell. Up.

The job of a criminal defense attorney is frustrating on a daily basis at times, and if you haven't experienced that then you aren't doing it right.  

It doesn't matter if you're representing Charles Manson or a Santa Claus.  Clients are human and humans tend to frustrate each other from time to time without meaning to.  

I mean, hell, look at how much I seem to be frustrating Twitter.

I can honestly say that on the whole, the vast majority of the people I've represented over the years have been great to work with. I've represented some really nice people who were charged with some really horrible things.  I've also represented some really difficult people charged with really minor things.  Pretending that every last client I've ever represented has been nothing less than an utter delight is as silly as it is disingenuous.  

If you believe that every client you have ever represented has been nothing less than an angelic, non-frustrating victim of an unjust system, then you are either: 1) very lucky;  2) very naive; or 3) very new to this job.  If your unbridled optimism about your job is because of option 2 or 3 on that list, you are going to get run over by a prosecutor, a judge, or a jury who doesn't share your opinion.

To my new fanbase on Twitter, the trick to being a defense attorney isn't never being annoyed with your clients -- it's working your ass off for them no matter how annoyed you find yourself.  

Because believe me, in this job you're going to be annoyed.  

You're going to be annoyed by that client who has ignored and failed to return every one of your phone calls for a month but calls you at 4 a.m. to ask if he's got court that morning.

You're going to be annoyed by that client who has a completely winnable case right up until the moment he just doesn't show up for court and draws a completely unwinnable bond jumping case.

You're going to be annoyed by that client who files a grievance against you because you didn't get him a probation offer on his third aggravated robbery.

You are going to be annoyed by that client who tells you that you never once told him that he couldn't smoke meth while on bond.

You are going to be annoyed by the client who accuses you of "not working for me" or "working for the prosecutor" every time you tell them something they don't want to hear.

Every time some completely unnecessary obstacle to success comes up, you are going to be annoyed.

And guess what.

That's okay.

Because sometimes you can use those moments of annoyance to actually tell them that you're frustrated with them.  You can even build from that frustration and tell them that they need to learn to be responsible for some things that their lawyer wasn't meant to handle -- like say, being a telephone directory.  Tell them that you expect more out of them because the prosecutor, the probation officer, the judge, the jury, their family, their boss, their teachers, or the world is going to expect more of them.

It has been my experience that when I've done that, most have risen to the occasion.  Despite the angry protestations of the Twitterverse, lawyers cannot actually do clients' probation for them.

So, just for some background (not that I owe it to the Twitterverse), that client that I was annoyed with yesterday was a former client.  He's an older guy that I busted my ass to get out on a PR bond because he was at higher risk for COVID in the jail.  I also busted my ass getting him a deferred adjudication despite his priors, and a misdemeanor deferred at that.  We dealt with a lot of bond issues together before that happened and I told him that he was both grumpy and needy, and he laughed.  Despite being frustrated yesterday, I still called him back and told him to call the court to get the information he needed, because I didn't know it and I wouldn't be able to get to it that day.  He thanked me and we moved on.

Despite the Twitterverse's assumptions, I actually like him quite a bit.  He's got some piss and vinegar in him that is oddly endearing.

But yesterday, he was frustrating me.  Shit happens.

When I first meet a client, one of the first things that I tell him or her is that I will never sugarcoat anything.  I'll sometimes give them a choice of whether they want me to tell them what they want to hear or tell them what they really need to know.  I have yet to have the client who picked the former over the latter.  The same, apparently, cannot be said for Twitter.

In an odd moment of karmic coincidence, I got a message this morning on Facebook from a different former client.  He was a guy I represented a couple of years ago on a couple of different things and at the time, he did more than his fair share of frustrating me too.  We went round and round on some of his responsibilities and expectations.  But I worked my ass off on his case like I do on all my clients' cases, whether they are frustrating or not, and ultimately, it worked out pretty well for him.

His message this morning told me that he'd gotten his shit together, stayed out of trouble and that on Monday, he was getting to see his kid again for the first time in two years.

Sometimes, that frustration you feel and share actually leads to somebody living up to the expectations that they should be living up to.  There is nothing more uplifting than watching a client pull out of a tailspin.

Moments like that happen more often than you would think.

When they do, you are reminded that the most frustrating job in the world is, more often than not, the best one.