Monday, July 27, 2015

The Houston Fire Department is Awesome

I was walking to my car from my office this morning when I came across two people standing over a person laying on the sidewalk.  We were at the intersection of Prairie and Fannin, which is a fairly crowded area, yet only two people seemed to have found a person sprawled out on the ground to be a reason to stop.

The man on the ground appeared to be in his mid-twenties.  He was laying on his right side, and in the fetal position.  His eyes were open, but not moving nor blinking.  Other than the fact that his rib cage was moving ever so slightly, he appeared to be quite dead.

When I walked up, one of the two people who had stopped was just getting off the phone.

"Did you call 911?"  I asked.

"Yes," he said.  "I was walking right behind him when he just went down."

I tried shaking the guy by the shoulder.  He didn't react in the slightest.  He was wearing a medical bracelet of some sort.  I looked at it, but it didn't have a name on it.  I shook the guy by the shoulder again, and he didn't move.  I could tell by his appearance that he was homeless.

I moved my finger in front of his eyes, and there was nothing.

I mean nothing.

I was glad that he was still breathing, and also (embarrassingly) relieved that I didn't know CPR.  If he hadn't been breathing, I would have been in a real moral quandary over performing CPR on the guy.  As it stood, I had pretty much used up all of my medical training.

Within a few minutes, a fire engine pulled up with a crew of three men and one woman.  They reacted swiftly and calmly.

"Oh," said one of them.  "It's him again."

"You know him?" I asked.

"Yep," he replied.  "See the bracelet?"

As one of them began unpacking their equipment, the Captain leaned over the downed man and tried to get his attention.

"Hey," he said.

I'm not trained in CPR, but I think I also said "Hey" when I was trying to wake the guy up, too.

The Captain then made a fist and started rubbing it on the downed man's chest.

The downed man started moving around like my 20 month old when I tickle him.  I'm pretty sure that he was growling, too.

They put an oxygen mask on the guy and the Captain kept doing that thing on his chest every time the man seemed to slip back out of consciousness.  Soon, they had him sitting up.

I asked another one of the firemen if I needed to stick around for any reason -- I was on my way to the jail to visit one of my misunderstood clients.  He told me "nah" and I left as the ambulance was arriving.

It wasn't that dramatic of a moment, I guess.  Fire Fighters rush into burning buildings and do heroic things on a much more epic scale quite frequently.

But seeing the confident and competent way those three men and one woman handled the situation impressed the hell out of me.

Sometimes it's the small things that serve as nice reminders that there are people out there to to help pick you up when you fall down.

No matter who you are.

Monday, July 20, 2015

That Awkward Moment . . .

. . . when you are complimenting yourself on your own blog post and forget to change your on-screen identity . . .

Thursday, July 16, 2015

The Flip Side of the David Temple Findings

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

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

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

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

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

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

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

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

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

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

Yep, you read that right.

There isn't some new confession to the murder of Belinda Temple.  There's the confession of shooting a dog that Clappart and Denholm would like to extrapolate into a Capital Murder warrant.  There are no fingerprints.  No DNA.  No confession.  Yet a licensed peace office and a former licensed peace officer would like a judge to arrest someone for Capital Murder because he stated that he once shot a dog.
Now, apparently the fact that I wrote that blog post back in 2012 really offended Ms. Gotro.  She took to the Twitter airwaves with this:

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

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

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

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

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

"So I didn't know if somebody set me up to put something in Murray's blog or something else again, so I said "Wait a minute, Steve," and I believe it was right then and there when he in the office, I called -- I believe I called DeGuerin or I called DeGuerin's office and said, "I have just been told that there's evidence that has to be Brady evidence that exists in the Temple case.  I want you and whomever you want to be with you to come to the DA's office so we can sit down and as they line it out to me, they're lining it out to you at the same time, so nobody can ever say that I've kept anything from you that's Brady."
Um, okay.  So apparently, my blogging skills back in the day were so powerful that whenever someone spoke to Jim Leitner, he assumed it was some kind of trick that I had initiated.  Setting aside how hysterical that is, am I the only person here who finds it a little unusual that the second Clappart says a word to Leitner about a case (that Leitner just so happens to coincidentally have in his office), that the 1st Assistant of the Harris County District Attorney's Office stops EVERYTHING to call Dick DeGuerin?

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

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

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

"I have read it and you asked me to look at that, and in my own honest opinion, if I had been a judge, I would have probably signed the warrant."[p 110 & 111]
Just so we are clear here, Leitner has just now admitted that if Clappart had brought him a warrant saying that he heard from a dude who heard it from another dude that a dude shot a dog, he would sign a warrant for CAPITAL MURDER, despite the fact that somebody else was already sitting in prison for that very same murder.

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

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

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

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

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

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

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

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

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

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

That's just not how the System works.

Monday, July 13, 2015

Kelly Siegler and the Temple Decision

Over the past several days, I have been contacted many times by many people -- on the blog and off the blog -- wanting to know when I was going to write something about Kelly Siegler and the David Temple decision.  I have steadfastly declined because I am entirely too biased to write anything.

Although the Criminal Justice world is currently bashing Kelly, she remains one of the best friends I've ever had in my life.  She is an altruistic friend whom I've known for eighteen years.  She's been around for some of the worst times and best times of my life.  She is truly like the big sister that I never had.

If there is anyone who thinks that I would ever turn my back on a friend who has meant that much to me and my family, they clearly should reevaluate what the meaning of friendship is.

For those of us who know and love Kelly, regardless of what anyone else is saying, it is painful to listen to the things being said about her.

I'm sure that the mere fact that I dare to say anything positive about my friend will unleash a storm of additional outrage from those who were plenty outraged to begin with.   I'm sure that my loyalty to the defense attorney profession will be called into question by those same people -- they tend to do that when they don't agree with me.

But Kelly Siegler is one of the best people I know, and nothing that her critics say about her will ever change that in my opinion.

Tuesday, July 7, 2015

A New Blogging Opportunity

I was recently invited by my friend, New York attorney and blogger, Scott Greenfield, to become a contributing blogger to a new project he has begun called Fault Lines.  The project incorporates several different attorneys from around the country who write about trending topics and news stories in the Criminal Justice arena.  He invited me because I'm semi-literate and can hopefully draw on my experiences from my prosecutor days for a different type of perspective.

Followers of this blog know that I don't normally comment on national news stories here, sticking to what I know best: Harris County Criminal Justice.

However, the opportunity to work with Scott on a project is too good to pass up.  He is the preeminent criminal law blogger and I'm honored to be invited.

And I'm not just saying that because he bought me a beer once at Char Bar.

So, here's my first shot at it.  I hope you'll contribute to the discussion over there.

Wednesday, June 17, 2015

Hard Core, Right Wing Idiocy

As most of you know by now, former Burleson County District Attorney Charles Sebesta was disbarred last week for hiding exculpatory evidence in his Capital Murder prosecution of Anthony Graves.  For those unfamiliar with this sad story, Anthony Graves spent 18 years on Death Row after being prosecuted by Sebesta.  The 5th Circuit overturned his conviction because Sebesta withheld exculpatory evidence and Kelly Siegler was ultimately appointed as the Special Prosecutor to retry Graves.  After reviewing the evidence, Kelly publicly stated that Graves was an innocent man and dismissed the case against him.

The story of Anthony's case is well documented.  It was covered by CBS's 48 Hours and was the subject of several articles (see here and here) by Texas Monthly's Pamela Colloff.  Sebesta responded to his earned public bashing by creating his own website, where he simultaneously defended himself while blasting Kelly Siegler and insisting upon Anthony Graves' guilt.  In April of 2011, I posted this article on him in response to his website.  Sebesta quickly became the poster child for the dirty, evidence-hiding prosecutor.  Ultimately, I think Charles Manson had more supporters than Sebesta.

His disbarment last week was something that was regarded as a small but very righteous event that everyone could support.


Well, apparently not everybody.

On Tuesday, it was brought to my attention that my article on Sebesta had been cited in this article by columnist Rachel Alexander of the conservative website  Just the title of the article "The Left Disbars Another Conservative Prosecutor" was enough to make me do a double take.  The idea of me being labeled as a leftist member of the media gave me a case of the giggles.  Her statement,  "Most accounts don't attempt to say that Graves was innocent," was just ridiculous.

So, I took to the Twitterverse to engage Ms. Alexander in conversation.  Hilarity ensued.

Seeing that Ms. Alexander's response was clearly well-thought out and not at all silly, I decided that Pamela Colloff might enjoy Ms. Alexander's musings.

And then we started really arguing.

The argument went from bad to worse.

So, um, she left out the fact that the Special Prosecutor (who was arguably one of Texas' most aggressive prosecutors) said that Graves was innocent because she "didn't think it was highly relevant" and then follows it with "We all know she really didn't think that."

Yes, because we all know that Kelly Siegler is constantly saying things that she doesn't mean . . .

At this point, I know I should have disengaged.  Ms. Alexander was clearly immune to logic.  But them Pamela Colloff joined in and it was too entertaining to walk away.  

And then Pamela delivered the message that I should have just realized before even engaging with Ms. Alexander.

I had actually started off the Twitter-dialogue with Ms. Alexander in hopes of showing her what Charles Sebesta really was and pointing out to her that even the most conservative ideology wouldn't support what he did.  Clearly, I failed in that, but it did make for an entertaining afternoon.

Saturday, June 6, 2015

Sharing a Little History

I was 17 years old and a Junior at Bryan High School in November of 1989.  I was a pretty boring kid, for the most part.  I didn't drink.  I didn't smoke.  I didn't do drugs.  I usually came home long before my curfew.  I guess it was due to that same boringness that my parents signed off on letting me do the biggest adventure of my high school career.

On Wednesday, November 8th of 1989, my friends Marshal Crenshaw, Chris Wiseman, Brandon Pillans, Andy Winn, Brandon Crowe and I all borrowed Mrs. Crenshaw's mini-van and were allowed to drive from small-town Bryan, Texas to the big city of Houston to see the Rolling Stones play the Astrodome as part of their Steel Wheels concert tour.  Somehow, even though I was far from a good driver and I had never driven in Houston, I ended up being selected as driver.  Let's just say that was probably where my longstanding hatred of Houston METRO buses was born.

Because I was such a terrible driver and had no idea where I was going (in the days before Apple Maps and Waze), we got there a little later than anticipated, and the opening act of Living Colour had already begun.  Luckily, we got there in time to hear them play Cult of Personality and Glamour Boys as well as a lot of other songs that were pretty awesome, too.  They rocked it out on a great performance before leaving the stage.

It seemed like the time after the opening act and when they finally dimmed the lights took forever, but finally, the Astrodome went dark.  An instrumental build-up of Continental Drift started playing in the background, getting louder and louder. Then it abruptly stopped and the stage exploded into fireworks as Keith Richards started playing the first chords of Start Me Up and the Stones all came running onto the stage.

It was the coolest thing I had ever seen in my life.  It will probably shock you to hear that not that many acts came through Bryan/College Station.  My illustrious career of concert attendance had begun with seeing Toto at G. Rollie White Coliseum on the A & M Campus.  I had never been outside of Brazos County to see a concert -- certainly not one of the magnitude of the Stones.  The next two hours were amazing as they cranked through song after song with pyrotechnics and special effects.  I remember two giant sized inflatable women flanking either side of the stage during Honky Tonk Women.   To paraphrase my 9-year-old, what happened after that "wasn't appropriate."

The Stones wrapped up with Jumping Jack Flash and Satisfaction and we all headed back to the car -- which we had lost.  In the Astrodome parking lot.  In Houston.  At midnight.  On a school night.

We pretty much had to wait for almost everyone to leave before one of us finally found Mrs. Crenshaw's non-descript mini-van.  We all piled into it -- for some reason, nobody wanted me to be the driver anymore -- and headed back for the two hour drive to Bryan.  A radio station replayed the play list of the concert as we drove back and we listened to it for as long as the car radio could pick up a Houston station.  At some point, I fell asleep and my body slid into the footwell as if I were in crash position.  We got home around 2 a.m. and all went to our respective homes.

I think if we were honest, all six of us would have admitted that we didn't really know that much about the Rolling Stones when we started out on our adventure.  We knew the idea of being able to casually tell our classmates "Yeah, we went down to Houston and caught the Stones concert last night," sounded really cool.  Quite frankly, I probably only recognized half the songs that they played that night.

But, man, that next day, we were all wearing our concert t-shirts to school and acting like we were founding members of the World's Greatest Rock and Roll Band.

If you know me at all, you know that when I get on a topic, I get obsessed, and for the years to come, I was obsessed with the Stones.  I bought all of their music, read up on the history of the band, went to their concerts any time they crossed into Texas.  I've gone to see them with friends, girlfriends, and even my mom and dad.  As a side note, it is really awkward to watch the stage production of Honky Tonk Woman when you are sitting next to your mother.

I've read Keith Richards' autobiography, Life and enjoyed it very much, because I loved Keith's enthusiasm for the origins of rock and roll music.  Bruce Springsteen is the same way.  Quite frankly, I think that the way I feel about the Stones is the way Keith felt about all of the old Blues musicians and early 1950s singers and bands.  I love that music -- from Buddy Holly to the Beatles, to the Band to Springsteen to the Stones, and all of those bands that kids today will look at as a history lesson rather than a playlist.

Yes, I just used the phrase "kids today."  Now get off of my lawn.

When my first son was born in 2005, he heard a lot more Beatles music than nursery rhymes growing up.  His first phrases started with "It's one for the money, two for the show . . ."  I taught him the names of all the Beatles and all the Stones and he could recite them when called upon (a party trick that impressed my current wife the first time she met 3 year old Luke.)  I would do my best Keith Richards' impression and ask him, "What are you doing, Mick?" Having been born right around the time that Hurricanes Katrina and Rita hit the Gulf Coast, my son will tell you very matter-of-factly that he, too, was born in a Crossfire Hurricane.

I suffered many an eye roll from his mother.

As he got older, we would listen to the songs and how they were written.  I developed a three act "bucket list" of bands that I wanted him to see before the groups stopped playing together on the road.

On November 14, 2012, I took him to see Paul McCartney at Minute Maid Park as he played all the Beatles songs.  He loved every minute of it.

On May 6, 2014, he saw the second band on the list when we went to see Bruce Springsteen and the E Street Band play the Cynthia Woods Mitchell Pavilion in the Woodlands.  He loved it and we got this close to Bruce when he first drove into the building.

And, finally, in a couple of hours, we are going to load into my car and take a father/son road trip to Arlington to see the Rolling Stones play AT & T Stadium.

I'm so ecstatic that I can't see straight.  After playing together for 51 years, I was starting to get worried that the Stones might not actually come back to Texas.  The first time I saw them play, the band members were all in their mid-40s -- now I'm the one in my mid-40s.

Come Monday morning, my 9 year old boy will get to go back to his summer day camp with his Rolling Stones t-shirt, acting like a founding member of the band.  Keith Richards' guitar intros on Satisfaction, Jumping Jack Flash, and the very "inappropriate" Honky Tonk Woman will be things he heard live.  And "moves like Jagger" will be something that he actually witnessed with his own eyes.   My dad told me that when he was younger, he got to see Elvis play, which I always thought was awesome.  When my son is older, he will be able to say that he saw the Stones.

I can't wait to be standing right next to my son as he sees true Rock and Roll history.  I love seeing these bands play through his eyes.  I hope some day he will love the music as much as I do and feel the sense of history and emotion and excitement of the Rolling Stones as they play Texas one more time.

Wednesday, May 27, 2015

The Joys of Being a County Employee

As noted in my last post, the Harris County Criminal Justice Center was shut closed on both Tuesday and today (Wednesday) of this week in the wake of heavy rains that hit late Monday night.  As per usual, our beloved CJC building failed to withstand the devastating power of nature.  The garage flooded.  The elevators stopped running.  The tunnels flooded.  They were on reserve power.

Harris County employees were told not to come into work. They were then told that they had to take either Comp or Vacation time, instead.

For the lawyers in the building (whether they be prosecutors or public defenders), this wasn't really that big of an inconvenience.  Most of them have plenty of comp time from the hours they work before eight, after five, or on the weekends.   They could also probably get away with doing some trial prep at home or doing some field investigations, if they were feeling ambitious.

For support personnel, however, this wasn't really an option.  Although investigators may earn some amount of comp time in the course of their job, more often than not, it isn't a large amount that accumulates.  Administrative Assistants, however, are the ones who really get screwed.  They work straight eight hour shifts and never earn comp time.

So, basically, Administrative Assistants have no choice but to take their vacation hours, or just go unpaid.  This isn't a new thing.  It happened when we were all ordered out of the building in the wake of Hurricane Ike.  During that particular natural disaster, there was raw sewage backing up into the CJC and we were forbidden to be there.

But we still had to take vacation or comp time.

So, basically, Harris County builds a building that can't withstand a rainstorm and the employees are having to pay the price.  In an ideal world, the geniuses that built that piece of crap building would have to reimburse the county for the cost of an employee's salary on the day said employee couldn't go into the building.  Unfortunately, under county rules, shit runs downhill.  The Powers that Be have the authority to ban employees from working, but they don't get held accountable for failing to provide a safe work environment for them.  The employees have to give away their carefully accumulated (and usually already-planned-for) vacation time.

I can't imagine that ever working in the private sector.

Tuesday, May 26, 2015

Shades of Allison

I hope everyone weathered last night's crazy storm okay.  I don't know about y'all, but I was having some serious flashbacks to June 2001 and Tropical Storm Allison -- only this time I have flood insurance!

Judge Kristin Guiney is reporting that the CJC is closed today, per the Administrative Judge.  The building is running on reserve power and apparently the basement garage is flooded.

It doesn't sound quite as bad as Tropical Storm Allison, which forced the entire D.A.'s Office and all of the courts to relocate from the CJC for the better part of a year, but it doesn't sound good, either.

Saturday, May 16, 2015

Our New Sheriff

Unless you pay absolutely no attention to Harris County politics, you are probably well aware that (now) former-Harris County Sheriff, Adrian Garcia resigned his position to run for Mayor of the City of Houston.  The move had been rumored for months, but since Garcia was required to resign before he could officially announce, he held off on making it official for some time.

What had also been rumored for months was that Harris County Commissioners were planning on appointing Harris County Constable for Precinct Four, Ron Hickman, to fulfill Sheriff Garcia's unexpired term.  That was a smart move -- Hickman is very politically active in the Republican Party and has a good reputation.  He's also a great campaigner.

Sheriff Hickman wasted no time in getting to work on cleaning up some of the messes created under the Garcia Administration -- focusing largely on problems that consistently plague the Harris County Jail.  Sheriff Hickman also set a goal for getting rid of some of his unnecessary administrative positions in favor of more deputies out on the streets.  One of those unnecessary administrative positions has apparently been the job of former-Harris County First Assistant Jim Leitner.

I've heard from several reliable sources this morning that Leitner was terminated from HCSO by the incoming administration.  Although Leitner and I aren't big fans of each other, I can empathize.  It really sucks to lose your job because of politics, doesn't it?  As of this writing, it does appear that Sheriff Hickman will be keeping Clint Greenwood, for some reason.

The path that Leitner takes from here will be interesting.  After leaving the Lykos Administration in 2008, he tried going back to the Defense Bar for a little bit before going to the Sheriff's Office.  He got started on a lot of appointed cases that he didn't finish.

The mayoral election is on November 3rd of this year.  Given that everybody and their dog are running for mayor, it will almost certainly go to a runoff (scheduled for December 12, if necessary).  If Adrian Garcia loses the election, it is rumored that he fully intends to try to reclaim the Sheriff's Office in 2016.  If that is ultimately what happens, Jim wouldn't be able to land himself another political hire with the Sheriff's Office until January 1, 2017 at the earliest.

So, does Jim return to the Land of Burned Bridges within the CJC as a defense attorney where he can deal with prosecutors (who detest him) on a daily basis?  Does he hope and pray that Garcia wins mayor and appoints him to be the King's Hand?  Will he go to work as a guest blogger over at Big Jolly's website?  Will he get to work early on Kim Ogg's inevitable 2016 campaign for District Attorney?  Does he get a job as in-house counsel at Don Hooper's energy trading firm, Kramerica Industries?

It will be interesting to see what happens next.

Friday, May 1, 2015

Uncle Pete

My great-uncle, Pete Newman, passed away last week at the age of 86.  He was the youngest brother of my paternal grandfather, Louis Newman.  I didn't know Uncle Pete all that well, but I always enjoyed talking to him whenever I got the chance, because he was wildly entertaining.  The last time I saw him was a couple of years ago, at his brother, Jim's, funeral.  He was sitting on his walker, smoking a cigarette and talking about grabbing a beer.

The reason I'm writing this post is because I thought his obituary in the local paper was pretty entertaining, as well.  So I thought I would just pass it along.

He was a damn good man.

Monday, April 20, 2015

Congratulations, Ms. Falkenberg

Congratulations to my friend, Lisa Falkenberg, for winning the freaking Pulitzer Prize for her series of articles on the Harris County Grand Jury system and the Alfred Dewayne Brown case.

Lisa and I didn't exactly get off to the best start.  She pointed out to me the first time that I met her in person that I had once referred to her as Pippi Longstocking in an early blog post.  Um, oops.

I don't always agree with her columns.  Hell, I usually don't agree with her columns.

But Lisa's columns always make me think and take stock of philosophical positions that I held in the past, philosophical positions I hold in the present, and those I may hold in the future.

In short, regardless of whether I agree with her or not, the way Lisa writes makes me think.  And that's the trademark of an excellent writer.

I'm very glad to see the folks over at Pulitzer recognize her talent.

Thursday, March 5, 2015

Jamie Brooks

I was very saddened to learn this morning about the passing of my friend, Jamie Brooks.

Jamie was a fixture of the Harris County Defense Bar and a friend that I had known since I first started work at the D.A.'s Office in 1999.  He was one of the nicest people and truest friends that one could have at the Criminal Justice Center.

Jamie was generally a very soft-spoken attorney during docket, but he was also a strong advocate who was not afraid to go to trial and fight for his clients.  More importantly, Jamie was one of the first people to volunteer to lend a hand when a colleague needed help.  Any time a lawyer fell ill or passed away, you could always count on Jamie to be there to do whatever he could to assist.

Jamie was a good lawyer, a good friend, and a good person.  I am terribly sad to lose him.

My thoughts and prayers go out to his family.

Saturday, February 21, 2015

Letting Go

"I believe your client, but you are still going to need to present something to the Grand Jury on it."
"I'll give you a probation on a lesser charge, but your guy is going to need to plead on all three cases.  I've been told that my court has too many dismissals."
"I don't know why the Grand Jury indicted your client, but I can't dismiss it unless the co-defendant pleads to something."
"I would never dismiss that case.  It's a First Degree!"
What do the above four phrases have in common?

They have all been said to me by a prosecutor as justification for not dismissing a case in the past year.

Now, before I go too much further down the road of angering every prosecutor who reads this blog, let me be clear:  Prosecutors and Defense Attorney disagree every freaking day over whether or not a case should be dismissed.  As Defense Attorneys, we are obligated to seek out the best resolution for our clients and we wouldn't be doing our jobs if we did not (at least) see if we can talk the prosecutor into a dismissal.

As you can imagine, the strength of a Defense Attorney's argument for dismissal can vary drastically from case to case.  Many of these "dismissal discussions" are very brief and the vast majority of them obviously don't end in dismissal.

The issue that I have here is absolutely NOT with the prosecutor who doesn't agree with my interpretation of the evidence.  My argument is NOT with the prosecutor who finds their witness' statements to be more credible than I do or the evidence more compelling than I see it.  I get that.  I don't always agree with it, but I get that.

My issue is with the prosecutor who will actually state to me that the reason they won't let go of a case is because of something that has absolutely nothing to do with the facts of that case.

Statistics should never be a consideration in whether or not a prosecutor dismisses a case.   I firmly believe that nothing adversely affects the Criminal Justice System more than statistics -- i.e. the police get recognized for how many felony arrests they make, so why not go hunt down jaywalkers who might be carrying crack pipes with residue?  The same applies to prosecutors when they start being judged on how many dismissals they may or may not have signed off on.

Statistics are for politicians.  Not prosecutors.

The standard of whether or not a prosecutor should dismiss a case is simple:  if you don't believe it can be proven beyond a reasonable doubt, or (God forbid) you believe the person is (gasp!) factually innocent, you shouldn't be freaking prosecuting it.  Period.  Take all the time you need to thoroughly investigate the facts of the case, but if you can't prove it beyond a Reasonable Doubt, you need to be signing a dismissal.

When I was chief of the 339th District Court, I was observing Brent Mayr try an Aggravated Robbery case (which is a First Degree charge).  For those of you who don't know Brent, he's a fantastic trial lawyer and he's also very competitive.  In the middle of his trial, a witness testified to something that caused Brent to have hesitation over whether or not the Defendant was guilty.  I was his supervisor, so he came to me because he wanted to dismiss it in the middle of trial.

"I think he probably did it," Brent told me, "but I don't believe that beyond a Reasonable Doubt anymore."

So, we dismissed it immediately.  Nobody ever questioned either my judgment or Brent's.  A dismissal in the middle of a trial isn't exactly a positive statistic for a prosecutor's record, but that didn't dissuade him from doing the right thing.  I was proud of Brent.

Dismissals on First Degree cases do still happen, obviously.  I am still very appreciative of when Lance Long and Greg Houlton dismissed this murder case after carefully reviewing the evidence.

My point here is that a dismissal should ALWAYS happen based on the evidence and not ulterior concerns.  When I was a prosecutor, nothing offended me more than hearing a defense attorney say something like "all prosecutors care about is getting their conviction."  I didn't believe that then and I don't believe that now.

But statements like the four that begin this post should give you some insight into why defense attorneys sometimes feel that way.

If you believe my client's version of events when she explains that she isn't guilty, then dismiss the case.  Don't make her and her family have to experience the overwhelming stress of being charged with a felony if you don't think she did it.  We shouldn't have to wait for the Grand Jury to No Bill the case because you don't want to be the one who signs your name to a dismissal.

If you think that my client is worthy of being on probation on a lesser charge, then why make him technically be on three probations for statistics' sake?  It literally changes nothing about what his punishment will be like.

If you think that a Grand Jury shouldn't have indicted a case and that your links to my client aren't strong enough for trial, don't make her wait until the co-defendant pleads on something before you are willing to dismiss it.  The facts are either there or they are not.

And, finally, the inspiration for this entire post --

Just because the case is a serious, First Degree case, that doesn't mean that it can't be dismissed if the facts aren't there.  A First Degree felony case can sometimes be as weak as a questionable speeding ticket.  The same standard of proof applies regardless of degree.

If a prosecutor wants to tell me that, in their opinion, the case is strong enough to convince a jury Beyond a Reasonable Doubt, then that's fine.  I respect that.  But when even your own lead investigator states on the record that they aren't even sure a crime was committed at all, that might be a sign that you are wrong in your opinion.  That's when words like "I wouldn't dismiss that case.  It's a First Degree!" start becoming really really offensive.

When a juror flags me down in the lobby of the CJC (after an acquittal) and asks me to extend her apology to my client and his family for having to go through the trial, you might want to start evaluating your judgment on that policy.

Many moons ago, when I was working in another county, I heard a prosecutor on a DWI case say "I know we aren't going to win, but this kid needs a good trial."  I found the statement to be strange then.  Now I find it to be mortifying.

Unlike the private sector where one has to worry about economic trends and supply and demand, the Criminal Justice System will never run out of cases to try and people to prosecute.  It is a continuous growth industry.  There are plenty of cases where a prosecutor has more than ample evidence to prosecute and convict without hesitation.

But when the evidence isn't there, the case needs to be let go.

Wednesday, February 11, 2015

Forced Empathy

As I've noted here and there on blog posts since becoming a Defense Attorney six years ago, one of the things that I think I've gained on this side of the bench is a better grasp of empathy towards those accused of crimes.  When I was a prosecutor, I never got Mark Bennett's frequent assertion on his blog that every prosecutor should have to spend some time in jail to gain a full appreciation for what criminal defendants go through.  I still think Mark's position is a little extreme, but I understand his point.

Too often those who enforce the law and the punishment associated with breaking the law don't quite get the human effect that comes along with punishment.

And then something like this happens that kind of makes those who enforce the law have to feel the consequences of breaking the law . . .


(H/T & Photo Credit to Mark Thering)

Saturday, January 31, 2015

An Unworkable Drug Policy

Yesterday, the Harris County District Attorney's Office made a radical change to their Operations Manual addressing how prosecutors will deal with Controlled Substances cases.

The change, which takes effect immediately, prohibits prosecutors from making a recommendation (or agreeing to go to a judge without a recommendation) on any controlled substance case, unless there is a lab report confirming that controlled substance.  The only possible exception to this rule would be if a prosecutor were to recommend that "a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision."

The idea behind this change in policy was doubtlessly a noble one.  Too many defendants were entering into plea bargain agreements on drug cases only to later find out that the drugs in question were not controlled substances after all.  In situations where a lab report revealed a substance not to be a controlled substance, a Writ would have to be filed to correct the error of an innocent person who was currently serving prison time for a non-crime.

So, one might wonder why exactly a person would ever plead guilty to a drug case, if the drugs were not a controlled substance.  The answer is simple -- the people who plead to drug cases usually believe that they actually were possessing a controlled substance.  It should not be too shocking to discover, however, that there are some less-than-honest drug dealers out there who sometimes rip off their clientele with fake dope AKA "turkey dope." A client who is brought back from prison early to have his conviction and sentence set aside usually finds himself feeling mixed emotions.  On the one hand, he's very excited to be going home earlier than expected.  On the other hand, he's pretty ticked that he got ripped off on the streets.

The District Attorney's Office wants to stop wrongful convictions based on negative lab findings from happening in the future, which is a laudable goal.  Unfortunately, the Office's solution is filled with problems.

By declaring that the Office "shall not make a recommendation nor agree to entry of a plea of guilty or no contest" in a controlled substance case, they put all drug cases in limbo until the lab results are available.  Depending on the lab, that can be anywhere from three weeks to three months as an accused person sits in jail with literally nothing happening on his case.   A Defendant who wants to work out his case won't be allowed to.

Here's where it gets a little more interesting.  By stating that that their prosecutors may not "agree to entry of a plea of guilty or no contest," the Office is stating that they will block Defendants from entering a plea to the Judge of the Court without an agreed recommendation from the State.  Going to the Court without an agreed recommendation from the State is a very common practice in Harris County which allows Defendants to sidestep the prevailing policies of the D.A.'s Office.  Pleading without an agreed recommendation to the Judge/Court on low level drug offenses can often end up with a 12.44(a) sentence.

Now, for those of you who don't practice criminal law, 12.44(a) is a provision in the Penal Code that allows a person who is convicted of a State Jail Felony to be punished with a Misdemeanor sentence.  The person is still convicted of the felony offense, but rather than being sentenced to 6 months to 2 years in a State Jail Facility, the Defendant is sentenced to serve his or her sentence in the county jail.  What makes this an attractive option to Defendants is that "county time" a) gives them three days of credit for every day that they serve; and b) maxes out at a year (which is actually 4 months because of two-for-one credit).  Generally, the District Attorney's Office frowns upon agreeing to a 12.44(a) sentence.

NOTE:  Not all Courts do these types of "without an agreed recommendation" pleas, but many do.

Controlled Substance cases that are classified as State Jail Felonies are (generally) those where the weight of the controlled substance is less than 1 gram.  This covers the multitude of "crack pipe cases" that are often prosecuted despite only a residue of crack cocaine being detected on the pipe.  It is a routine practice on these "crack pipe cases" for the Defendant to plead guilty to the Judge/Court without an agreed recommendation so that the Judge can sentence under 12.44(a).

This practice of going to the Court without an agreed recommendation from the State is what will be coming to a screeching halt under the new change in the operations manual.  The State has to agree to waive its right to a jury trial before such a plea can proceed, and the new policy forbids prosecutors from doing so.  In essence, a Defendant who is charged with a crack pipe case that lands in a Court that is willing to sentence under 12.44(a) is going to be out of luck.

Now, let's look at some of the implications of that for a moment.  Given the fact that most low level drug offenders don't exactly have a lot of cash on hand, they are probably not going to be able to bond out.  A compassionate judge may be willing to give a Defendant 30 days in the county jail under 12.44(a), but the D.A.'s Office is now going to block that from happening.

Why are they going to block that from happening?  Because they aren't sure that the controlled substance alleged is actually a controlled substance until they get an official lab report in.  So, basically, the D.A.'s Office seems to be confident enough to deprive the Accused of his freedom for as long as a lab needs, but not confident enough to sign its name to a plea bargain.  In this scheme of things, sitting on your butt in jail is worth the price of them avoiding having to do a Writ, should a substance turn out to be turkey dope.


It is also kind of a slap in the face of the Judiciary.  If the State of Texas is saying they won't waive a jury (and thus allow a plea without an agreed recommendation), they are, in essence, saying that they don't trust the Judge of the Court to do the right thing.  That's an interesting and awkward statement to make.  Seeing as how both District Attorney Devon Anderson and 1st Assistant Belinda Hill are both former judges, I'm somewhat surprised with this message being sent.  I can't imagine either of them being happy with this policy change if they were still on the Bench.

The new policy does allow for prosecutors to agree to a Deferred Adjudication, as long as there is no jail time assessed as a condition.  Well, that's nice and all, but the prosecutors don't have control over what conditions a Judge assesses on community supervision.  They can say it all they want in their policy manual, but if a Judge has a plea entered for a Deferred, that Defendant is now at the Court's mercy.  The State can't regulate that away.

So, what is the end result for this?  My prediction is docket numbers shooting through the roof.  If the State suddenly can't work out low-level drug cases, then the dockets are going to get clogged.  I highly doubt that the D.A.'s Office will be agreeing to personal recognizance bonds while labs get sorted out.  I also highly doubt that they will tell cops to get a warrant for these defendants only after getting their lab results in.  They don't want to inconvenience the cops, after all.

In a discussion with some friends yesterday, someone a lot smarter than me came up with a pretty simple solution:  waive your right to indictment and immediately ask for a jury trial on the first setting.  Not all judges will give you a two week trial setting, but they should.  After all, if the State of Texas by and through her District Attorney is saying that it won't waive a jury trial on these types of cases, shouldn't the Court accommodate them by providing a jury trial as soon as humanly possible?

Just a thought.

I know that the D.A.'s Office's heart was probably in the right place when they came up with this policy, but I just don't see it working out for very long.

Tuesday, January 20, 2015

When the Ax Falls

Harris County Criminal Justice Center regulars were shocked over the past several days as the District Attorney's Office conducted a mass firing of prosecutors and other personnel.  The Office firing so many employees at one time hasn't been seen since . . . well, since the incoming Lykos Administration decided to fire me and several other prosecutors, investigators and secretaries at the end of 2008.

As I can attest, getting fired isn't much fun.  In addition to being embarrassing, it also fills your life with a level of uncertainty that you weren't expecting to address at this stage of the game.  (I'm not going to post the name of anyone who got fired here, nor will I publish the names in the comments.)

Some of those who lost their jobs were already at the Office when I started back in 1999.  Others started while I was still there and some started after I was gone.  I think I knew almost all of them.

And for the life of me, I'm not real sure why they were fired.  Especially not all at once.  I agree with Mark Bennett that there doesn't seem to be any rhyme or reason to it.

I realize that there may be some things I'm not privy to.  I've been gone for over six years now, after all.  The prosecutors I knew that lost their jobs didn't seem to deserve it from what I saw during my time as a prosecutor or as a defense attorney.  I believe one of them was arguably the best trial lawyer they had -- and an even better Chief.

It makes me sad.

So, here are a few words of advice from someone who has been there:

1.  The idea of life after HCDA is scary, but it isn't as hard as you think.

2.  Remember that everything happens for a reason.

3.  If you want to be a defense attorney, ask for help from those of us in the Defense Bar.  The Defense Bar in Harris County is not only amazing inside the courtroom -- they are even more amazing outside.  You will be overwhelmed at the kindness and generosity of time they will provide -- even that Mark Bennett guy that everybody gets so pissed off at.

4.  Get an accountant if you are going to hang out a shingle.

5.  Call me if you need anything.

6.  This, too, shall pass.

Hang in there, guys.  It isn't nearly as bad as you think.

Saturday, January 10, 2015

If Your Doctor was Your Lawyer

Back in 2013, when I was going through a round of chemotherapy for leukemia, my wife remarked, "You know, one thing I will give you credit for is that you do listen to your doctors."

She meant that when the doctors prescribed a regimen for me, I followed their instructions to the most minute detail.  

"Why wouldn't I?"  I asked.  "They are professionals.  I went to them with a problem and they told me the best way to handle it.  Why would I disregard that advice?"

I went on to tell her that sometimes, by analogy, lawyers have a similar job to doctors.  They go to school and train so that they can help others.  (NOTE: Yes, I know that is a very sterilized and idyllic way of viewing the job of the lawyer, but go with it for the sake of the blog post.)  I told her that despite my legal advice, some clients often think they know better.  If they heard some news or advice from me that they didn't want to hear, they immediately cited something they had seen on the news.  My years of law school coupled with practicing exclusively criminal law for over 15 years was nothing compared to something they saw on the news, heard from a cellmate, read in the law "liberry" or, my personal favorite, watched on Law & Order.  

Seriously, you have no idea how many times lawyers get confronted by clients who saw something different on Law & Order.  The bottom line is that it is a very frustrating experience when you give solid legal advice to a client and that client either argues with you or simply ignores your advice.  I don't enjoy it when my clients do it to me and I don't do it to professionals I ask to help me -- especially not my doctors. 

When I first got sick last year, my doctor, Sam Siegler, suggested that I stay away from doing my own Internet research.  He was sending me to a great oncologist and knew the oncologist would give me the real information that I needed to know.  I think Sam's warning was more directed towards my wife -- who firmly believes that no matter the problem, there is information on the World Wide Web that can solve it.

Earlier this week, I had to go to a dermatologist to take care of a small basal cell carcinoma spot near my left temple.  His advice was that he needed to perform a quick surgical procedure to cut the spot out.  It would leave a nasty scar and there was a small chance that it could cut the nerve that raises my left eyebrow.  His clear advice was to do the surgery, and, of course, I agreed.

Later on, I started thinking about what it would have been like if the conversation between me and my doctor had been more like conversations with me and some of my (more meth-addicted-type) clients.  It would go something like this:

DOCTOR:  Well, Mr. Newman, it looks like you have a small bit of basal cell carcinoma.

ME:  Carci-what?  What does that mean?

DOCTOR:  It's a type of low-grade skin cancer that . . .

ME:  Cancer?!  I'm not trying to have cancer!

DOCTOR:  Um, okay, well the fact of the matter is that you do have it and we have to do something about it.

ME:  I don't see any cancer.

DOCTOR:  It's that little spot on your left cheek.

ME:  Man, that's a zit.  I've been having zits all my life.  It's not cancer.

DOCTOR:  Sir, I've been a dermatologist for fifteen years and I can assure you that it is a basal cell carci -- 

ME:  Why are you trying to put this on me?

DOCTOR:  Nobody is trying to "put" anything on you.

ME:  I've been watching ER for twenty years and Grey's Anatomy for ten years.  This ain't cancer.

DOCTOR:  Yes, it is and we need to do a small surgery.

ME:  Surgery?!  What the hell are you talking about surgery? You don't know anything about cancer.  You do that chemodiation stuff for cancer.

DOCTOR:  I think you mean either chemotherapy or radiation, Mr. Newman.

ME:  Whatever.  My cousin's girlfriend's brother got cancer and he got that chemodiation and I'm not going to be doing that.

DOCTOR:  No one is asking you to do that, sir.  It is just a small surgical procedure that will leave a small scar.

ME:  A scar?!  I don't need anymore scars.  I've already been married three times, man!  Don't tell me about scars.

DOCTOR:  Well, the bottom line is that you have a basal cell carcinoma and it has to be dealt with one way or the other.  This is my best medical advice to you, sir.

ME:  This is bullsh*t, man.  I'm going to go get a Free World Doctor.

DOCTOR:  A what?

ME:  You ain't working for me, man.

Thursday, January 1, 2015

Hey, I Won Something!

Shortly after I wrote my post this morning about my goal of writing more in 2015, I got an e-mail from my Uncle John congratulating me on winning Scott Greenfield's 2014 Jdog Memorial Best Blog Post Award.

I didn't even know that I had been nominated, much less that I had won anything.

To say that I'm happy about the award is an understatement.  Scott is a friend that I met through blogging.  He's an amazing writer with a mind that works overtime.  To win a blogging award coming from somebody who writes like he does means quite a bit to me.

I was also very flattered to learn that I had been nominated by Harris County Public Defender Alex Bunin, which is also an honor.  Alex is also a friend that I have a tremendous amount of respect for.

You guys made my day and I can't thank you enough.  It was a great way to start out the New Year.

P.S.  I also have to thank my wife who edits my posts and catches the vast majority of my grammatical train wrecks.

Happy 2015!

At the end of 2013, I found myself looking very forward to the idea of 2014 being a much less eventful year.  Having fought a small battle with a very curable strain of leukemia and then rolling straight into the birth of my youngest son, I was a little exhausted this time last year.

Luckily, 2014 was a much less eventful year.  My family and I moved into a new house, but compared to the events of the preceding year, that was a walk in the park.

I did stay pretty busy all year -- both at work and on the home front.  That aforementioned youngest son didn't start sleeping through the night until after he celebrated his first birthday in October.  Sleep around the house was a precious commodity.

I'm writing all of that as a lame way of explaining why I haven't been writing much at all lately.  For the few remaining readers of this blog, I'm going to try to step it up a notch.  I like writing and I miss it.

My goal for 2015 is to write at least a post a day a week.  Not necessarily long and thoughtful posts like my friend Scott "Don't Call Me Prolific" Greenfield is able to write everyday, but hopefully something.  There has obviously been plenty to talk about in the Criminal Justice World lately, I just haven't managed to find the time to do so.

Here's to a good 2015 with plenty to talk about.

Happy New Year, everyone!

Sunday, November 16, 2014

Signing Up for Big Brother

Last Sunday evening, I took a plane trip from Houston's Intercontinental Airport to a moderately sized airport in Florida as part of my work with Cold Justice.  There were five of us traveling together and we had a lot of equipment, so one of the production assistants was meeting us at the airport with a van to take us to the hotel.

As we were waiting in the Passenger Pick-Up area, a heavy set African-American man drove up to pick up a couple who were apparently on the Houston flight with us.  I noticed him because he appeared to be uncomfortable parallel parking at the curb so he parked in a moving lane of traffic.  Leaving his car parked, he got out and helped the couple load into the car.  It was late at night and he wasn't inconveniencing anyone.  I just didn't have much else to observe while waiting for my ride.  Otherwise, I probably wouldn't have even noticed him.

When I got back to my hotel room after a long day of travel, I checked my Facebook account on my cell phone.  Although my phone had been on while I was at the airport, I didn't check Facebook while I was there.

As I browsed through all the updates that had occurred with my friends during the day, I had the usual pop-up of "Friend Suggestions" in my feed.

The first person suggested was the African-American man from the airport.  If I hadn't watched him for about five minutes straight, I wouldn't have recognized him.  His profile showed that we had one mutual friend -- a lady that I used to work with at the Harris County District Attorney's Office.

Now, keep in mind, I hadn't "checked in" at the airport.  I just happened to carry my phone through it.

I was mildly amazed at the friend suggestion, so I posted a brief recount of what had happened on Facebook (of course).  I got several responses, including my favorite: "Get some sleep, Murray."

Then one of my friends posted the following:
It has happened to me.  I was in a hotel in Nashville and overheard a conversation in the elevator.  The woman had a distinctive name.  When I got back to my room I noticed her name in my People You May Know section and sure enough it was the woman I had just seen in the elevator.  She was friends somehow with someone I am friends with and I am sure FB references your current IP address to look for people.  So, Voila!  Still very weird.
Now, in addition to the fact that my friend uses the term "voila!", I found this to be a little disturbing.  I'm not claiming that I read the fine print when signing up for Facebook's privacy settings agreement.
As any of my Facebook friends can tell you, I like sharing pictures of my kids and places where I go.  Yes, I know that it is much more prudent to share nothing personal on the internet, but what can I say?  I'm a Facebook junkie.  I'm used to ads popping up on my page that relate to a location where I checked in.  I'm okay that they seem to have picked up on my love of Star Wars, the Rolling Stones and the fact that I have small children at home.  I post about that all the time on my page.

I just never knew that Facebook appears to be watching me when I'm not logged in and that is a little spooky.

I'm not saying that Facebook is doing anything that isn't covered in that fine print, either.  I'm sure I signed up for them to monitor my location -- even when I'm not logged in.  The incident with the guy at the airport is pretty benign, but it doesn't take much imagination to think of a scenario that could be worse.  Facebook is inviting people into your life that you don't even know.

My point here isn't about the technicalities of Facebook and privacy.  I know that Scott Greenfield and Mark Bennett and others who follow technology and how it applies to the law are much more adept at expressing those details.

The reason I wrote this particular post is that our profession deals with privacy rights every day.  We fight searches and seizures under the mantle of Privacy as the main theme of many of our cases.  We complain of drones that spy and cell tower records and toll booths and facial recognition software and street corner cameras and legalized blood draws.

But the reality is that so much of that privacy we willingly give away to Facebook and other similar social media sites.

Food for thought.

Friday, October 24, 2014

Kim Ogg, Attorney-Client Privilege and the McAfee Case

When a potential client first calls a lawyer on the phone or comes into his office, there is no predicting where that case will lead.  Whether it be civil, criminal, or family law, the variables are so vast that there are really only two things a lawyer can guarantee a client:  his best effort, and complete confidentiality.

The principle of Attorney-Client privilege is something that every lawyer and most non-lawyers understand.  It is a sacred principle in the legal profession and one that is held above all others.  A lawyer could arguably be forgiven more easily for doing a terrible job on a case than he could ever be for sharing privileged information.  Client communications are privileged.  Period.

How serious is the duty of Attorney-Client confidentiality?  If I were to represent a client and he fired me, I would be forbidden from turning over my file on the client to his new lawyer until I had confirmed that client's permission to do so.  It is so serious that the confidentiality begins as soon as the potential client first tells a prospective lawyer the facts of his case --  even if that client doesn't hire that lawyer, privilege exists because of communication in anticipation of hiring a lawyer.

It is so serious that the duty of Attorney-Client confidentiality survives even if the client dies.

Attorney-Client confidentiality is one of the most basic tenets of being a lawyer.

It just is.

On Saturday, May 8, 2010, a woman named Janet McAfee was shot and killed by her husband, Ken McAfee.  After killing his wife, Ken McAfee engaged in a 3 hour SWAT standoff before shooting himself in the jaw.  He would survive the injury and be charged with Janet's murder.

In the days that followed, it would come to be revealed that Janet McAfee had been in the process of divorcing Ken.  According to a Houston Chronicle article, she had filed for divorce in March 2010.  In the same article, it is mentioned that at some point, Janet had attempted to become legal guardian of her husband, Ken.  That information was shared with the Chronicle by Janet's former lawyer, Jack Ogg.

Now, right off the bat, there is something suspect about a murder victim's former attorney giving information to the press about the nature of his representation.  In my opinion, that seems like a breach of Attorney-Client confidentiality right there.  At least Ogg declines to state Janet's reasons for seeking the guardianship.

But it seems as if Ogg clearly violates Attorney-Client privilege when he begins telling unflattering information about his now-deceased former client:
"I've heard that there were threats on both sides," Ogg said.  "But that's not unusual when people are going through marital problems."
Okay, so you have a former client who was initiating legal action against her husband and said husband has now murdered your former client.  What better time to start sharing with the press that she had been making threats toward her killer?  This type of sharing is certainly not acting in the best interest of your client.  As a matter of fact, you are actually beginning to act in the interest of the man who killed her.

So what does that have to do with Kim Ogg?  Well, it gets worse.  A lot worse.

Ken McAfee's murder case landed in the 339th District Court and although he was initially appointed counsel, attorney Gerald Fry comes in on the case as retained counsel on May 13th, 2010.  On July 6, 2010, Fry files the below "Ex Parte Motion to Acquire Records," asking Judge Maria Jackson to order the Ogg Law Firm to turn over their file on their deceased former client, Janet McAfee.

Now, normally, this would be the kind of thing that any self-respecting attorney would go to war over.  Like a journalist who would go to jail in contempt of court before revealing their sources, an attorney would proudly go to jail for contempt rather than ever allow their privileged Attorney-Client communication to be turned over.

Seriously, folks.  This is a huge deal and I personally know at least two criminal defense attorneys who were willing to go to jail rather than turn over their files to another lawyer without the client's permission.

In this case, you have Gerald Fry, Ken McAfee's attorney, asking for the confidential information shared between the Ogg Law Firm (by and through its representative, Kim Ogg) and their former client Janet McAfee, the murder victim of Fry's client. 

Don't get me wrong -- there is no harm in Gerald Fry trying to get their file.  He just should have expected Kim Ogg -- Victim's Right Advocate and former CrimeStoppers head -- to tell him to go to Hell.  Even if Judge Jackson were to grant Fry's request and order the file, any self-respecting lawyer who has ever represented a client (especially one that has been murdered) would go to jail before complying with that order.  

Quite frankly, there probably would have been no chance on Earth that Judge Jackson would have ever granted Fry's Motion, if it hadn't been for the "Certificate of Conference" he included at the end of his motion.
Um, holy betrayal, Batman.

The reason that Gerald Fry was filing the Motion to Acquire records was because he had already spoken to Kim Ogg eight days earlier and she had told him that she had no objection to turning over her file on Janet McAfee.

Kim Ogg agreed to turn over a murder victim's confidential file to the attorney representing the victim's killer.  She just needed a judge to sign off on an order to cover herself.

And the order was signed and the Ogg Law Firm turned over their Attorney-Client Privileged file to the Defendant's attorney.  Whether you are the most hard core of prosecutors or the most hard core defense attorney, this breach of confidentiality is stunning and mortifying.  The information in the file was damaging to the reputation of Janet McAfee, and the defense was absolutely not entitled to it.  Neither was the prosecution.

Nobody was entitled to see the information in the Ogg Law Firm's file on Janet McAfee.  Why? It was privileged.

To her credit, Judge Jackson quickly realized that the file on Janet McAfee was not Ogg's to give.  She ordered the Defense to return the file almost immediately.  Gerald Fry complied with that order.

But why did Kim Ogg ever think it would be okay to turn over the file in the first place?  Kim Ogg is many things, but she isn't stupid.

I've learned from credible sources that despite the fact that Jack Ogg was not currently representing Janet McAfee at the time of her death, he had hopes of representing her estate in a wrongful death lawsuit against Ken McAfee.  That would explain why he took to talking to the media so quickly after the murder.  But Janet McAfee's family didn't want the Ogg Law Firm to represent the estate.  Janet had gone to high school with a lawyer and her family wanted that classmate to be the lawyer on the wrongful death case.

Probably because that classmate was Kelly Siegler.

When the Ogg Law Firm learned that they wouldn't be handling any further legal matters on behalf of the late Janet McAfee, I guess they felt safe in giving their files and communications to her killer's attorney.  It seems like a very spiteful move from where I'm sitting.

Earlier this year, Ken McAfee was convicted of murder and sentenced to life in prison.

No thanks to Kim Ogg -- who would really appreciate your vote for District Attorney.

Thursday, October 23, 2014

The 2014 General Election

From the "Better Late than Never Department" . . .

Normally I would have my recommendations in the Criminal Justice Races out before early voting starts, but I'm running a little late this election cycle.  Early voting began on Monday, and if you haven't done so already, you need to get out there and do it.  As I remind you every election cycle, it is so much easier to vote at any of the available early voting locations in the two weeks leading up to the election than to be limited to your one and only polling place on election day.

My early prediction on this election cycle is that there will be a Republican sweep.  I base that prediction entirely on what I've seen with the past several non-Presidential Election years.  I could be wrong.

So, here are the races that affect the Harris County Criminal Justice Center.

Harris County District Attorney - Devon Anderson (R) vs. Kim Ogg (D)
When Ogg first announced that she would be running against District Attorney Devon Anderson, I thought it would be a good campaign between two qualified candidates.  Although I still don't doubt that Kim Ogg has the intellectual capacity and legal knowledge to be District Attorney, her actions on the campaign trail have called into question her character to some degree.  Ogg has made a habit of grandstanding on issues and attempting to mislead the general public on very standard procedural issues regarding special prosecutions (as I wrote about here).  The move of making misleading statements for public approval is something straight out of the Pat Lykos playbook, which is no surprise since Ogg was a contract employee under the Lykos Administration.

Additionally, Ogg's pandering to voters with her recent statement about forbidding probation on any and all Burglary of a Habitation charges illustrates a dangerous outlook for a D.A.'s Office led by Ogg.  Any experienced prosecutor or defense attorney can tell you that there are all types of factors that go into assessing the appropriate punishment for any criminal case -- burglary is no exception.  Under Ogg's theory, if a 17-year-old kid with no criminal history wanders into an open garage and steals a rake, she wants him to go to the prison.  That's just stupid and the aspiring D.A. should know better.

If the public isn't concerned about how Ogg treats defendants, perhaps they might be interested in her dealings with victims of crime.

Yesterday, the Houston Police Officers' Union issued a statement expressing their concern about Ogg's fitness to serve as District Attorney, citing an incident where Ogg had released identifying information about the victim of a crime when Ogg was serving as the head of CrimeStoppers.

On a more positive note, District Attorney Devon Anderson has been continuing to do an effective job since taking over the Office.  She continues to work on new programs and courts such as deferring prosecution on recreational marijuana use and a court dealing with prostitution cases.  She's also leading her Office from the front, having recently successfully prosecuted the Capital Murder trial of Harlem Lewis.

Recommendation:  Devon Anderson (R)

180th District Court -- Catherine Evans (R) vs. Randy Roll (D)

Since being appointed to the 180th bench to replace Judge Marc Brown (who was appointed to the Court of Appeals), Judge Evans has gotten rave reviews as a fair and smart judge.  She has proven to be fair to both the prosecution and the defense and runs an efficient and pleasant courtroom.

Randy Roll is a former one-term judge who lost his bench to Judge Kristin Guiney in the 2012 election.  I like Roll as a person, but Evans is the better choice in this election.

Recommendation:  Catherine Evans (R)

184th District Court -- Jan Krocker (R) vs. Mark Thering (D)

Although I anticipate a Republican sweep, I hope that this particular race proves me wrong.

Longtime judge Jan Krocker has long been regarded as a controversial judge.  Early last year, her behavior led to her removal from the Harris County mental health court by her fellow judges.  She aggressively tried to block her opponent's candidacy by way of a lawsuit, which failed.  Most concerning, however, were her statements to the Houston Chronicle editorial board this year:
"My job is to protect the public from dangerous people," Krocker said.  "Same as being a prosecutor."
Um, no.  Not even close.  Krocker's unbelievable statement to the Chronicle is mindnumbingly foolish.  She basically stated that she was a prosecutor.  How does a defendant get anything resembling a fair trial with that mentality? Krocker's statement to the Chronicle has already led to one Motion to Recuse being filed against her due to her bias.  I have no doubt that there will be many more to come.

Mark Thering, on the other hand, is a highly respected, long time attorney who is known as one of the nicest guys in the courthouse.  He has a strong background in Criminal Law and would make an outstanding judge.  This one is a no-brainer and I hope even my "die hard" Republican voter friends will cross party lines in this race.

Recommendation:  Mark Thering (D)

185th District Court -- Susan Brown (R) vs. Garland McInnis (D)

Judge Brown has been on the bench for as long as I've been a licensed attorney.  I've tried cases in front of her as both a prosecutor and a defense attorney, and have felt like I received fair trials from both perspectives.  Judge Brown stays up-to-date on all current case law dealing with criminal cases and can name those cases off the top of her head.  Although I'm not as big of a fan of the new docket management system as she (and other judges) are, I have to commend her for working on creative solutions to make the CJC a more efficient institution.  Not only is she managing her own caseload, as presiding judge, she has worked hand-in-hand with both the D.A.'s Office and the Defense Bar to make the CJC a better place.

I have nothing negative to say about Garland McInnis.  He's a nice guy and a smart guy.  If he were in a different race, I would probably vote for him.  However, in this race Susan Brown is the much better candidate.

Recommendation:  Susan Brown (R)

208th District Court -- Denise Collins (R) vs. Chuck Silverman (D)

Judge Denise Collins has been presiding over criminal cases since 1992.  Her opponent is a corporate lawyer who seems to run for any open bench is available.  I've stated time and time and time again that the Criminal Justice System is absolutely no place for people who have no experience in the criminal justice world.  The audacity of a non-criminal attorney even seeking a bench where he has no experience is offensive.

Recommendation:  Denise Collins (R)

230th District Court -- Brad Hart (R) vs. Greg Glass (D)

Since being appointed to the bench in 2013, Judge Brad Hart continues to earn rave reviews from both the Defense and the Prosecution as a kind, fair and intelligent judge.  He is courteous to all who enter his courtroom and he works hard to make sure that his court is continuously in trial.  I know I'm biased, but Judge Hart has proven to be just as good of a judge as I predicted he would be back in 2013.

Again, I have nothing negative to say about his opponent, Greg Glass, but Judge Hart is too good of a judge to vote against.

Recommendation:  Brad Hart (R)

248th District Court -- Katherine Cabaniss (R) vs. Shawna Reagin (D)

The race for the 248th District Court also has two qualified candidates for the position.  Judge Katherine Cabaniss was appointed to the Bench last year and has done an excellent job in doing everything she can to improve the Court she inherited.  She has actively worked at making her court more efficient and also goes to trial quite often.  She has sought input from both the prosecution and the defense on how to improve the system.

Surprisingly, I have not seen former 176th Judge Shawna Reagin since she left the bench at the end of 2012.  As I wrote during the 2012 campaign, I think Reagin was a good and smart judge.  Her demeanor and commentary from the bench earned her some enemies during her tenure as judge.  In another race, I would probably still vote for Reagin, but in this case, my recommendation goes to Judge Cabaniss.

Recommendation:  Katherine Cabaniss (R)

262nd District Court -- Denise Bradley (R) vs. Jules Johnson (D)

On a personal level, this race is tough to make a recommendation on, because both Judge Bradley and Jules Johnson are personal friends.  I like them both immensely and I almost didn't do recommendations at all this year because I didn't want to make a public statement on who I would pick in this race.  The danger of blogging on elections is that you are guaranteed to anger 50% of those whom you write about.

That being said, when it comes to qualifications, Judge Bradley has far more experience that my friend Jules.  She was a longtime prosecutor and has been a judge for several years now.  She's done a great job on the bench and is well liked by both the prosecution and the defense.  There is no reason to vote against her.  I know I keep saying this, but in a different election, Jules Johnson would definitely get my vote.

Recommendation:  Denise Bradley (R)

263rd District Court -- Jim Wallace (R) vs. Herb Ritchie (D)

Again, we have two qualified candidates running against each other with Judge Jim Wallace facing off against former 337th Judge Herb Ritchie.  I have practiced and tried cases in front of both men, and both are excellent judges who know the law and provide fair trials to the accused.  They are both to be commended for running a very clean campaign against each other.

Judge Wallace has more experience as a judge and he has done an excellent job in his years on the Bench.  While I have nothing negative to say about Ritchie, this is a very easy recommendation.

Recommendation:  Jim Wallace (R)

County Court at Law # 2 -- Bill Harmon (R) vs. Harold Landreneau (D)

I think that Judge Bill Harmon has been on the Bench since dinosaurs roamed the earth.  He was consistently re-elected during his time as a District Court Judge and now as a County Court at Law Judge.  There's a reason for that:  he's a good judge.  Although his strong ties to MADD have occasionally drawn the ire of the Defense Bar, at the end of the day, he is considered to be a fair and smart judge.  He is also one of the best personalities on the Bench.

I have nothing negative to say about Mr. Landreneau, although I don't know him very well.

Recommendation:  Bill Harmon (R)

County Court at Law # 4 -- John Clinton (R) vs. Nikita "Niki" Harmon (D)

I will admit that I had some reservations about Judge Clinton  (due to his not practicing criminal law) when he ran for the bench four years ago.  I have been pleasantly surprised with my experiences with him during his first term as judge.  Judge Clinton has proven himself to be a fair judge, and more importantly, a kind one.

I don't know anything about his opponent, other than she is a municipal court judge, I believe.  There is a big leap from trying traffic tickets to the job of County Court Judge.

Recommendation:  John Clinton (R)

County Court at Law # 5 -- Margaret Harris (R) vs. Ramona Franklin (D)

I was the Chief of County Court at Law #5 back when Janice Law was on the bench and now-Judge Margaret Harris was running against her in the Republican Party.  I was so relieved when Judge Harris won that race and she hasn't disappointed during her years on the job since then.  Judge Harris has used her appellate experience from her time at the District Attorney's Office to become an effective and knowledgable judge.  She is highly respected and well liked by both the Defense and the Prosecution.

I have nothing negative to say about Ramona Franklin, but her level of experience is nowhere near what Judge Harris brings to the Bench.

Recommendation:  Margaret Harris (R)

County Court at Law # 6  -- Larry Standley (R) vs. Linda Geffen (D)

In today's day and age of politics and partisan rules, Judge Larry Standley has proven time and again to be a judge who isn't afraid to rock the boat when it comes to doing what is right.  His occasionally gruff demeanor can hide an extremely compassionate jurist who is willing to think outside the box when working on creative solutions in his courtroom.  Judge Standley is known for his knowledge of the law and his firm neutrality in deciding all cases.  He is active in the community and absolutely is the kind of judge that all people should want on the Bench.

I don't personally know Linda Geffen, but this bizarre story from 2012 calls into grave question whether or not she should be the person in charge of making important decisions that affect peoples' lives.

Recommendation:  Larry Standley (R)

County Court at Law # 7 -- Pam Derbyshire (R) vs. Sheila Acosta (D)

Judge Derbyshire was the first judge that I practiced in front of as a prosecutor.  She was great then and she is great now.  Described by the Houston Chronicle as having a "sterling reputation," I could not agree more.  I have nothing negative to say about Sheila Acosta.  She, too, has a great reputation, but Judge Derbyshire should stay on the bench.

Recommendation:  Pam Derbyshire (R)

County Court at Law # 8 -- Jay Karahan (R) vs. Kelli Johnson (D)

Sometimes I wimp out on making a recommendation.  This will be one of those times.  Judge Jay Karahan has done a great job on the bench during his tenure.  Kelli Johnson is one of my oldest friends from the District Attorney's Office.  Our kids are friends and I adore her as a family friend. She would also make a great judge. Either one of them would deserve your vote.  I cannot fairly make a recommendation in this one.  Both are great.

Recommendation:  None

County Court at Law # 10 -- Dan Spjut (R) vs. George Barnstone (D) vs. Brad Walters (L)

I didn't know until earlier this week that this was a three party race, with Brad Walters running as a Libertarian.  As anyone who read this blog knows, I was a big supporter of Tonya Rolland in her bid for the Republican nomination in this race.  My issue with Spjut was that he doesn't practice criminal law and neither does Barnstone. Barnstone appears to be a joke of a candidate who has never set foot in the CJC.  He doesn't deserve anyone's vote.

During the primary, the Chronicle described Rolland as the only qualified candidate when it came to the candidates running as a Democrat or a Republican.

Since then, Brad Walters has announced his candidacy as a Libertarian.  Brad Walters doesn't stand much of a chance running as a Libertarian, but he's a criminal defense attorney and knows the material.  He gets my vote.

Recommendation:  Brad Walters (L)

County Court at Law # 13 -- Don Smyth (R) vs. Jason Luong (D) vs. Clint Davidson (G)

If you thought Brad Walters running as a Libertarian was unusual, you gotta admire Clint Davidson running as a member of the Green Party.  Too many of our criminal candidates are not eco-friendly.

I like Clint a lot and he's a damn good lawyer.  So is Jason Luong.  Both are legitimate candidates who would make great judges.

But Don Smyth has done a great job during his first term on the bench and his years of experience at the D.A.'s Office make him the best candidate in this race.

Recommendation:  Don Smyth (R)

County Court at Law # 14 -- Mike Fields (R) vs. David Singer (D)

My recommendation in this race was a hard one to make because I've known Judge Mike Fields since I began my legal career in Houston back in 1999.  Judge Fields is a great guy and a funny guy, but his behavior of late has just been wrong.  HCCLA (an organization of which I'm a former member) brought to light the fact that Judge Fields was taking pleas from unrepresented defendants and there have been other tales of him doing bond revocations on defendants without hearings, as well as interrogating defendants without their lawyers being present.  As much as it pains me to say it, I can't support a judge who is doing such things.  He's a nice man, but he has been on the bench long enough to know he can't do those kind of things.

David Singer is a former prosecutor and defense attorney.  He's running against Judge Fields because he knows that type of behavior just can't be allowed.

Recommendation:  David Singer (D)

County Court at Law # 15 -- Jean Spradling Hughes (R) vs. Raul Rodriguez (D)

Judge Jean Hughes has served as the Judge of County Court at Law # 15 since long before I became a lawyer.  To say that she is highly respected in the way she runs her court would be a vast understatement.  She has my utmost respect and the respect of almost all who practice in front of her.  She is knowledgable, courteous, and fair.  She embodies all the qualities that a judge should have and she deserves your vote.

Raul Rodriguez is a great guy and a good lawyer.  He falls under the category of "if you were running against someone else, you would totally have my vote."

Recommendation:  Jean Spradling Hughes (R)

Harris County District Clerk -- Chris Daniel (R) vs.  Judith Snively (D)

You know I can't leave out Chris Daniel when it comes to election time.  He's done a great job as District Clerk and he deserves to remain on the job.  Chris remains a very progressive District Clerk who is open to input from anyone willing to give it.  He strives everyday to make his office better and as technology progresses, so does his office.  Even though he's a T-Sip, he's got my vote.  He should have yours too.

Recommendation:  Chris Daniel

AND DON'T FORGET ------ David Newell

I normally don't make recommendations on the Appellate races, because I don't do Appellate work.  However, voters need to make sure that they remember to vote for Harris County Assistant District Attorney David Newell for Court of Criminal Appeals, Place Nine.  Not only is he a great guy with great legal knowledge and a great sense of humor, his knowledge of James Taylor music (and his willingness to cite it at the Bench) will make him a fantastic Justice.

Whether you agree with my selections or not, please remember to get out there and vote.