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Devon Anderson

About that lost evidence

Sorry about that.

Mark Herman

The Harris County District Attorney’s Office has sent notices to lawyers in 10,000 closed criminal cases that evidence, which was kept in storage, may have been lost or destroyed between 2007 and 2016.

The bulk of the emails, which were sent Wednesday to lawyers for about 7,750 defendants, caused an uproar among defense attorneys but left Precinct 4 Constable Mark Herman scratching his head.

“We’ve already been through this,” Herman said Wednesday. “This all stems from a year and half ago. It’s old news.”

[…]

“Upon learning that evidence may have been lost or destroyed while in the custody of law enforcement, it was our duty to conduct a thorough review, which included manually going through thousands of records to determine which cases may have been affected,” according to a statement released Wednesday from the District Attorney’s Office. “After the recent completion of that process, it was also our duty to notify all defendants and defense lawyers involved.”

Since each of the 10,484 cases has been resolved, defense lawyers are scrambling to figure out what evidence may have been destroyed and when. If the evidence was destroyed before the case was resolved, it could be grounds for an appeal. If the case is being appealed, the destruction of evidence could hamper those proceedings.

See here, here, and here for the background. This may be old news in a sense, but that doesn’t mean it’s been resolved. I don’t see any reason why we would have considered it closed last year, without Kim Ogg getting a chance to review everything after she got elected. If this causes problems, the reason for those problems goes back a lot farther than last year. Better to make sure everything we know about what happened comes out, and then we can be done with it.

DA’s office ends trace case prosecutions

Good.

Kim Ogg

Harris County District Attorney Kim Ogg has stopped prosecuting thousands of so-called trace drug cases, which typically stem from glass pipes seized from users containing little more than residue of crack cocaine, officials said Thursday.

The recent change means it is not prosecuted at all, unless there are extenuating circumstances said Tom Berg, First Assistant District Attorney. Houston police officials have given the new policy their approval, but with an important caveat.

“We want to go after people who are a real danger to the community, violent against people, violent against property,” Berg said. “It’s a smarter practice that everybody agreed to go forward on without a great deal of controversy.”

Berg said several factors combined to push the policy change, including limited resources, a raft of exonerations in recent years because of erroneous field tests and the rise of lethal drugs. He singled out fentanyl, a chemical which is 100 times more powerful than heroin and is used to cheaply spike more expensive drugs.

“Fentanyl and carfentanil – horrible substances – potentially fatal substances on contact,” he said. “Inadvertent contact, in the context of trying to scrape up some crud out of carpet in a car, could have catastrophic effects on the officers. They could be inhaling it without knowing it.”

[…]

The change is being eyed with cautious optimism by police representatives who had previously argued against the change.

“We’re not opposed to it as long as the DA is going to hammer hard these (burglary of motor vehicle) suspects who are crackheads anyway,” said Ray Hunt, president of the Houston Police Officers Union. “These are the ‘trace case’ people, that’s who they are. They’re the people who are breaking into cars to steal change.”

The police union has argued that arresting people for drug possession because of residue on paraphernalia keeps them from burglarizing cars, homes and businesses.

In the past, much less than a gram of the illegal drug – often just scrapings – could be prosecuted as a felony adding 2,000 to 4,000 people a year to Houston’s crowded dockets.

Hunt said the district attorney’s office promised to vigorously prosecute car burglars in exchange for police support of the policy.

“If we start getting cases where we have BMV (burglary of a motor vehicle) suspects and it’s a crackhead with a pipe on them and that person gets one or two days in jail, then it’s a serious problem and they’re not living up to the deal,” Hunt said.

This was indeed a campaign promise of Ogg’s, and it had been the policy under Pat Lykos, before Devon Anderson put a stop to it. Getting buy in from the police union, however tentatively, is a big deal since they were a big part of the reason why it was so contentious under Lykos. Refocusing on property crimes is also a good move, as those offenses are seldom punished now and affect a lot of people in a tangible way. All in all, a big win. Let’s hope the follow-through is as successful. The Press has more.

OutSmart talks to Kim Ogg

Another good read about our new DA, one that goes into her personal background in some depth.

Kim Ogg

John Wright: Your father, Jack Ogg, was a longtime Texas state legislator, and your late mother was well-known for her charity work. What it was like coming out to your parents?

Kim Ogg: It was traumatic. My parents were of the generation—they felt like my being gay was their responsibility, and that they were morally accountable. I had grown up in politics, and I understood that being gay was a political liability to my father and family, and so it was excruciating. Our family broke apart for some time, but we’re so close that what that did was give me time to go grow up, which I did. I had been on my father’s “payroll” from birth to college, but the day I got out of college I was on my own, and I’ve been on my own ever since. My family and I didn’t see each other on anything but holidays after that for some time—almost four years.

Our family broke up, [but then] we came around. I quit being. . . I was a little militant. An example would be that I wore camouflage for almost a whole year. I was at war with the world. And then it turned out that to get and keep a good job, you needed to have a broader wardrobe.

[…]

In 1996, you ran for district judge as a Republican, and longtime antigay activist Steve Hotze endorsed your opponent in the primary. Were you gay-baited in that race?

They didn’t gay-bait me; they gay-crucified me. But they didn’t do it in print. They did it through a telephone and whisper campaign, and they injected a third candidate into the race. I did not interview with Hotze, and I never answered any questions for him, so I never lied about my homosexuality. [But] the whole courthouse knew. It was funny, they didn’t do an antigay mailer, but they did a whisper campaign. It was enough to force me into a primary runoff where extremists usually win, and so the more conservative candidate won.

Twenty years later, in 2016, you were gay-baited again by your Republican opponent, former district attorney Devon Anderson, and it became a major news story.

It was my lifelong fear, being called a lesbian in front of my entire hometown—4.5 million people, on television. It’s like showing up with no clothes on or something—that bad dream that you have. When it finally happened, I knew it was exploitable and could benefit me, but I had to magnify that thing that I was so afraid of. And so we just sent it out to everybody—it was so freeing. It was sort of like coming out to my family. At that point, you don’t have anything left to lose. You have everything to gain. I realized at that moment how much that fear—it wasn’t a false fear—but it felt so good to let it go and just send it out to the world: “Devon Anderson called me a lesbian.” Discrimination, no matter how you dress it up, is wrong. For Devon to have regressed to name-calling was indicative of her losing the election.

When you ran as a Republican in 1996, Republicans attacked you for having voted in Democratic primaries. When you ran as a Democrat in 2014 and 2016, you were criticized for having voted in Republican primaries. Talk about your partisan evolution.

I think the criticism has been that I have been disloyal to both parties, and what I would tell you is that I grew up in the Democratic Party. I was pretty frustrated with [Democrats] in the mid-’90s, and Republicans were promising this big tent, and I thought it sounded reasonable. It didn’t turn out to be true. In the second presidential campaign under George W. Bush, they really utilized gay marriage—it was used as a wedge issue nationally in 2004, and I would say that radicalized me to the Democratic perspective. I was never going to be for a party that stood for hate and that used discrimination as a platform, as a literal political platform. So, for 13 years, I’ve been a Democrat and stayed a Democrat, and I don’t intend to ever change.

There’s more, so go read it. It’s fascinating to me because I didn’t know a lot of this stuff. Partly this is because I wasn’t paying close attention to local politics in the 90s, and partly because Ogg herself didn’t talk about any of it during either of her campaigns. Hearing her talk now about how she was affected by the gay-baiting in the 2016 campaign, mild as it was in comparison to some other examples we’ve seen, is an eye-opener. Check it out.

Two unsatisfying articles about the 2016 Democratic sweep in Harris County

The Democratic sweep in Harris County has drawn some national attention, as writers from the left and right try to analyze what happened here last year and why Hillary Clinton carried the county by such a large margin. Unfortunately, as is often the case with stories about Texas by people not from Texas, the results are not quite recognizable to those of us who are here. Let’s begin with this story in Harper’s, which focuses on the efforts of the Texas Organizing Project.

Amid the happy lawyers, journalists, and other movers and shakers at the victory parties, one group of seventy-five men and women, who had arrived on a chartered bus, stood out. Most of them were Latinos, like Petra Vargas, a Mexican-born hotel worker who had spent the day walking her fellow immigrants to the polls. Others were African Americans, such as Rosie McCutcheon, who had campaigned relentlessly for the ticket while raising six grandchildren on a tiny income. All of them wore turquoise T-shirts bearing the logo top. Not only had they made a key contribution to the day’s results — they represented a new and entirely promising way of doing politics in Texas.

The Texas Organizing Project was launched in 2009 by a small group of veteran community organizers. Michelle Tremillo, a fourth-generation Tejana (a Texan of Mexican descent), grew up in public housing in San Antonio, where her single mother worked as a janitor. Making it to Stanford on a scholarship, she was quickly drawn into politics, beginning with a student walkout in protest of Proposition 187, California’s infamous anti-immigrant ballot measure. By the time she graduated, the elite university had changed her view of the world. “I always knew I was poor growing up, and I even understood that I was poorer than some of my peers that I went to school with,” Tremillo told me. What she eventually came to understand was the sheer accumulation of wealth in America and its leveling effect on the rest of the population: “We were all poor.”

Both Tremillo and her TOP cofounder Ginny Goldman, a Long Island native, had worked for ACORN, the progressive national community organization that enjoyed considerable success — registering, for example, half a million minority voters in 2008 — before becoming a target of calculated assaults by right-wing operatives. By 2009, the group was foundering, and it was dissolved a year later.

In response, the activists came up with TOP. Goldman, who was its first executive director, told me that TOP was designed to focus on specific Texan needs and realities and thereby avoid the “national cookie-cutter approach.” The organization would work on three levels: doorstep canvassing, intense research on policy and strategy, and mobilizing voter turnout among people customarily neglected by the powers that be.

[…]

The TOP founders and their colleagues, including another Stanford graduate, Crystal Zermeno, a Tejana math whiz whose mother grew up sleeping on the floor, began to ponder ways to change that. Might it be possible to mobilize enough voters to elect progressives to statewide office? For non-Republicans in Texas and elsewhere, the most galling aspect of recurrent electoral defeat has been the persistent failure of supposedly natural allies, specifically Latinos and African Americans, to show up at the polls. For years, Democratic officials and commentators had cherished the notion that natural growth in the minority population, which rose from 20 percent to nearly 40 percent of the U.S. population between 1985 and 2015, would inevitably put the party back in power. Yet these designated agents of change seemed reluctant to play their part. As I was incessantly reminded in Houston, “Demographics are not destiny.”

The problem has been especially acute in Texas, which produced the lowest overall turnout of any state in the 2010 midterm elections. Three million registered African-American and Latino voters stayed home that year, not to mention the 2 million who were unregistered. The result was a state government subservient to the demands and prejudices of Republican primary voters, and unrepresentative of the majority in a state where almost one in four children lived in poverty, 60 percent of public-school students qualified for free or subsidized lunches, and the overall poverty rate was growing faster than the national average. Following the crushing Republican victory in 2010, TOP launched an ambitious project to discover, as Zermeno put it, “who was not voting, and why.”

Digging deep into voter files and other databases, Zermeno confirmed that Texas contained a “wealth of non-voting people of color.” Most of them were registered, but seldom (if ever) turned up at the polls. The problem, she noted, was especially acute with Latinos, only 15 percent of whom were regular voters. In her detailed report, she calculated precisely how many extra voters needed to turn out to elect someone who would represent the interests of all Texans: a minimum of 1.1 million. Fortuitously, these reluctant voters were concentrated in just nine big urban counties, led by Harris.

Ever since the era of Ann Richards, Democrats had been focusing their efforts (without success) on winning back white swing voters outside the big cities. But Zermeno realized that there was no reason “to beat our heads against the wall for that group of people anymore, not when we’ve got a million-voter gap and as many as four million non-voting people of color in the big cities, who are likely Democrats.” By relentlessly appealing to that shadow electorate, and gradually turning them into habitual voters, TOP could whittle down and eliminate the Republican advantage in elections for statewide offices such as governor and lieutenant governor, not to mention the state’s thirty-eight votes in the presidential Electoral College. In other words, since the existing Texas electorate was never going to generate a satisfactory result, TOP was going to have to grow a new one.

There was, however, still another question to answer. Why were those 4 million people declining to vote? TOP embarked on a series of intensive focus groups, which were largely financed by Amber and Steve Mostyn, a pair of progressive Houston claims attorneys. (Their string of lucrative settlements included some with insurance companies who had balked at paying claims for Ike-related house damage.) Year after year, the Mostyns had loyally stumped up hefty donations to middle-of-the-road Democrats who doggedly pursued existing voters while ignoring the multitude who sat out elections all or most of the time. When TOP asked these reluctant voters about their abstention, the answer was almost always the same: “When I have voted for Democrats in the past, nothing has changed, so it’s not worth my time.” There was one telling exception: in San Antonio, voters said that the only Texas Democrat they trusted was Julián Castro, who ran for mayor in 2009 on a platform of bringing universal pre-K to the city, and delivered on his promise when he won.

“There’s this misunderstanding that people don’t care, that people are apathetic,” Goldman told me. “It’s so not true. People are mad and they want to do something about it. People want fighters that will deliver real change for them. That’s why year-round community organizing is so critical. People see that you can deliver real impact, and that you need the right candidates in office to do it, and connect it back to the importance of voting. It’s the ongoing cycle. We see winning the election as only the first step toward the real win, which is changing the policies that are going to make people’s lives better.”

Beginning with the 2012 election, TOP canvassers — volunteers and paid employees working their own neighborhoods — were trained to open a doorstep interview not with statements about a candidate but with a question: “What issue do you care about?” The answer, whether it was the minimum wage or schools or potholes, shaped the conversation as the canvasser explained that TOP had endorsed a particular candidate (after an intensive screening) because of his or her position on those very issues. These were not hit-and-run encounters. Potential voters were talked to “pretty much nonstop for about eight to ten weeks leading to the election,” according to Goldman. “They got their doors knocked three to five times. They got called five to seven times. They signed a postcard saying, ‘I pledge to vote.’ They circled which day they were going to vote on a little calendar on the postcard, and we mailed those postcards back to them. We offered them free rides to the polls. We answered all of their questions, gave them all the information they needed, until they cast a ballot. And what we saw was that the Latino vote grew by five percentage points in Harris County in 2012.”

Link via Political Animal. I love TOP and I think they do great work, but this article leaves a lot of questions unasked as well as unanswered. When Ginny Goldman says that the Latino vote grew by five percent in Harris County in 2012, I need more context for that. How does that compare to the growth of Latino registered voters in the same time period (which I presume is since 2008)? What was the growth rate in areas where TOP was doing its outreach versus areas where it was not? Do we have the same data for 2016? I want to be impressed by that number, but I need this information before I can say how impressed I am.

For all that TOP should be rightly proud of their efforts, it should be clear from the description that it’s labor intensive. If the goal is to close a 1.1 million voter gap at the state level, how well does the TOP model scale up? What’s the vision for taking this out of Harris County (and parts of Dallas; the story also includes a bit about the Democratic win in HD107, which as we know was less Dem-friendly than HD105, which remained Republican) and into other places where it can do some good?

I mean, with all due respect, the TOP model of identifying low-propensity Dem-likely voters and pushing them to the polls with frequent neighbor-driven contact sounds a lot like the model that Battleground Texas was talking about when they first showed up. One of the complaints I heard from a dedicated BGTX volunteer was that both the people doing the contact and the people being contacted grew frustrated by it over time. That gets back to my earlier question about how well this might scale, since one size seldom fits all. To the extent that it does work I say great! Let’s raise some money and put all the necessary resources into making it work. I just have a hard time believing that it’s the One Thing that will turn the tide. It’s necessary – very necessary – to be sure. I doubt that it is sufficient.

Also, too, in an article that praises the local grassroots effort of a TOP while denigrating top-down campaigns, I find it fascinating that the one political consultant quoted is a guy based in Washington, DC. Could the author not find a single local consultant to talk about TOP’s work?

Again, I love TOP and I’m glad that they’re getting some national attention. I just wish the author of this story had paid more of that attention to the details. With all that said, the TOP story is a masterpiece compared to this Weekly Standard article about how things looked from the Republican perspective.

Gary Polland, a three-time Harris County Republican party chairman, can’t remember a time the GOP has done so poorly. “It could be back to the 60’s.” Jared Woodfill, who lost the chairmanship in 2014, does remember. “This is the worst defeat for Republicans in the 71-year history of Republican party of Harris County,” he said.

But crushing Republicans in a county of 4.5 million people doesn’t mean Democrats are on the verge of capturing Texas. In fact, Democratic leaders were as surprised as Republicans by the Harris sweep. But it does show there’s a political tide running in their direction.

Democratic strategists are relying on a one-word political panacea to boost the party in overtaking Republicans: Hispanics. They’re already a plurality—42 percent—in Harris County. Whites are 31 percent, blacks 20 percent, and Asians 7 percent. And the Hispanic population continues to grow. Democrats control the big Texas cities—Dallas, San Antonio, El Paso, to name three—thanks to Hispanic voters.

But in Houston, at least, Democrats have another factor in their favor: Republican incompetence. It was in full bloom in 2016. Though it was the year of a change election, GOP leaders chose a status quo slogan, “Harris County Works.” Whatever that was supposed to signal, it wasn’t change.

“It doesn’t exactly have the aspirational ring of ‘Make America Great Again’ or even Hillary’s ‘Stronger Together,'” Woodfill said. “It is very much a message of ‘everything is okay here, let’s maintain the status quo.’ People were confused and uninspired.”

A separate decision was just as ruinous. GOP leaders, led by chairman Paul Simpson, panicked at the thought of Trump at the top of the ticket. So they decided to pretend Trump was not on the ticket. They kept his name off campaign literature. They didn’t talk about him. And Trump, assured of winning Texas, didn’t spend a nickel in the Houston media market. It became an “invisible campaign,” Polland said. “There were votes to be had,” Polland told me. They were Trump votes. They weren’t sought.

This strategy defied reason and history. Disunited parties usually do poorly. GOP leaders gambled that their candidates would do better if the Trump connection were minimized. That may have eased the qualms of some about voting Republican. But it’s bound to have prompted others to stay at home on Election Day. We know one thing about the gamble: It didn’t work. Republicans were slaughtered, and it wasn’t because the candidates were bad.

“Our overall ticket was of high quality, but no casual voter would know it since the campaign focus was on ‘Harris County Works,’ and Houston doesn’t,” Polland insisted. “Did we read about any of the high-quality women running? Not much. Did we read about issues raised by Donald Trump that were resonating with voters? Nope. Did the Simpson-led party even mention Trump? Nope.”

[…]

Republican Rep. Kevin Brady, the chairman of the House Ways and Means Committee, said the “holy grail” for Democrats, both in Texas and nationally, is winning the Hispanic vote. “They did that somewhat successfully” in 2016, he said in an interview. Unless Democrats attract significantly more Hispanic voters in 2018, Brady thinks Republicans should recover. His district north of Houston lies partly in Harris County.

For this to happen, they will need to attract more Hispanic voters themselves. They recruited a number of Hispanics to run in 2016, several of them impressive candidates. All were defeated in the Democratic landslide.

I have no idea what the author means by “a number of Hispanics” being recruited, because by my count of the countywide candidates, there were exactly two – Debra Ibarra Mayfield and Linda Garcia, both judges who had been appointed to the benches on which they sat. Now I agree that two is a number, but come on.

Like the first story, this one talks about the increase in Latino voting in Harris County in 2016 as well. Usually, in this kind of article, some Republican will talk about how Latinos aren’t automatically Democrats, how it’s different in Texas, and so on. In this one, the turnout increase is met with a resigned shrug and some vague assurances that things will be better for them in 2018. Maybe no one had anything more insightful than that to say – it’s not like Jared Woodfill is a deep thinker – but it sure seems to me like that might have been a worthwhile subject to explore.

As for the griping about the county GOP’s strategy of not mentioning Trump, a lot of that is the two previous GOP chairs dumping on the current chair, which is fine by me. But honestly, what was the local GOP supposed to do? Not only was their Presidential candidate singularly unappealing, their two main incumbents, Devon Anderson and Ron Hickman, weren’t exactly easy to rally behind, either. Focusing on the judges seems to me to have been the least bad of a bunch of rotten options. Be that as it may, no one in this story appeared to notice or care that some thirty thousand people who otherwise voted Republican crossed over for Hillary Clinton, with a few thousand more voting Libertarian or write-in. Does anyone think that may be a problem for them in 2018? A better writer might have examined that a bit, as well as pushed back on the assertion that more Trump was the best plan. It may be that, as suggested by the recent Trib poll, some of these non-Trumpers are warming up to the guy now that he’s been elected. That would suggest at least some return to normalcy for the GOP, but the alternate possibility is that they’re just as disgusted with him and might be open to staying home or voting against some other Republicans next year as a protest. That would be a problem, but not one that anyone in this story is thinking about.

So there you have it. At least with the first story, I learned something about TOP. In the second one, I mostly learned that Gary Polland and Jared Woodfill don’t like Paul Simpson and have him in their sights for next year. That will provide a little mindless entertainment for the rest of us, which I think we’ll all appreciate. It still would have been nice to have gotten something more of substance.

Back to Buzbee

Looks like we’re not done with this yet.

Kim Ogg

Prominent Houston lawyer Tony Buzbee on Monday accused Harris County District Attorney Kim Ogg of “playing politics,” saying prosecutors are trying to revive a DWI case against him that has already been expunged.

Buzbee said Ogg’s office has filed a sealed motion seeking to reopen the criminal case by overturning a decision last month by a civil court judge that expunged the case files.

The district attorney’s office declined to comment on the details of the motion.

“We have filed a document that was sealed by the clerk,” said First Assistant District Attorney Tom Berg by e-mail. “As a result, we are not at liberty to discuss that document.”

Buzbee said Ogg singled him out because outgoing District Attorney Devon Anderson personally dismissed his case in the days before she left office at the end of the year.

“Ms. Ogg’s new position is that she didn’t personally sign the agreed motion, and the assistant DA who did so lacked her express permission,” he said Monday by email. “Of course, he says he did have that authority. So, I guess those two can fight about that.”

He called information that has been released about his case “bunk” and said his driving while intoxicated case last year was dismissed not as a political favor by the outgoing Republican but “due to multiple irregularities.”

[…]

Buzbee was arrested a year ago on suspicion of DWI and vowed to go to trial. Instead, Anderson personally dismissed the case, saying the attorney had fulfilled the obligations of a pre-trial intervention program.

However, his conditions were less onerous than the obligations for others who went through Anderson’s DWI intervention program, called DIVERT, which typically lasted a year. And he was allowed to expunge his case immediately, though others have been required to wait two years.

The diversion contract, which typically is placed in the public court file, was not filed publicly. The Houston Chronicle filed a request under the Texas open records law to obtain a copy of the contract, but Buzbee was able to block the request by claiming a third-party interest.

The DA’s office under Anderson then sent it to the Texas Attorney General’s Office for a ruling on whether it was public information; the ruling is pending.

Last month, the public file was sealed by an expunction approved by civil court Judge Robert Schaffer. The criminal file reappeared online Monday, however, on the Harris County District Clerk’s website.

Buzbee said Monday that a motion has been filed under seal in the civil case to reverse the expunction.

“In that motion to set aside, the DA takes a position that her assistant DA had no authority to agree to the expunction – which is an outright misstatement of the law, and which is factually untrue because he claims he did in fact have her express permission,” Buzbee said.

See here and here for the background. The way this case was handled sure looked weird, and the timing of it all, which was after Devon Anderson lost her bid for re-election but before Kim Ogg was sworn in, was awfully convenient. It may well be that there was nothing untoward and that the case against Buzbee was a loser that was never going anywhere, but I’m not inclined to just take his word for it. That said, Kim Ogg has a lot of big fish to fry, and she started out with a big target on her back as the first Democrat to be DA in a million years who has big reform plans and who fired a bunch of her predecessor’s people. Oh, and she’s also a lesbian, which drives some people absolutely crazy. My point is, she already has plenty of enemies, and plenty of obstacles to achieving her goals as DA. Tony Buzbee is an obnoxious blowhard, and the circumstances of his case are extremely fishy. But unless some actual malfeasance is uncovered, I don’t know how much time and energy it’s worth to pursue.

Ogg launches her pot prosecution reform program

We’ve been waiting for this.

Kim Ogg

The Harris County district attorney’s plan to decriminalize small amounts of marijuana drew reactions swift and strong Thursday from both sides of the debate.

District Attorney Kim Ogg made the announced Thursday backed by a bevy of local officials, including Houston Mayor Sylvester Turner, Houston Police Chief Art Acevedo, Sheriff Ed Gonzalez and Harris County Commissioner Rodney Ellis.

“The sky will not fall,” Acevedo said as he voiced his support. “There are already critics out there. We’ve been down this path before with my old department. Rather than see an uptick in crime, in the city of Austin we reduced violent crime between 2007 and 2014 by 40 percent.”

Bellaire Police Chief Byron Holloway, however, said the program seems similar to a program former District Attorney Devon Anderson put into place.

“At first blush, I’m not seeing a difference,” he said. “This is basically giving deferred adjudication up front.”

Yes, that’s my impression as well. This earlier story gives the details.

The policy, set to begin March 1, means that misdemeanor offenders with less than four ounces of marijuana will not be arrested, ticketed or required to appear in court if they agree to take a four-hour drug education class, officials said.

Ogg said the county has spent $25 million a year for the past 10 years locking up people for having less than 4 ounces of marijuana. She said those resources would be better spent arresting serious criminals such as burglars, robbers and rapists.

“We have spent in excess of $250 million, over a quarter-billion dollars, prosecuting a crime that has produced no tangible evidence of improved public safety,” she said. “We have disqualified, unnecessarily, thousands of people from greater job, housing and educational opportunities by giving them a criminal record for what is, in effect, a minor law violation.”

Officials have said it could divert an estimated 12,000 people a year out of the criminal justice system and would save officers hours of processing time now spent on low-level cases. More than 107,000 cases of misdemeanor marijuana cases have been handled in the past 10 years, officials said.

Since there is no arrest, there is no arrest record. Since there is no court date, there are no court documents connected to the encounter. The plan calls for officers to seize the marijuana and drop it off at a police station at the end of their shift, along with a record of the encounter in case the suspect does not take the class.

“You do not get charged with anything,” Assistant District Attorney David Mitcham, who heads the DA’s trial bureau, said Wednesday. “You have a pathway where you can avoid going to court.”

[…]

At the sheriff’s office, the new policy will save up to 12 hours of processing time per month for as many as 1,000 suspects, a move that will ease the workload on administrators and jailers who transfer and process inmates, officials said.

“We’re really encouraged by these swift actions by the district attorney,” said sheriff’s spokesman Ryan Sullivan. “And we are looking forward to working with Harris County’s criminal justice leadership identifying common-sense solutions to our broken criminal justice system.”

Sullivan said the move would likely not affect the jail population significantly, since most misdemeanor marijuana offenders move quickly in and out of jail. On Wednesday, just 12 people were jailed on misdemeanor marijuana offenses and unable to make bail, he said.

Elected district attorneys are given wide latitude in their discretion about how to enforce laws in their jurisdictions. Diversion programs, such as drug courts, have been widely used across Texas, and Austin has launched a “cite and release” program in which low-level drug offenders are given tickets and required to appear in court.

Under the new local program, police would identify a suspect to make sure they do not have warrants or other legal issues, then would offer them the option of taking the drug education class. If the suspect takes the class, the drugs are destroyed and the agreement is filed away.

A suspect would be able to take the class over and over again regardless of past criminal history, officials said.

The new program will keep police on the streets longer each day and reduce costs for lab testing of the drugs, Mitcham said.

If the suspect does not take the class, the contraband will be tested, and prosecutors will file charges and issue an arrest warrant. Offenders could then face up to one year in jail if convicted of the Class A misdemeanor.

The model to think about here is traffic tickets – speeding, running a stop sign, that sort of thing. You get a ticket instead of getting arrested (generally speaking, of course), and you have various options for disposing of the ticket without it appearing on your record. As with speeding tickets but unlike the program put in place by former DA Devon Anderson, you can get a do-over if you get cited again. Given all the strains on the jail lately, keeping some number of mostly harmless potheads out of jail, while keeping cops on the street instead of hauling said potheads downtown for booking, sure seems like a win to me.

As for Montgomery County DA Brett Ligon, whose press release is here, last I checked Montgomery County was not part of Harris County. State law allows for police departments to write citations for low-level drug busts instead of making arrests, and prosecutors have a lot of discretion in how they handle criminal charges. He’s as free to do his thing as Kim Ogg is to do hers, as long as the voters approve. Well, as long as the Lege approves as well, which given that Dan Patrick is having the vapors over this, could change. As we are seeing with many things, the Dan Patricks are out of step with the mainstream. It may take awhile, but that will catch up to them eventually. The Press and Grits for Breakfast have more.

Ogg to review Temple case

We’ll see how this goes.

Kim Ogg

Harris County District Attorney Kim Ogg said Wednesday she will personally lead a review of the case of David Temple, whose conviction of murdering his pregnant wife was overturned by the state’s highest court amid findings of prosecutorial misconduct, before deciding if her office will retry the former Katy football star and Alief high school coach.

Temple, 48, was released from prison Dec. 28, but remains charged with murder in the 1999 shooting death of his wife, Belinda Lucas Temple. He is free on $30,000 bail while the district attorney determines how to proceed.

After a court appearance Wednesday, Temple said he wanted to be declared actually innocent in Belinda Temple’s murder.

His attorney, Stan Schneider, said the review panel will be composed of lawyers and investigators in the DA’s office, two of whom – Steve Clappart and John Denholm – have previously investigated the case and have publicly declared their belief that Temple was innocent.

Schneider said the other two members of the panel are veteran trial prosecutor Donna Cameron, who initially took the Temple case to a grand jury that investigated the allegations without result, and appellate attorney Andrew Smith, who has spent years opposing Temple’s attorneys and arguing that their client is guilty and got a fair trial.

Temple’s defense team said they expect a thorough review from Cameron, Smith, Denholm and Clappart.

“They are quite knowledgeable about the case,” Schneider said.

Ogg and staffers will likely spend months reviewing mountains of evidence from the lengthy investigation and reams of trial transcripts from weeks of testimony before moving forward with a new trial or dismissing the case.

“The district attorney’s office decides whether to pursue criminal charges based on evidence,” Ogg said in a statement. “The David Temple file consists of thousands of pages and it is important to review them thoroughly. I will personally conduct the review.”

[…]

Temple’s declaration that he is innocent stands in stark contrast with the beliefs of the family of the victim. The Lucas family have long maintained that Temple is guilty of killing his wife, which is what a Harris County jury determined in 2007.

“They’ve never once doubted what the jury came up with,” said Andy Kahan, with the City of Houston’s Crime Victims Office. “There’s no ifs, ands or buts, from their perspective, that the outcome was correct.”

See here for the background. Ogg is going to be criticized no matter what she chooses to do, so she may as well take her time and reach a decision she’s confident in. Temple’s statement that he wants to be exonerated and will pursue a ruling that he is actually innocent will be a much tougher bar for him to clear. Ogg may reasonably oppose that even if she doesn’t try him again. Like I said, we’ll see what happens.

Kim Ogg’s swearing in

New DA Kim Ogg took her oath of office at an earlier time than the other Democratic elected officials, then had a more celebratory followup event afterward.

Kim Ogg

Ogg, who defeated incumbent Republican Devon Anderson in November, was first sworn into office just after the stroke of midnight on New Year’s Day.

But Monday’s event gave Ogg the opportunity to thank the people who supported her during her campaign and on the path ahead.

” ‘So how does it feel to be the Harris County DA?’ That is the question that nearly everyone is asking. The answer is gratitude,” she said.

She reiterated many of her campaign promises, such as ending the jailing of suspects in low-level, nonviolent drug cases. Ogg plans to implement what is essentially a “cite and release” program in which police officers would ticket offenders caught with small amounts of marijuana.

She also pledged to increase transparency in police shootings and to ramp up prosecutions of burglars and white-collar criminals.

[…]

During the inauguration ceremony, Ogg said she would seek justice above all, even convictions.

She elicited thunderous applause when she promised to uphold the Michael Morton Act, a 2014 law named after a Williamson County man who was convicted in 1987 of killing his wife but was exonerated in 2011 by DNA evidence.

The law requires prosecutors to share evidence with defense attorneys.

Ogg said she would restore integrity back into the DA’s Office by treating all crime victims with dignity, by using taxpayer money wisely and recognizing mental illness as a public health concern.

“Welcome to a new era of criminal justice,” Ogg said.

Not a whole lot new here – this is all stuff Ogg campaigned on. It’s all a matter of how she goes about it and how effective she is at achieving the goals she has set. But in case you were wondering why the other story only mentioned Ogg in passing, now you know.

Ogg begins assembling her team

She has a lot of positions to fill, and a lot of work to do.

Kim Ogg

Several well-known defense lawyers will take top posts in the Harris County District Attorney’s Office under incoming DA Kim Ogg, her transition team announced Friday.

Vivian King, a prominent attorney who was an accountant for 10 years before becoming a lawyer, will be chief of staff in a reorganized office. She will oversee budgets, operations and other day-to-day running of the office.

David Mitcham will be Interim First Assistant and trial bureau chief, overseeing the majority of the 300 prosecutors in the office, supervising the trial bureaus and special prosecution divisions.

Dividing those responsibilities between two positions is a new way to organize the office. Historically, the elected district attorney’s second-in-command – the first assistant – has handled all of those duties.

Other notable hires include Jim Leitner, who was First Assistant under former DA Pat Lykos and will supervise the intake and grand jury divisions.

Other well-known attorneys who will take top posts include JoAnne Musick, who will supervise the sex crimes unit, and Carvana Cloud, who will be over the family criminal law unit, the division that prosecutes domestic violence.

Former Houston City Councilmember Sue Lovell will work as a special contractor as a government affair liaison.

See here for some background. This earlier version of the story includes a few other names. I can’t say I’m crazy about the Leitner appointment, since he just tried to oust Vince Ryan as County Attorney, but the rest look pretty solid. Tapping the defense bar for talent may look unusual, but it’s not. Former prosecutors become defense attorneys all the time – it’s just two sides of the same coin – and both Ogg and Vivian King had spent time as assistant DAs in the past. And if your mandate is to clean up and reform a DA’s office that really needs it, then you are by necessity going to look outside that office for the people who will help you carry it out. Maybe having a few people in the DA’s office who understand there’s more to justice than getting convictions is what that place needs.

David Temple released on bond

We’ll see what happens next.

More than 17 years after the shooting death of his pregnant wife, former football coach David Temple walked out of the Harris County jail Wednesday and into the waiting arms of his family, ready to stand trial again if necessary for a murder he steadfastly maintains he didn’t commit.

Wearing a bright red shirt, Temple embraced his mother, father and two brothers, telling the media his release was possible only through God and the support of his family and attorneys.

“It’s been a long journey, and fortunately a portion of that journey has been completed,” Temple said. “We’re waiting for justice to be served, and for the people who put me there, who lied and cheated, be held accountable … .”

But Temple’s appellate attorney, Stan Schneider, cut him off, advising him not to speak further about the case.

Temple, 48, was released on a $30,000 bond and is set to appear in court Jan. 4 to show he will cooperate with any potential retrial or other proceedings. His conviction was overturned by the state’s highest criminal appeals court amid findings of prosecutorial misconduct.

[…]

Temple was convicted and sentenced to life in prison in 2007 after a volatile trial that pitted prominent defense attorney Dick DeGuerin against legendary prosecutor Kelly Siegler, who later became the star of her own TV show.

The Texas Court of Criminal Appeals concluded last month that prosecutors withheld significant evidence from defense attorneys, including information about an alternative suspect. Siegler has defended her actions in the case but could not be reached for comment.

Incoming District Attorney Kim Ogg – who takes office next week – has indicated her office will review the case and decide whether to proceed with a new trial.

Temple was granted a new trial late last month, with the district court ruling that found prosecutorial misconduct coming down last July. It will be interesting to see how Kim Ogg handles this, as it’s not clear to me there’s an obviously correct path to follow. One could reasonably conclude that despite the misconduct findings, Temple is still guilty and should be tried again, this time with all of the known evidence available to the defense so there are no further questions about the DA’s behavior. One could also conclude that even if Temple did do it, the odds of convicting him now are too slim to be worth the investment of resources it would take to re-try him, and he did serve nine years so it’s not like he got away with it. I don’t envy Ogg the decision.

One more thing:

The appeals court ruled DeGuerin was denied access to approximately 1,400 pages of offense reports, including an investigation of another possible suspect – a teenage neighbor accused of stealing two shotguns similar to the one used in the murder.

It was the fifth time since 2015 that the state’s highest appeals court has ordered a review of murder convictions based on prosecutorial misconduct in the Harris County District Attorney’s office.

Emphasis mine. Whatever you think of Kim Ogg or Devon Anderson or Pat Lykos or whoever else, if at the end of her tenure we can say that the Court of Criminal Appeals did not question any of her murder convictions based on prosecutorial misconduct, she will have accomplished something significant. The Press has more.

More on the Buzbee DUI saga

This just keeps getting weirder.

Devon Anderson

“It appears to have been an under-the-table deal with Devon Anderson,” said Tyler Flood, the president of the Harris County Criminal Lawyer’s Association. “I already have clients calling me saying they want the ‘Tony Buzbee deal.'”

Flood and other defense lawyers have questioned the treatment Buzbee received from Anderson and the judge presiding over the case.

[…]

A request to the district attorney’s office for a copy of the pretrial diversion contract, which outlines conditions and consequences of failing to meet those conditions, was sent to the office’s general counsel, who said lawyers for Buzbee have objected to its release. Such contracts generally are publicly available. The office of general counsel said Buzbee’s lawyers have informed it that they will seek an order from the Texas Attorney General’s Office forcing the district attorney to withhold the contract.

[…]

Another reason this case and its resolution is unusual is that the judge presiding over it is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. County Court-at-Law Judge Bill Harmon is opposed to any DWI pretrial diversion program and often cites Harris County’s record number of drunken-driving fatalities as the reason.

When a DWI case eligible for the pretrial diversion program lands in his court, it is often transferred to a different court. That did not happen in Buzbee’s case.

Earlier this week, Harmon acknowledged that he signed the dismissal forms and said he had not approved any diversion for DWI suspects. He said he would continue to refuse to participate in the program.

It’s those inconsistencies that bother Flood and other members of the Harris County Criminal Lawyers Association.

“Our target is not Tony Buzbee. That’s not what HCCLA is about. He hired good lawyers and got a good result,” Flood said. “Our problem is the appearance of impropriety between the district attorney and the judge.”

The deal Buzbee was able to obtain from Anderson was extraordinary, Flood said.

“He’s the only person in the whole county who is not excluded from filing for an expunction immediately after his case is dismissed on a DWI on a pretrial intervention.”

See here for the background. It’s weird enough that any of this happened, but it’s possible to imagine that there’s nothing untoward about any of it, it was just maybe handled in a clumsy fashion. But for Buzbee’s attorney to then file to keep the normally-public pretrial diversion contract under wraps, I mean that’s like putting up a giant blinking neon sign saying “THERE IS SOMETHING SUSPICIOUS HERE THAT WE DON’T WANT YOU TO SEE”. Under no circumstances should that file be withheld from public scrutiny. Let’s make the facts known, and then we can see if there’s something that requires a response.

More DA drama

I’m not sure yet what to make of this.

Kim Ogg

Incoming Harris County District Attorney Kim Ogg accused three prosecutors Tuesday of trying to sabotage criminal cases by telling victims their cases were in jeopardy, and called for an investigation into what she said was “political retribution” for being fired.

The allegations came days after Ogg notified nearly 40 prosecutors that she would not keep them on when she takes office in January.

The preemptive firings and the Tuesday’s accusations illustrate the amount of bad blood between Ogg and current District Attorney Devon Anderson and her loyalists in the office following a bitter election campaign in which the Ogg questioned the integrity and ethics of the office under the incumbent.

“It appears that some of these individuals are sabotaging their own cases,” Ogg said at a press conference in front of Houston’s criminal courthouse Tuesday. “It’s the use of victims as pawns by disgruntled employees that shows, not just a profound disrespect for other people, but a lack of professionalism that won’t go unaddressed.”

The three prosecutors denied any wrongdoing and blasted Ogg for publicizing their names without investigating the claims.

“I have always tried to be ethical and have never been a win-at-all-costs prosecutor,” said Gretchen Flader, one of the three. “I have done what I thought was right and just every day. I am saddened and sickened by all that has happened.”

See here for some background. An earlier version of the story, before any of the prosecutors Ogg named had responded, sounded a lot worse and included a quote from County Judge Ed Emmett basically telling them to cut it out. The initial Houston Press story was in a similar vein. Read that and compare it to the Wednesday version, which sports the headline “Ogg Will Investigate Fired Prosecutors Without Asking for Their Side of Story”, and it will give you pause.

So it’s a little hard to say right now if Ogg was legitimately putting a stop to bad behavior, or overreacting to something that wasn’t a big deal. It seems to me that if it really is the latter, that this was a standard procedure, then there had to have been a failure of communications somewhere. Maybe Anderson’s office didn’t adequately brief Ogg on what they were doing to transition cases, maybe the prosecutors didn’t explain the process to the victims in a way they fully understood, maybe Ogg misinterpreted what she was told by the victims who did call her. I don’t have enough information to say. If this was bad behavior on the prosecutors’ part, I’m not sure why Ogg wouldn’t talk to them before taking any other action beyond telling them to stop and for all communications to be preserved. Whatever this turns out to be, I hope Ogg handles it carefully going forward. Mark Bennett and Marc Campos have more.

Do the words “appearance of impropriety” mean anything to you?

Seriously?

Devon Anderson

Outgoing Harris County District Attorney Devon Anderson personally has dismissed the drunken-driving case against prominent Houston lawyer Tony Buzbee.

Buzbee, who was arrested on March 31, had his case dismissed Dec. 9, after completing “pretrial intervention” a type of informal probation that, if successfully completed, means a case will be tossed. It is common among first offenders, especially shoplifters or other nonviolent crimes.

On Monday, Anderson stood by her decision and issued a brief statement: “Based on the circumstances of the case, this was the right thing to do. He qualified for pretrial intervention and completed all of the requirements typically mandated for a first offender DWI defendant,” she said. “He did not contribute to my campaign in 2016 cycle.”

The dismissal raised eyebrows around the courthouse for several reasons.

First, the elected district attorney signed off on the case personally, which is exceedingly rare, especially misdemeanors.

Second, the DWI pretrial intervention program, which lets people walk away from their first offense without a conviction, generally lasts a year. Buzbee went from arrest to completion in just over 8 months.

Also, the judge presiding over the case is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. The DWI pretrial diversion program, formerly known as DIVERT, has firmly drawn guidelines – the terms of which generally are spelled out in a contract that a judge signs off before it begins. There is no such contract in Buzbee’s file.

Generally, when a DWI case that is eligible for the pretrial diversion program falls in County Court at Law Judge Bill Harmon’s court, it is transferred to a different court. That did not happen in Buzbee’s case.

[…]

Buzbee said it was “silly” to link political connections to a dismissal by the elected district attorney 21 days before she leaves office.

“I give money to most of the politicians in Houston and the state of Texas. To try to connect one thing to the other is silly.”

Courthouse observers said Buzbee’s statement makes the dismissal look like a gift from Anderson as she prepares to leave the office.

“Based on what (Buzbee) said, this is definitely not a diversion. If it’s not, then it is nothing but a political favor,” said JoAnne Musick, past-president of the Harris County Criminal Lawyer’s Association. “Unless (Anderson) just completely lied on a court document, because it appears, on the dismissal, that he completed a diversion – that he participated in some sort of program in lieu of prosecution.”

Buzbee claimed that the case was dismissed for lack of evidence, but that’s not what the form indicates. Maybe there’s nothing to any of this – I’m not a lawyer, I don’t know how these things work – but if so, it would be nice to hear that from someone who isn’t Devon Anderson or Tony Buzbee. Maybe there are more people who got a similar “early dismissal” of their nominally year-long diversion program. Maybe Devon Anderson had a specific reason for intervening on this one case. Maybe the dismissal form was filled out incorrectly and it really was a lack of evidence. Maybe there’s something else we don’t know about. Because if not, on the surface this sure looks like special treatment for a big shot. The Press has more.

(There’s now a bigger controversy breaking out at the DA’s office. I didn’t have a chance to get to it yesterday, but I’ll have something to say about it tomorrow.)

Ogg does some housecleaning

I’m sure there will be more of this to come.

Kim Ogg

Harris County’s new district attorney made clear Friday that she will fire dozens of prosecutors in a massive shake-up when she takes office on Jan. 1.

Kim Ogg, who was elected in November as the county’s chief prosecutor, notified nearly 50 prosecutors and staffers Friday that their services will not be needed, according to sources connected to the office.

The terminations have long been expected as Ogg – who ran on a campaign of reform – installs her own lieutenants and administrators.

The district attorney’s office employs about 300 lawyers, with a well-established hierarchy that includes bureau chiefs, division chiefs and trial chiefs.

Several courthouse observers said emails went out to chiefs prosecutors, senior prosecutors and staff, such as investigators, notifying them that they would not be employed in Ogg’s administration although no specific names or numbers could immediately be independently verified.

Felony Judge Kristin Guiney, who lost her bid for re-election in the November election, posted on Facebook about the shake-up.

“A lot of exemplary prosecutors were told their services were no longer needed in the new administration,” she posted.

That was the early version of the story. The morning paper version has more details.

“Change is coming,” she told reporters after news broke that more than 10 percent of the 329 lawyers in the DA’s office would not be returning in the new year. “Like any good team that has suffered some under-performing seasons, we’re changing management. My administration is heading in a new direction.”

The terminations had been expected as Ogg – who ran on a campaign of reform – installs her own lieutenants and administrators with a new organizational structure.

Ogg said outgoing DA Devon Anderson’s administration asked that initial decisions be made before Ogg is sworn in.

The timing of the release, however, gave Anderson an opportunity to take a shot at her successor, releasing a statement that the new administration “fired by email 37 experienced prosecutors 9 days before Christmas.”

“With her first act as District Attorney, Ogg is endangering the citizens of Harris County,” Anderson said. “The dedicated prosecutors let go today had a combined 685 years of service.”

Ogg swiped back, noting that Anderson had refused to meet with her until Friday.

“The announcement by the current administration that this somehow makes people less safe is irresponsible,” Ogg said. “‘This decision does not make people less safe. It’s simply a change in management. The business of the DA’s office will go on.”

Widespread firings or personnel changes are not uncommon when a new official takes over a large agency. The DA’s office, which had been stable for decades, first saw massive change in 2008 when Republican Pat Lykos fired her predecessor’s top lieutenants after also winning on a reform platform.

Under Anderson, the district attorney’s office has a hierarchy that includes about six bureau chiefs, more than 20 division chiefs and dozens of trial and section chiefs who oversee staff lawyers.

Ogg got rid of a number of Anderson loyalists and some prosecutors tied to scandals that have erupted over Anderson’s three-year tenure.

Ogg said the majority of her termination decisions fell on longtime employees who worked as supervisors. She declined to discuss specific employees but said her primary focus was to eliminate management positions created by her predecessor.

“It’s a difficult process and one that is entirely necessary,” she said. “Of the lawyers who were released or given the opportunity to resign, most are eligible to retire. Few of them handle cases on a day-to-day basis.”

I noted before that this happened after Pat Lykos’ election in 2008 as well. It’s unfortunate for the people who are not being retained, but the writing has been on the wall for a long time. Ogg will be judged by how things go after January 1. She has a vision for what she wants to achieve, she won a resounding victory based on that, and she will get her chance to implement it. Murray Newman has an understandably different take, and the Press has more.

Precinct analysis: Ogg v Anderson

Kim Ogg had the second highest vote total in Harris County this year. Let’s see how that looked at a more granular level.


Dist  Anderson      Ogg  Anderson%    Ogg%
==========================================
CD02   156,027  117,810     56.98%  43.02%
CD07   135,065  118,837     53.20%  46.80%
CD09    26,881  106,334     20.18%  79.82%
CD10    78,602   38,896     66.90%  33.10%
CD18    47,408  154,503     23.48%  76.52%
CD29    36,581   93,437     28.14%  71.86%
				
SBOE6  328,802  277,271     54.25%  45.75%
				
HD126   34,499   26,495     56.56%  43.44%
HD127   46,819   26,260     64.07%  35.93%
HD128   39,995   18,730     68.11%  31.89%
HD129   40,707   27,844     59.38%  40.62%
HD130   57,073   23,239     71.06%  28.94%
HD131    7,301   38,651     15.89%  84.11%
HD132   36,674   31,478     53.81%  46.19%
HD133   46,242   29,195     61.30%  38.70%
HD134   43,962   45,142     49.34%  50.66%
HD135   31,190   28,312     52.42%  47.58%
HD137    8,728   18,040     32.61%  67.39%
HD138   26,576   24,189     52.35%  47.65%
HD139   12,379   39,537     23.84%  76.16%
HD140    6,613   20,621     24.28%  75.72%
HD141    5,305   32,677     13.97%  86.03%
HD142   10,428   34,242     23.34%  76.66%
HD143    9,100   23,434     27.97%  72.03%
HD144   10,758   16,100     40.06%  59.94%
HD145   11,145   22,949     32.69%  67.31%
HD146   10,090   38,147     20.92%  79.08%
HD147   12,156   45,221     21.19%  78.81%
HD148   17,538   29,848     37.01%  62.99%
HD149   15,352   27,535     35.80%  64.20%
HD150   47,268   28,160     62.67%  37.33%
				
CC1     73,521  240,194     23.44%  76.56%
CC2    123,178  126,996     49.24%  50.76%
CC3    187,095  164,487     53.22%  46.78%
CC4    204,103  164,355     55.39%  44.61%
Kim Ogg

Kim Ogg

Ogg received 696,955 votes, which is about 11K fewer than Hillary Clinton, while Anderson drew 588,464 votes, or 42.5K more than Donald Trump. I believe the differences can be accounted for as Ogg not getting as many crossovers as Clinton, while Anderson picked up most of the Gary Johnson supporters. Compare the results from the Presidential race and the judicial races to get a feel for this. In particular, compare the Presidential numbers in HD134 to the same numbers above. Ogg got 4,765 fewer votes than Clinton in the district. Add to that the 4,044 Johnson votes for a total of 8,809, and then observe that Anderson did 8,131 votes better than Trump did. Not exact, but pretty close. There are some fudge factors as well – some of those Johnson voters were straight party Libertarian, Ogg may have received some Jill Stein votes, etc. It’s good enough for a back-of-the-envelope approximation, is what I’m saying.

Outside of HD134, Ogg consistently did about two points better across the county, with slightly bigger gains in more Republican districts. Basically, Ogg is to 2016 what Adrian Garcia was to 2008. Garcia maintained his status as Democratic pacesetter in 2012, and I think Ogg will have the chance to do that in 2020 if she does a good job and accomplishes the goals she has laid out. We have seen plenty of examples of county officials and candidates for county office drawing bipartisan support, on both sides. We’ve also seen examples of failed incumbents getting turned out in emphatic fashion. Good performance is good politics in these elections.

I’ll look at the other countywide races in the coming days. Are there any particular questions you’d like me to explore with this data? Let me know.

Checking in with Kim Ogg

That’s District Attorney-elect Kim Ogg now.

Kim Ogg

Kim Ogg

Kim Ogg, still hoarse from shouting over the jubilant victory party crowd after winning her race for Harris County District Attorney, said Wednesday that her first order of business would be to evaluate and secure all of the evidence used in thousands of pending criminal cases.

Ogg, who will take over the largest district attorney’s office in Texas on Jan. 1, hopes to ward off the problems of unauthorized evidence destruction that emerged after it was discovered that deputies at the Precinct 4 Constable’s Office threw away evidence in hundreds of cases. Scores of cases that may have been affected have yet to be resolved.

“It’s so we know that cases that are pled or tried, after I take office, have the real evidence to back them up,” she said Wednesday.

[…]

“It’s a new day in Harris County,” [Tyler Flood, president of Harris County’s Criminal Lawyers Association,] said “I’m hoping Kim will bring transparency to a very secretive regime.”

Ogg sketched out broad agenda items Wednesday but said little about specific plans or possible command staff. She said she is putting together a transition team and was not ready to announce who would be helping her helm the agency, which employs about 600 people including 300 lawyers.

In addition to evaluating the security and veracity of evidence, Ogg said she would be reviewing the pending capital murder cases, including a handful of death penalty cases currently scheduled to go to trial in 2017.

Under her administration, she said, a team of prosecutors will look at the evidence, both damning and mitigating, before deciding whether to seek the death penalty.

“It’s a grave responsibility to undertake taking somebody’s life,” she said. “And I want more minds, and hearts, looking at these cases than just mine. So we’ll have a team.”

Ogg had the second-biggest day in Harris County on Tuesday, winning with 696,054 votes. That’s about 8,000 behind Hillary Clinton, and it means that like Clinton she received a fair number of crossovers. Getting a big vote total like that is both a mandate and a higher expectation level, so there are going to be a lot of eyes on Kim Ogg and what she does.

Not just locally, either. The Harris County DA’s race had a national spotlight on it going into Tuesday. A lot of that attention had to do with the DA’s prosecution of marijuana cases; Ogg as we know has outlined broad reforms for how cases like those will be handled. If she is successful at implementing those policies, it will be a big change and will likely have the effect of reducing the county’s jail population. I for one am looking forward to seeing her get started on that.

Ogg will have a lot on her plate from day one. There was a lot of turnover at the DA’s office after Pat Lykos won in 2008, and I expect there will be a lot more – some voluntary, some not – now that Ogg has won. For some insight on that, I recommend you read what former ADA (now defense attorney) Murray Newman says, from before and after the election. Transitions like this are opportunities for some people to settle scores and get grievances off their chests. That will likely result in a story or two that will be unfavorable to both Anderson and Ogg. I hope we can all keep people’s possible motivations in mind when we read those stories. Be that as it may, there will be a lot of new faces and new procedures at the DA’s office come January, and there will inevitably be some bumps in the road. How well Ogg manages the transition will go a long way towards setting the tone and laying the groundwork for implementing the real changes she wants to make.

One more thing: We all know that Ogg is a lesbian. Devon Anderson got into some hot water late in the campaign for bringing that up during a podcast interview. It hadn’t come up in either campaign before, and the vast majority of people in Harris County don’t care about anyone’s sexual orientation. But a few people with loud voices care A LOT about this sort of thing, and with Annise Parker back in the private sector (for now, at least), Kim Ogg is now the most high-profile elected official in Texas who is also a member of the LGBT community. That means she is the latest monster under Steve Hotze‘s bed, and she will be a target for people like Hotze and the hateful crap he likes to spew. I don’t know how that will play out, which is to say I don’t know how many people outside of Hotze’s little fever swamp will hear or care about anything he says, but I do feel confident saying that at some point during Ogg’s first term in office, he or someone like him will say or do something sufficiently disgusting that the rest of us will be forced to take notice. Be ready for it, that’s all I’m saying. The Press has more.

Dems sweep Harris County

Hillary Clinton had a 100K lead in early voting in Harris County, and increased her lead as the night went on. The only countywide Republican who was leading early on was Mike Sullivan, but later in the evening, at the time when 80% of the Election Day vote was in, Ann Harris Bennett caught and passed him. Kim Ogg and Ed Gonzalez won easily, Vince Ryan was re-elected easily, and all Democratic judicial candidates won.

The HISD recapture referendum went down big, the Heights referendum to update the dry ordinance won, and Anne Sung will face John Luman in a runoff for HISD VII. Statewide, Clinton was trailing by about nine points, and with a ton of precincts still out was already at President Obama’s vote level from 2012. Dems appear to have picked up several State House seats, though not the SBOE seat or CD23. Clinton also carried Fort Bend County, though she had no coattails, and Commissioner Richard Morrison unfortunately lost.

I’m too stunned by what happened nationally to have anything else to say at this time. I’ll be back when I recover.

UH Hobby School (Harris County only): Clinton 43, Trump 36

More polling locally.

Hillary Clinton

A new survey released Thursday by the University of Houston Hobby School of Public Affairs shows Democratic challengers for county wide office rising sharply against Republican incumbents.

It also showed Democratic presidential candidate Hillary Clinton with a seven-point lead over Republican Donald Trump, which Hobby research associate and poll author Bob Stein called “the biggest lead I’ve ever seen a Democratic presidential candidate have in the 37 years I’ve been polling in Houston.”

Barack Obama beat Republicans John McCain by 1.6 percent in 2008, and Mitt Romney by less than 1 percent in 2012.

“The big takeaway here is the Democratic surge,” Stein said.

The poll, a telephone survey of 400 registered Harris County voters, showed Democratic challenger Kim Ogg ahead of incumbent Republican Devon Anderson by seven points, 40 percent to 33 percent. A similar survey released by UH in September showed Ogg and Anderson in a virtual tie, 29 to 30 percent.

The new poll has a margin of error of plus- or minus 4.5 percent.

The poll also showed Ed Gonzalez, the Democratic candidate for Harris County sheriff, in a virtual tie with Republican incumbent Ron Hickman. The UH poll last month showed Hickman six points ahead.

Stein, who also teaches political science at Rice University, cautioned that the wording on the two polls was not identical, making direct comparisons difficult.

Here is the new poll data. Another reason why it’s a bit dicey to compare this poll to the one from September is that they classified the voters differently. In September, we had Registered Voters, Likely Voters, and Extremely Likely Voters. Clinton led Trump 43-34 among Likely Voters, but only 43-39 among Extremely Likely Voters. In this month’s poll, we have Very Likely To Vote and Certain To Vote, with Clinton leading 46-34 (!) among the Certain To Vote cohort, but trailing (!!) 43-33 among the Likely To Vote crowd. Prof. Stein suggests in the article that there’s an enthusiasm gap that favors the Democrats and accounts for this difference. Putting that aside and just focusing on the topline result, if Hillary Clinton is really leading in Harris County by seven points, not only will this almost certainly portend a complete Democratic sweep, it also adds credence to the ever-closer statewide margins, and to my mind also very likely presages a blue Fort Bend.

As for the Sheriff and DA races, I’ll say what I said in September, which is that they will almost certainly be determined by the Presidential race. Both Devon Anderson and Kim Ogg have money to spend on TV advertising, which may move the needle a bit one way or the other, but I for one haven’t seen much on the air so far, just a couple of Ogg spots from a week or so ago. I’d love to see at least one more poll from a different source, just as a check in case this is an outlier, but for now this is what we have. Early in-person voting begins Monday, and I know that a bunch of mail ballots have already been returned. This is going to be a busy couple of weeks. PDiddie and the Press have more.

Chron overview of the DA race

It’s the most interesting local race on the ballot.

Kim Ogg

Kim Ogg

Two years ago, Harris County District Attorney Devon Anderson bested Democratic challenger Kim Ogg in a tussle focusing on substantive policy reform. Both touting impressive criminal justice resumes and spoke optimistically about improving the community by making changes at the state’s largest district attorney’s office.

This year is different.

Anderson finds herself at the center of a raft of problems, many that she had little direct control over. And Ogg has fanned the political flames of every new revelation.

November’s election comes in the middle of a turbulent year for an office that generally sees change during times of upheaval. In 2008, voters unseated former District Attorney Chuck Rosenthal after racist and sexist emails were uncovered. That led to the election of Pat Lykos who served for four years before being ousted in the GOP primary after losing the support of law enforcement and most of her prosecutors. While Anderson has the support of her troops and Houston’s largest police union, 2016 has not been kind to the district attorney’s office.

“I think Houston has become the laughingstock of the United States when it comes to prosecutorial integrity and we need to establish a level playing field for everyone – the accused and crime victims,” Ogg said. “I want to give voters an option to elect a top prosecutor who will make them safer and ensure that their basic constitutional rights aren’t violated.”

Anderson has denied any wrongdoing by her office in each instance and insists Ogg is “desperate” to make political points at every turn, accusing the challenger of repeatedly grandstanding.

Anderson declined an interview request from the Houston Chronicle to talk about the race and her campaign. Ogg, on the other hand, has continued to hammer away at several cases that have made headlines since Anderson took office.

[…]

In a University of Houston poll in September, the two are in a statistical dead heat with Anderson edging Ogg, 30 percent to 29 percent. However, the poll showed that nearly half – 47 percent – of respondents, were unsure about their choice for district attorney.

Political observers are watching the race closely, not just because it is at the top of the local ticket, but because there are implications on national issues such as the death penalty, mental health issues, bail reform and the Black Lives Matter movement.

Brandon Rottinghaus, a political science professor at the University of Houston, said he would not be surprised if the numbers in November flip from the election results two years ago, giving 55 percent to Ogg and 45 percent to Anderson.

“For partisans in both parties, there is significant distrust of Anderson,” Rottinghaus said. “This probably makes her a solid prosecutor – both sides dislike her equally – but it puts her in a tough spot politically.”

As I said before, I would not put too much stock in that poll for downballot races like this. While it’s certainly possible for a candidate for an office like District Attorney to buck partisan trends – see Pat Lykos in 2008 and Mike Anderson in 2012, for example – the tide is going to be a big factor in who wins. I don’t think Anderson has done herself any favors, and I disagree with the odd assertion that she had “little direct control” over “many” of the problems associated with her office. That will work against her in a scenario where the partisan split is close to 50-50, as it was in the past two Presidential elections, but if the Republicans ave the advantage, then I’d expect Anderson to win. Past experience suggests she’d still be favored even in a 50-50 year, though perhaps her troubles would be enough to erase that edge. I’d probably bet the under on Prof. Rottinghaus’ estimate of Kim Ogg’s percentage in November, but all in all I do believe she’s the favorite. Honestly, if this isn’t the year for a Democrat to be elected DA, I don’t know when it would be.

UH Hobby School (Harris County only): Clinton 43, Trump 34

I have many thoughts about this.

Hillary Clinton

Between September 1 and September 20, 2016, the University of Houston Hobby School of Public Affairs conducted a telephone survey of 550 Harris County registered voters as part of a larger Hobby School study on voter participation and engagement under the direction of Mark P. Jones, Renée Cross, and Jim Granato with Ching-Hsing Wang and Wyman Wan. The survey was based on a stratified probability design, including both landlines and cell phones. The survey was available in both English and Spanish using bilingual operators, and lasted an average of 13 minutes. The final data set was weighted by ethnicity, age, and gender to be representative of Harris County registered voters. The margin of error for the survey results is plus or minus 4 percent (at the 95 percent confidence level).

Harris County is the third most populous county in the nation and is home to approximately one fifth of Texas voters. The 2008 and 2012 presidential contests were very close in Harris County, with Barack Obama defeating his 2008 Republican rival, John McCain, 50.45 percent to 48.82 percent, and his 2012 Republican rival, Mitt Romney, 49.39 percent to 49.31 percent.

The Presidential Election: Vote Choice

Approximately two months prior to the November 8 presidential election, the survey finds Hillary Clinton with a lead over Donald Trump in Harris County, with the size of her lead varying depending on assumptions related to voter participation.


Candidate    ELV    LV    RV
============================
Clinton      43%   43%   42%
Trump        39%   34%   32%
Johnson       7%    9%    9%
Stein         1%    1%    2%
Unsure/NA    11%   13%   15%

We divided the survey respondents into three groups of decreasing size: all registered voters (Registered Voters), voters who indicated that it is very likely or extremely likely that they will vote this fall (Likely Voters), and voters who indicated that it is extremely likely they will vote this fall (Extremely Likely Voters).

[…]

The Harris County District Attorney and Sheriff Elections: Vote Choice

The survey also queried respondents regarding their vote preference in the key races for Harris County District Attorney and Harris County Sheriff. In both contests, even among the likely and extremely likely voters, there existed a substantial proportion of respondents who were unsure about their preference in these lower visibility contests (compared to the presidential race).

Among those likely voters who did have a preference, in the District Attorney race 29 percent favored Democratic challenger Kim Ogg over Republican incumbent Devon Anderson with 27 percent support. In the Sheriff contest, 33 percent of likely voters supported Republican incumbent Ron Hickman while 32 percent backed Democratic challenger Ed Gonzalez.

Just as was the case in the presidential race, the Republican candidates fared better when the population was limited to those most likely to cast a ballot this fall: the extremely likely voters. Among this population Anderson narrowly bested Ogg, 30 percent to 29 percent, while Hickman increased his lead over Gonzalez, 36 percent to 30 percent.

Poll data is here. My thoughts:

– I find the distinction between Likely Voters and Extremely Likely Voters to be silly. I mean, why stop at Extremely Likely? Why not ask if someone is Super Duper Double Dog No Backsies likely to vote? There’s a reason why every other poll under the sun uses Registered Voters and Likely Voters, and nothing else.

– The press release for this poll claims that “neither party can depend on presidential coattails” for the donwballot races. I don’t see how they can draw that conclusion from the given data set. For one thing, there’s no breakdown of the vote by partisan affiliation, nor is there any generic “which party’s candidates are you more likely to support in other races?” question. We have several cycles’ worth of actual results to suggest that Democrats have done a pretty good job of voting all the way down the ballot, while Republicans have only really done that in 2012, and even then not quite as faithfully as the Dems. Don’t make suppositions about what the topline numbers mean. Ask the questions that could tell you the answers!

– I picked the “Likely Voter” numbers for my post title, and if one went by that without knowing anything else, one would feel really good about Democratic downballot chances. But to be secure in those feelings, one would have to know those partisan crosstabs. If one were to choose an archetype for the Republican Who Will Not Vote For Donald Trump, it’s probably a voter in HD134. How many self-identified Republicans say they are voting for a candidate who is not Donald Trump? How many are just in the “Unsure/No Answer” column? That would tell me a whole lot more about the downballot races than the actual Ogg/Anderson and Gonzalez/Hickman results do.

– How many new voters are in this sample, and how many of them are deemed “Likely” or “Extremely Likely”? We know voter registration is up in Harris County – indeed, it’s way up around the state – so who are these voters and how were they accounted for in the poll?

– I would love to see a similar poll – with my suggested modifications, of course – for other area counties as well. Fort Bend would be my first choice for this, as they are close to being the kind of swing county that Harris has been. Is the year that Fort Bend Democrats break through, or does the Fort Bend GOP maintain its hold? A sneak preview of that answer would have been nice.

– If the polls of Texas that show Clinton trailing by significantly less than the margins by which President Obama lost the state are accurate, then it stands to reason that Clinton would be doing better in Harris County than Obama (who won the county by small margins) did. Similarly, if this poll of Harris County is accurate, then it stands to reason Clinton would be running more strongly statewide than Obama did. It’s like the relationship between national polls and state polls – they may not be tightly correlated, but one is unlikely to make a big move in a given direction without the other following suit.

More on the Precinct 4 evidence destruction scandal

Lots of cases have been compromised.

Constable Mark Herman

Constable Mark Herman

District Attorney Devon Anderson’s office first learned in April that the mistaken destruction of evidence in Harris County’s Precinct 4 had likely compromised more than a thousand criminal cases, including more than 400 in which defendants had already been convicted, records released Tuesday show.

Anderson immediately launched a criminal probe, but her office did not begin informing defendants, their attorneys and even her own prosecutors about the magnitude of the problem until late August.

The records show that most of the cases were minor drug offenses, although dozens involved violent felonies in which defendants either pleaded or were found guilty and in some cases sentenced to up to 20 years in prison. Prosecutors have dismissed more than 140 cases so far.

[…]

Anderson has emphasized in past statements that evidence went first to a prosecutor who is investigating Precinct 4 in her Public Integrity Division. Her office made the records, including lists of 21,000 pieces of evidence that had been destroyed, public for the first time Tuesday in response to a public information request from the Houston Chronicle and other media outlets.

Precinct 4 Constable Mark Herman said his office immediately informed the DA’s office in March after learning that an officer had destroyed evidence in the department’s overstuffed property room. By then, he said the DA’s office had already launched a criminal investigation into the matter.

The constable’s office began supplying a longer list of cases in April.

“We were very direct, very deliberate with the DA’s office from the very beginning,” Herman said. “When this process started … we talked to them, told them we had cases compromised due to an employee destroying evidence to open cases.”

[…]

Legal experts said deciding when to disclose evidentiary problems to defendants and their attorneys is a complex matter involving numerous factors, including the status of any ongoing criminal investigation.

Geoffrey Corn, a professor at Houston College of Law, credited Anderson with already dismissing dozens of cases instead of fighting for convictions as the scandal has unfolded.

“When you have a catastrophic failure – and this was catastrophic, a DA doesn’t expect an evidence custodian who is lazy to just destroy tons of evidence – there’s got to be a lot of assessment,” he said.

Local defense attorneys criticized Anderson for what they saw as a lack of transparency and said many defendants still have not received legally required “Brady notices” informing them of the evidence destruction.

“The response from the Harris County district attorney has been nearly non-existent,” said JoAnne Musick, former president of the Harris County Criminal Lawyers Association. “Despite having known of the evidence destruction since February, it took … months and a flood of negative press before they saw fit to even begin notifying defense attorneys.”

Tyler Flood, the association’s current president, praised Anderson for complying with Texas Public Records Laws and supplying the case lists.

“I think it’s commendable that they are attempting to do the right thing by releasing this information,” he said. “However, there’s an issue with the scope. We don’t know if this is covering everything that it needs to cover and how far back it goes.”

See here for the background. I don’t really have anything to add to this, I’m just noting it for the record. The big question that continues to be unexplored in all this is how the deputy in question could have been doing this for so long without longtime Constable (now Sheriff) Ron Hickman noticing. It would be very nice to get some clarity on that. The Press has more.

The Precinct 4 evidence destruction debacle

What the heck is going on here?

Constable Mark Herman

Constable Mark Herman

The Harris County Precinct 4 deputy who was fired after destroying evidence in hundreds of pending criminal cases this year has been wrongfully tossing evidence without following department protocol since 2007, Constable Mark Herman announced Tuesday.

Herman’s announcement comes just after Houston defense attorney Paul Morgan wrote a letter to the U.S. Attorney’s Office asking the federal government to investigate Harris County Precinct 4 and the Harris County District Attorney’s Office, arguing that neither agency is capable of conducting an independent investigation and that the DA’s office is complicit in the fiasco. Morgan also asks the feds to strip Precinct 4 of law enforcement duties and restrict the precinct only to ability to serve civil process and warrants, because it has demonstrated that it “cannot handle criminal investigations and prosecutions,” Morgan wrote.

Since 2007, the fired deputy, Chris Hess, has destroyed more than 21,000 pieces of evidence, putting more than 1,000 cases in jeopardy. Already, the DA’s office has dismissed 142 pending cases, most of them drug-related, because the evidence was incinerated in January — the last time Hess destroyed evidence before he was caught and fired.

This problem only became public after Morgan and attorney Emily Detoto discovered in August that drug evidence in their own client’s case was destroyed — just as a prosecutor was offering their client, David Bellamy, a 25-year plea deal for meth possession, Morgan said. It was among the first cases to be dismissed due to the Precinct 4 missing-evidence fiasco.

But as more details have surfaced of the hundreds more affected cases, what has bothered Morgan and Detoto the most is the complete lack of action the district attorney’s office had taken on the issue, they say — even though District Attorney Devon Anderson admitted to knowing about the destroyed evidence since February. It was only directly after KTRK aired a story about Bellamy’s case on August 17 that Anderson blasted out an email to all her prosecutors, ordering them to stop offering plea deals or taking to trial any cases involving Precinct 4.

Morgan and Detoto say it was an email that should have been sent out seven months ago.

“With something this large, it’s either the height of deception or the height of incompetence — either way it’s inexcusable,” Morgan said. “But which office has more blame? It’s the district attorney’s office all day. They legally have more responsibility. It’s why we have shiny gold bar cards. This just can’t happen.”

This is nuts. I hadn’t followed this story very closely, so let’s review a few previous stories to catch up:

Precinct 4’s destruction of evidence the subject of a criminal probe

Hundreds of Precinct Four cases could be dismissed

Feds eyeing mass evidence destruction problems in Precinct 4 constable’s office

So a big mess, and we’re far from the end of it. In addition to being another headache for District Attorney Devon Anderson, it’s also now a campaign issue.

Harris County District Attorney candidate Kim Ogg is calling for a special prosecutor to investigate “possible civil rights violations” in the wake of disclosures that thousands of pieces of evidence were wrongly destroyed by the Precinct 4 constable’s office.

Ogg, a Democrat who is facing Republican incumbent District Attorney Devon Anderson in the November general election, questioned why Anderson waited more than six months to notify trial prosecutors that the evidence may be missing.

“It’s time we asked for an independent prosecutor to investigate not just the actions of Precinct 4, which are going to be reviewed by the Justice Department, but of this district attorney and her assistant district attorneys,” Ogg said Thursday during a news conference. “For every person who was convicted where evidence had already been destroyed, they’re entitled – in all likelihood – to a new trial.”

Anderson fired back, saying she has been open with the public about how she came to learn of the property room debacle in Precinct 4 and said Ogg is politicizing the issue.

“I have spoken at length with the media on this situation,” Anderson said in a written statement Thursday. “I have given them all the details and all the facts. If there are any questions on specifics I am happy to answer those, but Kim Ogg’s attempt to politicize this and make it a DA campaign issue is desperate.”

Anderson’s public integrity unit has been investigating the discrepancy since February, but the dozens of prosecutors who handle cases at the trial level were apparently not notified until Aug. 19 to stop work on Precinct 4 cases, after a defense attorney raised questions about missing evidence in his client’s case.

Ogg said failure to alert prosecutors more quickly and to disclose details about the missing evidence to defense attorneys appears to be prosecutorial misconduct.

Unfortunately for Anderson, she’s got some credibility problems to overcome if she wants to make a “politicization” claim stick. To be fair to her, however, her office isn’t the only one with some questions to answer here. Anderson has largely blamed Precinct 4 Constable Mark Herman for the problem, but Herman has only been in office since last year, and the evidence destruction apparently goes back a lot farther than that. Let’s return to that Press story we began with:

If Hess had destroyed evidence in any pending cases since 2007, then that leaves defense attorneys puzzled over how prosecutors never discovered they had no evidence against suspects they convicted or persuaded to take plea deals.

Herman took over as constable in May 2015 after former Precinct 4 constable Ron Hickman became county sheriff. In January, Herman ordered Hess and several deputies to clean out the storage room because it was overfilled with evidence. He said his office caught Hess’s misconduct shortly afterward, but he could not comment on or account for how Hess got away with destroying evidence for nine years prior. He says the constable’s office has passed various audits “with flying colors.”

Herman said Precinct 4 superiors can only trace Hess’s policy violations to 2007 because that’s when the department started using a new electronic system to track evidence destruction and the property room’s inventory. Hess had been working in the property room, though, since 2000, which is when Hickman became constable.

Herman told the Press that when he ordered a review of all of Hess’s past employee evaluations since 2000, strangely no evaluations on Hess were on file. By contrast, Herman said that every employee is supposed to be evaluated every year.

A sheriff’s office spokesman declined to comment on allegations that Hickman failed to discipline Hess for violations until it could be confirmed through records that Hess had been breaching department policies since 2007. The Press has requested the documents.

So one has to wonder how it is that now-Sheriff Ron Hickman didn’t discover this problem over the course of eight years. That’s a question that could use a bit more exploration. Like I said, I think we’ll be learning new things about this for quite some time to come.

Endorsement watch: Time for a change

The Chron gives a ringing endorsement to Kim Ogg for District Attorney, but not before delivering a stern rebuke to incumbent DA Devon Anderson.

Kim Ogg

Kim Ogg

Harris County cannot take four more years of a prosecutor’s office that pursues convictions at any cost. It is a mentality that risks putting the innocent behind bars while the real criminals run free.

The incumbent’s mistakes, scandals and politicking have wasted taxpayer dollars and undermined public trust in our criminal justice system.

Anderson, a Republican, has rolled out reforms when it was a political imperative – and we’ve praised her when it was earned. But each improvement she’s pursued, from reducing marijuana prosecutions to targeting our broken bail system, was just a watered-down alternative to policies advocated by 2014 Democratic challenger Kim Ogg.

There is no reason for voters to be content with a diet version of much-needed reform when we can go with the real thing. It is time to elect Kim Ogg as district attorney.

It was hard to pick a section to excerpt – there’s so much there. I’ve noted the same thing about Anderson’s reform proposals – they’re good, but they’re not as good as what Ogg had proposed weeks or months before. The DA’s office feels like it’s been in a constant state of turmoil since the latter days of Chuck Rosenthal. From his bizarre antics to the internecine wars of the Pat Lykos days to the frequent scandals of Devon Anderson’s term, it’s been a nonstop barrage of news, most of it bad. It’s hard to imagine a stronger case for change. Kim Ogg will definitely have her work cut out for her, but she knows what needs to be done and she will have a mandate to do it. I really hope this is the year for her.

Legislation to ban the jailing of rape victims proposed

Hard to argue with, I must say.

DA Devon Anderson

The controversial jailing of a rape victim to ensure her testimony could lead to a new state law protecting victims’ rights to an appointed attorney.

State Sen. Joan Huffman is joining with Harris County District Attorney Devon Anderson and Sheriff Ron Hickman to push for new legislation to protect witnesses facing jail time through a legal mechanism known as an attachment order, or witness attachment.

The announcement Friday came on the heels of a firestorm after a mentally ill rape victim filed a lawsuit last month over being detained in the Harris County jail for almost a month while waiting to testify against her attacker.

[…]

“The process of attachment is a rarely used but extremely vital tool for attorneys to ensure the testimony of a witness,” said Huffman, R-Houston. “It should only be used when there is no other way to hear testimony that is critical to public safety or in the best interest of the public.”

Huffman said what happened to the rape victim was “distressing” and she is looking at a wide swath of possible changes, mostly for large jurisdictions in Texas.

In addition to requiring judges to appoint counsel, Huffman said she is looking at requirements that office holders, or their designees, sign off on the order. There could also be a requirement to renew the order every 72 hours.

“I envision it almost like the special protections we have in the juvenile system, like making sure they have counsel and someone is keeping tabs on them,” she said. “And that way everybody knows what’s going on and everybody is on the same page.”

She said smaller jurisdictions would probably be exempt, since it would be unlikely that a witness in jail in a small rural county would “fall through the cracks.”

See here, here, here, and here for the background. It’s hard to argue with the intent of such a bill, but one could easily argue that this should never have happened here without DA Anderson and Sheriff Hickman’s knowledge and consent, and that it happened is more a failure of common sense and office management than anything else. That said, if it takes a law to ensure that every office has that kind of procedure in place, then so be it. I would argue that small counties should not be exempted from it, as informing the DA and Sheriff is hardly an imposition, and ensuring they are informed would also ensure they are accountable. So kudos to Sen. Huffman for proposing this, but forgive me my exasperation that she had to propose it.

Jailed rape victim’s lawyer calls for special prosecutor

To investigate the actions of the DA’s office that led to her incarceration.

DA Devon Anderson

Prosecutors broke the law when they jailed a rape victim in order to secure her testimony against her attacker, the woman’s attorney claimed Monday in a letter to Harris County District Attorney Devon Anderson.

Attorney Sean Buckley said he believes prosecutors illegally obtained a court order to confine his client in the Harris County Jail last December, committing the crime of official oppression.

He called on Anderson to appoint a “special prosecutor” to investigate the matter.

“Reasonable minds cannot disagree that I have made more than a colorable claim that your employees engaged in the Class A misdemeanor offense of Official Oppression in their callous and deliberate mistreatment of my client,” Buckley stated in the letter. “This is an exceedingly serious matter on multiple levels that clearly deserves a full, fair and independent investigation by a neutral and detached prosecutor with no ties to your office.”

Anderson countered Monday that her office didn’t break any laws.

“There is no reason to believe that anyone in this situation – the prosecutor or the judge – believed that what they were doing was unauthorized by the law,” Anderson said at a Monday press conference. “No crime was committed. I will not recuse off this case.”

She apologized to the victim, reiterating that prosecutors believed it was the only option at the time.

“I would say something to (the victim), that I’m very sorry about how all of this played out,” she said. “And the last thing that we ever want to do is cause further distress, further trauma to a victim.”

[…]

The woman, 25, had agreed to testify against her attacker, Keith Hendricks, but had a mental collapse on the witness stand in December. She was found walking in traffic outside the criminal courthouse and was committed to a psychiatric ward at St. Joseph Medical Center, according to the lawsuit. The judge then delayed the trial until January.

Buckley believes his client was held at St. Joseph through a valid mental health warrant.

“I have no complaint about that,” he said. “We agree she needed to be hospitalized for her mental health condition.”

But prosecutors, he said, also used an improper court order – issued and signed by the judge on the day of the woman’s December testimony – to take the woman into custody following her discharge from St. Joseph.

That order was obtained illegally, Buckley said. According to Texas law, an attachment order can be obtained only if the witness resides in the county or has been served with a subpoena and failed to appear – none of which applied to his client, he said.

“My request for an outside investigation is directed specifically at the allegation that prosecutors broke the law when they did this,” he said.

Court records show that a subpoena was issued for the woman in October, but Buckley said it was never served and was not in effect at the time of trial two months later. Furthermore, he asserted that the original subpoena was defective because it had an incorrect address for his client.

“My position is that no prosecutor could ever conclude that the attachment order used against my client was lawful,” he said. “It’s obvious that this order violates the law.”

See here, here, and here for the background. Normally with this kind of dispute over the facts of a case, you’d let the jury sort it out. Here it means that there won’t be a special prosecutor appointed, unless DA Anderson comes under enough pressure that she relents and appoints one. “Pressure” in this case means political pressure, and so far I haven’t seen much involvement from other officeholders, including Commissioners Court. If and when that happens, it will be a lot harder for Anderson to hold out. The Press has more.

More on the jailed rape victim

The Chron pens a harsh editorial.

DA Devon Anderson

Although a spokesman for the district attorney’s office has admitted this miscarriage of justice should never have happened, Harris County District Attorney Devon Anderson defends the prosecutor involved in the case. She says the prosecutor tried to find a suitable place for the sexual assault survivor to stay after her breakdown and even paid for a night in a hotel out of his own pocket. Calling it “an extraordinarily difficult and unusual situation,” the DA said there were “no apparent alternatives” that would ensure the victim’s safety and that she also would appear to testify. Coming from a district attorney who presents herself as a champion of crime victims, that’s mighty hard to swallow. Throwing a mentally ill rape victim into jail because there’s supposedly no other place for her to go should shock the conscience of every citizen of Harris County.

[…]

Voters will pass final judgment on Anderson’s handling of this matter. With the district attorney up for re-election in November, the incident already has become a political issue.

Meanwhile, we call upon our elected leadership to ask the U.S. Justice Department for a federal investigation of this case. The DA and the sheriff have offered their own explanations, but an independent inquiry is absolutely essential.

We also urge Harris County Judge Ed Emmett and county commissioners Jack Cagle, Gene Locke, Jack Morman and Steve Radack to take the time to read the lawsuit the victim’s lawyer filed. It’s a frightening document outlining an unimaginable perversion of justice. We hope they lose sleep thinking over what they need to do about it.

See here and here for the background. We absolutely should be hearing more from Judge Emmett and Commissioners Court – including Sen. Ellis – on this. Do they support a federal investigation into what happened? We need to know.

and yes, this is a campaign issue.

District attorney candidate Kim Ogg on Tuesday again pushed for reform in the treatment of crime victims, criticizing the controversial jailing of a rape victim by Harris County prosecutors to ensure the woman would testify in court.

Ogg said the district attorney’s office could improve how victims are detained if prosecutors are worried witnesses might fail to show up in court. She also suggested the creation of a new division in the district attorney’s office that would be responsible for prosecuting people who commit sex crimes.

“I will never put a crime victim in jail to secure a conviction,” she said at a Tuesday press conference. “There are so many other things we can do … There is no excuse for putting this woman in jail.”

[…]

Ogg called last week for an independent investigation of the case and has now made crime victim treatment a campaign priority, saying her proposed reforms would be implemented if she is elected in November.

Sheriff candidate Ed Gonzalez has also been speaking out about this. You may say, we shouldn’t politicize this. I say District Attorney and Sheriff are political offices for a reason, and it is ultimately on the voters to decide how and when to hold the people who serve in those offices accountable when stuff like this happens. DA Anderson and Sheriff Hickman have given their responses to what happened. We get to decide how we feel about that. That’s how it’s supposed to work.

July finance reports for county candidates

Most of the interesting race in Harris County this year are the countywide races. Here’s a look at how the candidates in these races have been doing at fundraising.

District Attorney

Friends of Devon Anderson PAC
Kim Ogg


Name        Raised    Spent     Loans    On Hand
================================================
Anderson   253,670   55,392         0    368,907
Ogg        143,311   34,417    69,669    108,872

Devon Anderson received a $60K contribution from Richard Anderson; I have no idea if there’s any family connection there. She’s a strong fundraiser, but she’s also had her share of bad publicity, and I suspect it’ll take more money than what she has in the bank to wipe that away. As for Ogg, her biggest single contribution was $13,500 from Nancy Morrison. I feel like Ogg’s totals don’t quite work, since she reported $30K on hand for her February 20 eight-day report, but it’s not that big a deal. This is also a reminder that the totals listed above for Ogg were from the period February 21 through June 30, while Anderson’s are for the full six months.

Sheriff

Ron Hickman
Ed Gonzalez, May runoff report
Ed Gonzalez, July report


Name        Raised    Spent     Loans    On Hand
================================================
Hickman    127,153  175,247         0    135,868
Gonzalez    38,435   35,587         0     20,117

Hickman had primary opposition, so his report is from February 21 through June 30. He got $21,700 from Suzanne and Keith Moran for his biggest donation. He also spent a bunch of money – $59K to Strategic Media Services for TV ads, $41K too Neumann and Co for mailers, and (my favorite) $10K to Tom’s Pins for “promo items and Golf Promo items”. I bet that’s a lot of pins and little pencils. As for Gonzalez, he had raised $130K from Feb 21 to May 14, during the primary runoff period. His July report is only for May 15 through June 30. In other words, don’t freak out at the disparity in amount raised.

Tax Assessor

Mike Sullivan
Ann Harris Bennett


Name        Raised    Spent     Loans    On Hand
================================================
Sullivan    70,300   39,196         0    101,564
Bennett     26,190   11,536         0      1,837

Both Sullivan and Bennett were in contested primaries, so both reports cover February 21 through June 30. You could call Sullivan an efficient fundraiser – he raised that $70K from 55 total donors, 52 of whom gave $250 or more, and three of whom gave $100 or less. Bennett has never been much of a fundraiser, and this report bears that out. Some $17K of her raised total was in-kind, which contributed to the extra low cash on hand amount.

County Attorney

Vince Ryan
Jim Leitner


Name        Raised    Spent     Loans    On Hand
================================================
Ryan         72,400  33,652         0    171,677
Leitner      12,550  10,225     9,500      8,765

Leitner had to win a primary, while Ryan was the one Dem who had a free ride. Ryan is also the one Democratic incumbent, and he built up a bit of a cushion over the past four years. Leitner wins the award for being the one guy to fill out his form by hand rather than electronically. Not a whole lot to see here otherwise.

Commissioners Court, Precinct 3

Steve Radack
Jenifer Pool


Name        Raised    Spent     Loans    On Hand
================================================
Radack     747,500  177,604         0  1,616,948
Pool        13,750   13,054         0          0

This is the one contested County Commissioner’s Court race. Radack’s Precinct 3 is redder than Jack Morman’s Precinct 2 but less red than Jack Cagle’s Precinct 4. In a normal year, I’d expect Radack to get around 60% of the vote, though downballot candidates have done better than that in recent years; Adrian Garcia topped 47% there in 2008. This is obviously not a normal year, though whether the effect of that is primarily at the top of the ticket or if it goes all the way down remains to be seen. To the extent that there is an effect, Precinct 3 ought to serve as a good microcosm of it.

And for completeness’ sake:

Commissioners Court, Precinct 1

El Franco Lee – Still has $3,774,802 on hand.
Rodney Ellis – $1,959,872 on hand. Same as his state report.
Gene Locke – Raised $258K, spent $182K, still has $115K on hand.

I’m going to step out on a limb and suggest that Gene Locke has run his last campaign. Very little money has been spent from El Franco Lee’s account – one presumes his campaign treasurer hasn’t given the matter any more thought since he was first asked about it in January. Rodney Ellis has promised to give $100K to the HCDP coordinated campaign. I say Gene Locke and J. Kent Friedman (El Franco Lee’s campaign treasurer) should do something like that as well. This year presents a huge opportunity for Harris County Democrats, and it’s not like that money is doing anyone any good sitting in the bank. It’s not my money and I don’t get to say how it gets spent, but I do get to say what I want, and this is it. Put some money into this campaign, guys. There’s absolutely no reason not to.

UPDATE: Just to be clear, Commissioner Locke has nothing to do with the late Commissioner Lee’s finance account. I was under the impression that Lee’s campaign treasurer controls that purse, but it has been suggested to me that (at least by now) that may have passed to his widow. Be that as it may, and again to be clear, Commissioner Locke has no involvement in anything but his own finance account.

Harris County DA drops charges against video fraudsters

Disappointing, to say the least.

Right there with them

Right there with them

Criminal charges against the anti-abortion activists behind undercover recordings of a Houston Planned Parenthood facility were dismissed Tuesday.

David Daleiden and Sandra Merritt, the videographers who infiltrated Planned Parenthood Gulf Coast, had been charged with tampering with a governmental record, a second-degree felony charge that carries up to 20 years in prison. A court clerk confirmed that the Harris County district attorney’s office filed the motion to dismiss the case against Daleiden and Merritt.

Harris County DA Devon Anderson said in a statement that Texas limits what can be investigated after a grand jury term gets extended, which happened in this case.

“In light of this and after careful research and review, this office dismissed the indictments,” Anderson said.

The misdemeanor charge against Daleiden was dismissed by the judge in June. The defense had filed a motion back in April to dismiss the felony charges on the grounds that the grand jury had not been properly empaneled, and the fraudsters rejected a plea deal later in April. If you’re wondering why now, when there hadn’t yet been a hearing on the defense motions, the DA’s office decided to throw in the towel, you’re not alone.

The decision came as a surprise because the district attorney’s office had argued at length in a 30-page motion filed in May that the issue about the grand jury’s term was “meritless.”

Planned Parenthood Gulf Coast’s attorney Josh Schaffer said Tuesday’s decision was based on a political calculation by a Republican incumbent who has drawn criticism for pursuing the case. It also came just days after sharp criticism of the DA’s office in an unrelated case over the jailing of a mentally ill rape victim to ensure she would testify.

“I think it smacks of a politically expedient decision made from the highest levels of the office,” Schaffer said. “It was an easy out for a district attorney who had already received a lot of heat from her party over this case and had received a lot of heat this week for the handling of another case, one involving a rape victim.”

If prosecutors were concerned about a technical error over the grand jury extension, he said, they could have remedied it months ago by taking it to another grand jury. The district attorney’s office could still file charges, he noted.

“I do not think what happened in this case was based on law or the facts,” he said. “It was based on politics.”

[…]

The lawyers had scheduled a hearing before state District Judge Brock Thomas in which they were expected to argue the grand jurors were improperly empaneled longer than their standard three-month term, rendering any indictments null and void.

Instead of arguing the point, prosecutors agreed in a surprise move that the defense raised a “colorable claim” and dismissed all of the charges.

[…]

Political and legal observers said the dismissal is understandable given the amount of resources it would have taken to prosecute versus the likely outcome.

“If I were writing the prosecutorial memo, it seems like this case would be a whole lot of work that would, at best, end up with a slap on the wrist,” said Geoffrey Corn, a professor at the newly named Houston College of Law. “There are bigger fish to fry in Houston.”

Corn said Anderson should not be criticized for using her discretion to dismiss a case that would expend county resources for a minor conviction.

“These were a couple of zealots who were overreaching and gaming the system,” he said. “DA’s have to make hard decisions about where to allocate resources. This seems to make sense to me.”

I Am Not A Lawyer, so I cannot evaluate the merits of the defense’s arguments or the reasons why the prosecution decided to buy into them. What Professor Corn says makes some sense, but one might ask why they didn’t make that calculation before taking this to a grand jury in the first place. It’s not like they couldn’t have seen this cost/benefit calculation coming from that vantage point. I can’t say what motivated Devon Anderson to change course now, but the timing of it sure is funny.

One more thing:

“The decision to drop the prosecution on a technicality does not negate the fact that the only people who engaged in wrongdoing are the extremists behind this fraud,” said Melaney Linton, president and CEO of Planned Parenthood Gulf Coast.

Yep. This is the very definition of “getting off on a technicality”. Let us not lose sight of that. The Press and the Current have more.

Falkenberg talks to DA Anderson about jailed rape victim

Worth reading, as you would expect. I’m going to quote from the conclusion:

DA Devon Anderson

[Assistant DA Nick] Socias appeared to have diligently tried to help, but he seemed to be trying alone. Anderson’s office said she wasn’t informed about the situation until near the end of trial.

She should have been involved from the start. The sheriff as well. When I asked, Anderson couldn’t think of a single thing the prosecutor could have done better. One is glaringly obvious: ask for help.

In the end, the victim testified, and her bravery helped get a serial rapist off the street.

But the cost to the victim was too high, something Anderson said “we regret very much.”

“We’ve just been crushed by this,” she told me.

I believe her. But a young rape victim has been destroyed by this. It’s not acceptable to say that was unavoidable.

See here for the background, and do read the whole thing. I don’t think Devon Anderson has been a terrible DA. She has done, or at least tried to do, some good things, from better handling of marijuana cases to not being bulldozed by politics in the Planned Parenthood investigation. She’s a clear step up from Chuck Rosenthal. But this case demonstrates an appalling lack of oversight within her office. There’s just no way that an ADA should have been able to make the decision to hold a crime victim, let along a rape victim, in jail without the full knowledge and consent of the DA and the Sheriff. Maybe they would have signed off on it and maybe they would have insisted on finding another answer. Maybe if they had signed off on it there would have been better management of the process that could have avoided the terrible things that happened to the victim while she was inside. Whatever the case, the fact that it did happen without them knowing about it is a problem. That Anderson didn’t see that on her own is an even bigger problem.

Roadside drug tests

Maybe this isn’t such a good idea.

go_to_jail

A Houston police officer pulled Barry Demings over as he headed to work in Beaumont and plucked a spot of white powder off the floorboard of Demings’ year-old Ford Explorer.

Demings had just detailed the SUV – and wondered later if a speck of soap upended his life.

“I never even saw it,” he said, explaining how the officer dropped the speck into a small test kit and said “it came back for cocaine.”

Demings was charged with felony drug possession based on the results of the primitive test that costs about $2 and has been found to have a high error rate. He was told he could face a sentence as long as 30 years based on old prior convictions – no one mentioned waiting for a crime lab to verify the officer’s roadside result.

He insisted he was innocent but got scared and accepted a plea deal. He lost his job, his girlfriend and his Explorer. Upon release, he decided to leave Texas behind forever.

In 2015 – seven years later – the Harris County District Attorney’s Office notified him that Houston’s crime lab found no cocaine in the sample. He filed a writ of habeus corpus with the Texas Court of Criminal Appeals and was finally exonerated.

He is among 298 people convicted of drug possession even though crime lab tests later found no controlled substances in the samples, according to a far-reaching audit of drug cases by the Harris County District Attorney’s Office. So far, 131 of them, like Demings, have had their convictions overturned in cases that go back to 2004. About 100 other cases remain under review for potential dismissal.

In all 298 cases, prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed. The $2 roadside tests, which officers use to help establish probable cause for an arrest, cannot be used at trial as evidence under Texas law.

[…]

The Harris County audit of drug possession convictions and related lab results going back to 2004 was launched in 2014 by Inger Chandler, an assistant district attorney in charge of the DA’s conviction integrity unit, after a reporter from the Austin American-Statesman called her about reversals of several drug convictions by the Court of Criminal Appeals.

The following year, Harris County District Attorney Devon Anderson changed her policies and directed prosecutors generally to stop accepting guilty pleas in felony drug cases before receiving lab reports confirming the evidence. Plea deals are still accepted prior to lab testing in misdemeanor drug cases, and in some felony cases in which jailed defendants can qualify for probation.

The forensic evidence problems uncovered by Chandler’s unit began around 2005, when Houston’s city crime lab – then overseen by HPD – lost several staff members and simultaneously saw a huge increase in drug cases, which created a backlog.

Lab officials implemented a triage system for drug testing with the DA’s office: Drug cases slated to go to trial would get processed first. For defendants who had accepted plea deals, the crime lab would later go back and test samples, often months or years after the guilty plea had been entered.

Chandler’s audit of wrongful convictions has been possible because the Houston Forensic Science Center, formerly HPD’s crime lab, preserved and tested the evidence even in the plea deal cases.

“We were keeping the evidence, and with the agreement with the District Attorney’s Office that we would continue to process even if it was pled,” said James Miller, manager of the center’s controlled substances section. “Because we both understood there was always the possibility that the substance may not actually be illegal.”

So far, prosecutors have identified and examined 456 flawed cases. Of those, 298 people had been convicted despite having no illegal controlled substances in their possession at all. In 29 of the 298 wrongful convictions, there had been no filing for relief because a defendant declined to pursue the case or faced other legal obstacles.

In other cases among the 456, the types or quantities of controlled substances were misidentified or there was too little evidence left to perform a confirmatory test.

About 78 percent of the 456 flawed cases came from the Houston Police Department, which still uses roadside tests that were developed in the 1970s. Chemicals in small vials turn colors when exposed to cocaine and other illegal drugs but can be easily misinterpreted by officers and can have high false positives, Miller and other experts said.

Emphasis mine. This article is a followup to a much longer ProPublica piece that explored the history and background of these roadside tests; another story, about the chemist who created these kits in 1973, is here. You should read them both – I don’t know about you, but I had no idea about any of this before now. We could have a debate about whether it’s reasonable for police officers to conduct roadside drug tests like this, but the high error rate for this test, which hasn’t been updated sine the 70s, makes it a particularly poor reason to hold people in jail or encourage them to plead out on a charge that is based on a crime that may never have existed. The point, again and again and again, is that there are way too many people in our jails who should not be there. The cost of this, both to the people who have been subjected to this and to us taxpayers who foot the bill for it, is unacceptable. When are we going to do something about it?

Why would you even think to put a rape victim in jail?

I am outraged.

The 25-year-old rape victim, frightened and long-suffering from mental illness, agreed in December to testify against the Houston man who brutally assaulted her in 2013.

She hoped to put him behind bars for life.

But that decision landed her in the Harris County jail for more than a month over the Christmas holiday – terrified, helpless and hopeless, according to a federal lawsuit filed this week in Houston.

The woman, diagnosed with bipolar disorder and schizophrenia, had a mental breakdown on the witness stand and then was jailed by Harris County prosecutors who feared she wouldn’t come back to court.

“They didn’t care. They got what they wanted,” the woman’s mother said Wednesday about the Harris County District Attorney’s Office. “She was collateral damage and they didn’t care what happened to her.”

News about the case shocked Houston’s defense attorneys and advocates for rape victims.

“That is beyond ludicrous,” said Lavinia Masters, a sexual assault victims advocate. “I’m amazed that a judge would allow that. You’re further victimizing a victim.”

District Attorney Devon Anderson said the woman, who was homeless when she was raped, was going through a “life-threatening mental health crisis” and told prosecutors she was not going to return to testify.

“If nothing was done to prevent the victim from leaving Harris County in the middle of trial, a serial rapist would have gone free – and her life would have been at risk while homeless on the street,” Anderson said in a video statement. “This was an extraordinarily difficult and unusual situation. There were no apparent alternatives that would ensure both the victim’s safety and her appearance in trial.”

She defended the prosecutor named in the lawsuit, Nicholas Socias, and said any claim that her office does not support crime victims is “outrageous.”

[…]

Jailing a witness to ensure they testify is an unusual move in Harris County, especially when the witness is not also facing criminal charges. Over the past two decades, there have been a smattering of published accounts of rape victims being jailed across the country.

Officials with the Houston Area Women’s Center said respecting the dignity of survivors and providing full support are paramount.

“We have no direct knowledge of this particular case, but are concerned that sexual assault is already under-reported and that this may further deter survivors from coming forward,” said Rebecca White, the center’s chief executive officer.

I can’t even begin to imagine the thought process that led to the conclusion that jailing this poor women was a good idea. I mean, I know that the Harris County Jail is called the largest mental health facility in the country, but that doesn’t make it a hospital, and it doesn’t make it an acceptable place to try and treat someone who doesn’t belong in jail. This was just monumentally bad judgment, and Kim Ogg is right to call for an independent investigation of what happened. For shame.

We’re outsourcing inmates again

We never learn.

go_to_jail

Harris County, in the latest move to keep its swelling jail population in check, is pursuing an agreement with neighboring Fort Bend County to send inmates to the suburb’s jail.

A Harris County Sheriff’s Office spokesman called the measure precautionary. If it is approved by commissioners at their meeting Tuesday, it’s not certain that Harris County would immediately begin sending inmates to the Fort Bend County jail. But it’s likely that Harris County in the near future will begin the transfers, especially as its jail population spikes in the summer months.

“Harris County officials asked if we had bed space available and we do,” Fort Bend County Sheriff Troy Nehls said in a written statement Friday. “They came out and looked at our facility and were impressed with what they saw. We will be able to accommodate the increased number of inmates within our current budget.”

[…]

Earlier this year, Harris County began sending hundreds of inmates to jails in Jefferson and Bowie counties.

What is different about the Fort Bend County proposal is that it targets pretrial inmates, or those in jail ahead of their court proceedings, said Harris County Sheriff’s spokesman Ryan Sullivan.

The Bowie and Jefferson transfers focused on inmates who had been convicted and were awaiting transfer to a state prison.

The pretrial inmate population is the biggest driver of the county’s high jail population, Sullivan said.

It’s also been the subject of intense scrutiny in recent years.

See here for the background. Everything I said then remains true now. What we are doing is the definition of dumb. It is our choice to jail thousands of people each year who are no threat to anyone. It is our choice to do something different. We need people in place – Sheriff, DA, judges – who will make the better choices.

Misdemeanor charge dropped against video fraudster Daleiden

Just the misdemeanor charge, not the felony.

Right there with them

Right there with them

A Harris County judge has dropped one of the criminal charges against an anti-abortion activist who was indicted after making undercover recordings of a Houston Planned Parenthood facility.

David Daleiden, one of the videographers who infiltrated Planned Parenthood Gulf Coast, had been charged with the very crime he tried to secretly catch Planned Parenthood committing — a misdemeanor charge for offering to sell or buy fetal tissue. But that charge was dismissed on Monday, according to the Harris County District Clerk website.

[…]

Daleiden’s team in April asked the judge to dismiss his indictments, alleging they were a result of improper proceedings by prosecutors and that the grand jury — originally asked to investigate Planned Parenthood, not the videographers — exceeded its authority.

In a statement Tuesday, Harris County District Attorney Devon Anderson said the judge’s ruling was not based on Daleiden’s motion to quash the indictments.

“The basis for the judge’s ruling was not raised by the defense at any time,” Anderson said. “We do not intend to appeal the judge’s decision. Our office remains focused on the felony charge pending in the 338th District Court.”

See here and here for some background. The Press explains why the misdemeanor indictment for offering to sell or buy fetal tissue was tossed:

Judge Bull reasoned that the indictment was defective because prosecutors did not list an “exception” to the criminal charge—essentially, prosecutors didn’t list a few scenarios in which the defendants’ actions would in fact be legal. One of those exceptions that prosecutors failed to list? It just so happens to be the very defense that Planned Parenthood mounted against the radical right’s attacks: “reimbursement of expenses…incurred by the donor of a human organ in connection with the donation of the organ.”

Yes, because prosecutors didn’t write down that exception in the formal indictment, Judge Bull says the case is void.

I’m not particularly concerned about this. It’s the felony charges that matter, and those are still in place for both Daleiden and Merritt, who apparently has not yet made a decision about whether or not to accept the offer of probation from the DA. As long as Daleiden in particular goes down in a blaze of self-righteous baloney at the end of all this, I’m good. The Chron, the Observer, and Trail Blazers have more.

Harris County crime lab experiencing DNA testing backlog

These things do happen.

I want one of these

Never miss a chance to embed the DNA Robot

Expanded testing for property crimes has helped create a backlog of more than 4,600 DNA cases in the Harris County crime lab, straining its ability to complete the processing of such evidence for sexual assaults and even homicide cases in a timely manner.

Officials with the Harris County Institute of Forensic Sciences say a relentless uptick in property crime, robbery and assault cases has stretched the lab’s resources. The spikes can be traced in part to the lab’s own push in recent years to expand its forensic operations and offer law enforcement agencies more DNA testing for property crimes.

The lab serves more than 60 law enforcement agencies, which rely on it to process DNA evidence as part of criminal investigations. Officials are particularly concerned about how the backlog has affected sexual assault cases, which they’ve pledged to make a priority as the cases have recently taken longer to finish.

Sexual assault cases took on average of 172 days to complete in 2015, far from the county’s 60-day goal and the roughly 60 to 90 days that they took from 2009 to 2013 The average for homicides and death investigations is now 238 days, though it is more difficult to set a benchmark in such cases because evidence often comes in piecemeal over time.

The backlog – defined by county lab officials as containing any case that has not been completed – has set off a debate over how to prioritize DNA testing in the short term and handle lesser offenses such as property crimes in the long term.

[…]

[Crime Lab Director Roger] Kahn said the lab already has essentially halted analyses of DNA in some property crimes. Last July, the institute said it would suspend “touch DNA” analysis – such as testing for microscopic skin cells containing DNA that naturally rub off on objects – for almost all property crimes.

The moves have contributed to a drop in the number of sexual assault cases that take more than 60 days to complete: after reaching 252 in January, that number was 148 last month, Kahn said.

He stressed that the high numbers are also in part because of new protocols to reanalyze some cases that have samples containing multiple people’s DNA. These, he said, can often be the most complex cases.

All this being said, Kahn acknowledged that the turnaround times are too high.

He said lab officials are looking at halting some analyses of assault and robbery cases. The lab is also planning to work with sexual assault nurse examiners to better identify samples to analyze in such cases, and is weighing other possible workflow improvements.

For their part, county commissioners on Tuesday approved the crime lab’s move to apply for a National Institute of Justice grant of more than $645,000 that would help its DNA division – the Forensic Genetic Laboratory – reduce the backlog. It has applied for and received the same grant since 2005.

Commissioners also approved a roughly $100,000 contract to outsource some property-crime testing to a private company, Bode Cellmark Forensics, an uncommon move but one that the county has made in the past.

[…]

It’s unclear what will happen to property crime cases, and possibly robbery and assault cases, that the county crime lab may set aside to focus on sexual assaults and homicides. Kahn said the lab works closely with law enforcement and the district attorney’s office to prioritize cases, even those involving property crimes.

At Wednesday’s meeting, District Attorney Devon Anderson questioned whether the lab should be making decisions of what types of cases to prioritize.

Sheriff Ron Hickman said telling the public that the county lab had the technology to solve crimes, but couldn’t use it because of lack of resources, would not “play well.”

“How do you get to say, ‘No?'” Hickman said.

Kahn said the current focus is on sexual assault cases. Then lab officials, with other public officials, will determine how best to use the lab’s resources.

There’s a lot there and I don’t want to make too big a deal over it. Both DA Anderson and Sheriff Hickman raise good questions, for which they deserve better answers than “we’ll figure it out later”. If this is a matter of resources, then Commissioners Court needs to address that. The County Crime Lab serves multiple cities in addition to the county, so it’s not just their own business that’s being affected.

We can’t discuss the Harris County crime lab without mentioning the Houston lab and the ongoing debate over whether the two should merge. I’ve noted before that there are questions about how the county handles crime lab issues and how the city’s needs would be accounted for. This situation highlights those concerns. As the story notes, the city’s crime lab has its own backlog issues, though they are smaller and seem to be on track towards resolution. I’m just pointing this out to note that there are questions to answer before anything can go forward. If you want this to go forward, which is certainly a reasonable thing, those questions need to be addressed. It’s not insurmountable, but it’s not nothing and shouldn’t be treated as nothing.