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Chuck Rosenthal

Endorsement watch: Ogg for DA

The Chronicle endorses a change in thew Harris County DA’s office.

Kim Ogg

Kim Ogg

Houston has changed since the hang ’em high days of Holmes’ tenure. Our region has grown more diverse, our mentality more mature. While some may look back with nostalgia, for many people – minority communities, taxpayer watchdogs, the wrongly convicted – the old days weren’t that good. The Harris County Criminal Justice Center needs a new direction, and Democratic candidate Kim Ogg is the woman to lead the way.

Devon Anderson has done an admirable job as district attorney, appointed to the position after her husband died of cancer less than a year after his election. She has made important progress in the way the office handles mental health treatment and human trafficking. In spite of these improvements, her eyes are still firmly fixed on the past. As Anderson told the Houston Chronicle editorial board, she wants to restore the office to what it was in the 1990s. Those may have been the best days to be a prosecutor. They weren’t the best days for everyone else in the judicial system. The Criminal Justice Center needs someone who will look to the opportunities of our future. We need someone who understands the big picture. We don’t need a chief prosecutor; we need a CEO.

As a candidate for district attorney, Ogg, 54, already seems better prepared to discuss the office’s policies than the incumbent. This challenger understands that her decisions can have an impact far beyond the courtroom, and she plans to rely on empirical data to direct county resources (and taxpayer dollars) to their best and highest use. Instead of wasting time and money on minor offenders, Ogg will refocus on serious crimes. These may seem like obvious policy solutions, but it is hard to move forward when you’re looking backward.

[…]

When she met with the Chronicle editorial board, Ogg said that her job would be to run one of the largest law firms in the country. It is a job of developing strategy for the future and directing funds to support that strategy. It is a job of setting an attitude that is right for our time, the way Holmes set an attitude for his. It is a job for Kim Ogg.

It’s a good, solid recommendation, for good reasons. The Chron had previously endorsed Mike Anderson in 2012 as the obvious choice over the idiot Lloyd Oliver, and they endorsed Pat Lykos in 2008. I’d thought this might be their first nod to a Democratic DA candidate since the pre-Johnny Holmes era, but an archive search reminded me that they did endorse Reggie McKamie, Chuck Rosenthal’s 2004 opponent. Rereading that article, I see that the Chron was calling for a change in direction for the DA’s office ten years ago as well. Maybe this is the year they’ll get it. Here’s my interview with Kim Ogg if you haven’t had a chance to listen to it yet.

In other recent endorsement news, the Chron went with incumbent County Commissioner Jack Cagle in a race where I didn’t realize he had an opponent, and they recommended five more incumbent Civil District Court judges in their second round of Civil Court endorsements. As was the case in round one, they had nice things to say about the Democratic challengers, most notably Barbara Gardner, whose Q&A responses will run next Tuesday. Finally, they tout a Yes vote for Proposition 1, the sole constitutional amendment on the ballot, which will allocate some rainy day funds for road construction. The Chron has done a good job so far getting these done in a year where there’s a full ballot. They have three more weeks before early voting starts to keep getting it done.

From the “Judges Behaving Badly” files

We’ll start with now-former Judge Elizabeth Coker:

An East Texas state district judge who had been accused of sending text messages to coach a prosecutor during a trial, being biased against some attorneys and improperly meeting with jurors has resigned as part of an agreement with a state judicial commission.

Elizabeth E. Coker did not admit to guilt or fault as part of her agreement with the State Commission on Judicial Conduct. The commission announced Monday that Coker had taken an immediate leave of absence and her resignation will take effect Dec. 6. The agreement also prevents her from ever being a judge again in Texas.

Coker had been a judge since 1998. She oversaw proceedings in Polk, San Jacinto and Trinity counties. Her father and grandfather had also been judges who presided over the same counties.

[…]

The commission said that during an August 2012 child abuse trial Coker presided over, the judge sent text messages to Polk County prosecutor Kaycee Jones, suggesting questions that Jones should relay to the prosecutor handling the case.

Coker was also accused of suggesting that a witness review a videotaped interview he gave to law enforcement to refresh his memory and rehabilitate his testimony and of discussing legal issues pertinent to the case “in an unsuccessful effort to assist the State (to) obtain a guilty verdict in the case.”

The defendant ended up being acquitted of a felony charge of injury to a child.

The commission also alleged Coker might have engaged in other improper communications and meetings with Jones and other prosecutors in Polk and San Jacinto counties and certain defense attorneys regarding pending cases in her courtroom.

“Judge Coker allegedly exhibited a bias in favor or certain attorneys and a prejudice against others in both her judicial rulings and her court appointment; and Judge Coker allegedly met with jurors in an inappropriate manner, outside the presence of counsel, while the jurors were deliberating in one or more criminal trials,” the commission said.

In addition, the commission alleged Coker “may not have been candid and truthful” in testimony before the panel about whether she tried to influence the testimony of a witness who spoke to the commission.

That’s quite the sorry litany of bad judicial behavior. About the only thing I can think of that she could have done to make it worse would have been to bet on the outcome of the cases before her. Personally, I think she got off too lightly – I think disbarment would have been a fitting punishment. But at least she’ll never don the robes again.

The prosecutor Coker texted is now herself a judge, and is facing her own inquiry for her role in that incident.

While the state judicial commission’s investigation into alleged improprieties by State District Judge Elizabeth Coker ended Monday with her resignation, the focus may now shift to any possible complicity by fellow judge and former prosecutor, Kaycee Jones.

Coker’s voluntary agreement to resign alludes to complaints that she “engaged in improper ex parte text communications with Jones,” who served as a Polk County assistant district attorney for 10 years until this year becoming the 411th state district judge.

On Tuesday, Jones could not be reached for comment. But in a previously written letter to the Texas Bar Association’s disciplinary counsel, Jones said that during her tenure as prosecutor she improperly utilized clandestine text messages sent from the bench by Coker.

Jones acknowledged passing along the texts, designed to bolster the prosecution’s case, to the lead prosecutor during a child abuse trial. “It was wrong and I knew better,” she wrote.

Jones’ name was prominently mentioned three times in Coker’s resignation agreement. The signed document refers to the so-called “texting and judging” incident as well as allegations of other improper communiques and meetings between Jones and Coker involving additional cases that were not specified.

Apparently, her boss at the time in the DA’s office made her promise to never do it again, but that ain’t good enough. Jones’ formal hearing is in March, but honestly, unless she has something better to say for herself, she should just save us all the time and trouble and submit her resignation. I don’t see how she can be trusted as a judge given her appallingly bad judgment.

Those two are known to be bad apples. Here in Harris County, we have an accusation of bad behavior against a Family Court judge.

State District Court Judge Denise Pratt is under investigation, accused of backdating court records to make it appear that she issued rulings and filed court documents sooner than she actually did, according to county officials.

Allegations against the 311th family court judge, raised by a Houston-area family lawyer in a criminal complaint filed with the Harris County District Attorney’s Office and the State Commission on Judicial Conduct, already have led to the resignation of Pratt’s court clerk.

Webster-based family lawyer Greg Enos, whose criminal complaint last year against a Galveston County court-at-law judge sparked an investigation by the state attorney general and multiple indictments that led to the judge’s suspension and subsequent resignation, said he delivered his complaint against Pratt to First Assistant District Attorney Belinda Hill on Monday. Enos said he believes the office has already launched an investigation.

A spokesman for the district attorney’s office said he “can’t confirm or deny” whether any investigation is underway, but county and other sources say the office is looking into it and already has contacted attorneys to arrange interviews.

The concerns Enos is raising also have touched off an investigation by the Harris County District Clerk, the official keeper of all court records.

District Clerk Chris Daniel said he looked into two of the six cases Enos included in his complaint, which led to the resignation on Monday of Pratt’s lead clerk, a well-liked, 25-year employee of the District Clerk’s office.

Daniel said he found records were postdated or mis-marked in those two cases, and that he is looking into a seventh one that another family lawyer brought to his attention.

An inaccurate timestamp or missing signature on a court document not only erodes “the integrity of the record,” Daniel said, but can have an impact on appeals and other legal processes.

“If you have the wrong date on a document, then statutorily you can run out of time to appeal a case, and that’s where the most damage is,” he said.

[…]

Several lawyers involved in the cases Enos cites in his complaint said they never have experienced such problems with a judge.

Marcia Zimmerman, a 30-year veteran family lawyer based in Clear Lake, said she resorted to filing a motion after waiting for months on a ruling from Pratt. When the ruling finally came in, she was surprised to see the date listed was months before she had filed her motion.

“I don’t think any of us believed the ruling was actually made before the petition for writ of mandamus because, why would she rule and not tell anybody?” Zimmerman said, noting that Pratt also missed two scheduled hearings.

Family lawyer Robert Clark said he had a similar experience, arguing a case in January and then waiting five months for a ruling from Pratt that the official court record now says was issued on Jan. 30, the day before the two-day trial actually ended.

“The thing is, it’s had a seriously adverse affect on the child in this case and my client,” Clark said. “This is just egregious.”

The DA’s office doesn’t comment on these matters so we don’t know for sure what’s going on with Judge Pratt, but the main charges against her are serious and could lead to a felony arrest if there’s sufficient evidence to bear them out. As things stand now, she would be up for re-election in 2014, though as was the case with our old buddy Chuck Rosenthal, whose name was dropped at the end of the story, she might come under pressure from the local GOP to not file. The filing deadline in December 9, and I daresay that regardless of what is being said officially about her case, we’ll have a pretty good idea of whether or not she’s in real trouble by then.

Should Travis County DA Lehmberg resign?

Perspectives on that are colored by politics right now.

Rosemary Lehmberg

While Travis County District Attorney Rosemary Lehmberg sought to put her weekend drunken driving arrest behind her, debate over her political future reached the State Capitol on Monday, where lawmakers weighed in on whether she should resign and how a replacement might be chosen.

Some officials pointed to an obscure provision in state law that allows a district attorney to be removed from office for being drunk. The provision also says that a single county resident could start such a removal.

If Lehmberg, a Democrat, were to resign or be removed from office, Republican Gov. Rick Perry would appoint a replacement who would be subject to confirmation by the GOP-controlled state Senate.

Chapter 87 of the state’s Local Government Code lists among the “general grounds for removal” of a district attorney and other county officials “intoxication on or off duty caused by drinking an alcoholic beverage.”

Under that law, a removal petition could be filed by anyone who has lived in Travis County for six months and is “not currently under indictment” for a crime here. The petition would be filed with a district judge, and a trial would be held on the charge — with a jury to determine the official’s fate, according to the law.

While there was no indication Monday that such a petition was being contemplated, an unofficial online petition to Gov. Rick Perry seeking Lehmberg’s removal was gathering signatures at Change.org. The petition by “Beth S” in Cedar Park said Lehmberg, as a result of her arrest, “is not a person to lead this county in delivering justice.”

That petition has now been filed, though Lehmberg has said that she has no intention of resigning. She has also said that she will not contest the charges against her and will accept whatever punishment she receives, which will depend in part on the result of her blood alcohol test, which is still pending. If her BAC was less than 0.15, she will be charged with a Class B misdemeanor, for which the maximum sentence is a $2000 fine and six months in jail. More than that is a Class A, for which the max is a $4000 fine and a year in the pokey.

I’m curious about two things. One is how often District Attorneys get into legal trouble of their own, and how often they resign as a result. Surely Lehmberg isn’t the first DA in Texas to be arrested for drunk driving. What are the precedents here? We in Harris County saw Chuck Rosenthal resign in 2008, though that was a far different situation than Lehmberg’s, not least of which was that the pressure on Rosenthal came largely from his fellow Republicans, who correctly saw him as a major liability for them heading into that fall’s election. How often have DAs been arrested for something, and how often have DAs resigned for whatever the reason? It would be nice to know so we could have some context to evaluate Lehmberg’s case.

Also, while the max sentences Lehmberg can receive include jail time, it seems highly unlikely to me that a first time offender such as she will see the inside of a jail cell. What is the typical range of punishment for a first time DUI offense, in Travis County and across the state? I’m hardly an expert on this, but if you made me guess I’d assume that things like a fine, probation, alcohol counseling, and a suspension of her license would be in the mix, but not jail time. Those of you who do know more about this, please speak up in the comments. Does one’s perception of Lehmberg’s position change if that’s the actual punishment she’s likely to face? If she were County Attorney or Tax Assessor or some other office – I’m sorry, but that obscure law about drunk DAs needs to stay obscure – would that change your perception? These are the things I’d like to hear more about.

Finally, on the matter of the petition to remove Lehmberg, BOR has a good analysis of what it means and what the procedures are, as well as a copy of the petition itself. It’s not quite as straightforward as news reports have made it sound. Interestingly, there’s a connection between the law being cited to remove Lehmberg and the attempt by the HCDE to oust Michael Wolfe. Which didn’t work, for whatever that’s worth. Anyway, if nothing else this has the potential to be some entertaining political theater, so keep an eye on it.

Do people really still not understand the concept of “work” email?

I marveled at this story from last week, which could easily have been from a 1996 archive.

An administrator at St. Philip’s College resigned after an internal investigation found she violated the school’s email policy by sending hundreds of nonwork-related message to co-workers, many of them deemed sexually explicit and racially offensive.

Donna Laird, the now former radiography program director, resigned May 18, according to documents obtained by the San Antonio Express-News through open-records laws.

Laird, who could not be reached for comment, told investigators that she sent the email to “alleviate stress at work.”

Many of the notes included pictures of pets, patriotic slogans and motivational sayings, but others featured semi-nude women, animals having sex or masturbating, foul language, and jokes stereotyping men, women, rednecks and people of all races.

In sending those messages to a group of colleagues, Laird showed “gross disregard” for proper use of her work email account, investigators found.

Seriously? There are still people out there who send that stuff out from their work email address to their coworkers? Didn’t every organization in existence adopt workplace rules that tell employees not to do that back during the Clinton administration? How is it that anyone might think that sending these emails is a good idea in the year 2011?

Yes, yes, Chuck Rosenthal proved that such people still existed as of four years ago. There probably are more like these two still out there. Thankfully, they haven’t worked in my office in a long time. But maybe I’m the one that’s living in the bubble, and this is the way it really is. You tell me: Does your office have a Donna Laird or Chuck Rosenthal in it? I include people who persist in sending innocuous but lame and annoying emails – the “pets, patriotic slogans and motivational sayings” genre – in this classification. Sending from their personal email account to other personal accounts doesn’t count – I’m looking for workplace offenders. If this describes your workplace, leave a comment and let us know.

Grand juror disagrees with dismissal of arson charge against Francisca Medina

Given the grand jury issues that surrounded the original indictment of Supreme Court Justice David Medina in the matter of the fire that destroyed his house, this seems only fitting.

A grand juror who sat on one of two panels to indict the wife of Texas Supreme Court Justice David Medina for setting their home on fire said Saturday he was disappointed that charges against her had once again been dismissed.

“There were two independent grand juries, and from the facts determined, there was sufficient probable cause to retain indictments,” said Steve Howell, a retired oil and gas executive. “I would like to have a jury hear the facts. I am perfectly contented once a jury has heard the facts, to abide by a decision of a jury … I trust juries.”

Harris County District Attorney Pat Lykos denied politics had anything to do with her decision Friday to dismiss the charges against Francisca Medina. Instead, she said it was strictly new evidence that earned her approval.

Prosecutor Steve Baldassano said neither of the grand juries that heard the case had the new information.

Expert evidence recently given to Baldassano by the defense team – and agreed upon by at least one official from the Harris County Fire Marshal’s Office – indicates it could have been an electrical fire.

“If you can’t rule out an electrical fire as the cause, then you can’t prove arson,” said Lykos.

Arson cannot be ruled out either, said Baldassano, who emphasized that the defense’s expert witnesses were “highly regarded” in the field and also serve as experts for the state in other cases.

Howell, the grand juror, said the new information indicating the cause of the fire could have been electrical would have had little effect, if any, on his decision to indict because he had access to other evidence and testimony, which he would not discuss.

I presume that nothing precludes the possibility of charges being refiled in the future if the evidence warrants. This has been a truly weird case from the beginning. Murray Newman has more.

DA drops arson charges against Justice Medina’s wife

You may recall the saga of State Supreme Court Justice David Medina, who was indicted on a charge of arson after his house burned down, then had that charge dismissed by Chuck Rosenthal amid much controversy – see here for more links. Along the way, his wife Francisca was indicted as well last year. Now that charge Cameron Willingham, I can’t criticize that kind of caution on the DA’s part. Justice Medina still has other issues to deal with, but this one appears to be closed now.

When county officials cooperate

I was sent a copy of this story as a PDF a few days ago, and I’m glad to see (via Hair Balls) that it’s available online. It’s about the level of cooperation between Harris County District Attorney Pat Lykos and County Attorney Vince Ryan, and the positive effect it’s having on the operation of those offices and other areas of county government. It’s great to see, and a large turnaround from before, when Chuck “Right Ear” Rosenthal and Mike Stafford were in charge. Check it out.