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Orlando Sanchez is not happy with the dominatrix investigation

This case is going to challenge headline and blog post title writers for the foreseeable future.

Orlando Sanchez

Two elected Harris County officials squared off Tuesday over a bizarre case in which a top treasury official was charged in a $35,000 check kiting fraud to meet the financial demands of a dominatrix.

Harris County Treasurer Orlando Sanchez was critical of how District Attorney Kim Ogg handled the criminal case against a top administrator in the county’s treasurer’s office, after he was arrested last week for an alleged check fraud scheme and claimed he was being blackmailed by a financial dominatrix.

“What’s disturbing to me is that the district attorney knew about the investigation six months ago,” Sanchez said Tuesday. “Neither the sheriff or the district attorney gave me a phone call—as a heads up without going into the specifics of the investigation—that there was somebody in my office being looked at.”

[…]

On Tuesday, Ogg defended the way her office handled the six-month investigation and when they alerted Sanchez.

“Because it was an ongoing investigation, we did a lot of work before any witnesses were talked to,” said said. “And that kind of investigation is never made public otherwise it is impossible to know who might be involved.”

The county’s top prosecutor said she phoned Sanchez minutes after confirming that her office was filing charges against Lueb.

See here for the background. I just want to say that “Financial Dominatrix” is going to be the name of my Liz Phair tribute band. Also, remember how I said that the last thing Sanchez would want would be for this to be a multi-day story? You’re doing it wrong, dude. Not that I don’t appreciate it, mind you.

On the matter of Sanchez’s complaint, the first thing I’d say is what if any policies are there regarding how criminal investigations into county employees like Gregory Lueb are handled? In other words, did Ogg’s office do more or less what previous DAs have done in this sort of circumstance, or was there a substantial difference?

Putting that aside for a moment, I can think of at least three reasons why Ogg might have kept this under her hat until her team was ready to file a case:

1. Not to put too fine a point on it, but they needed to be sure that Sanchez himself was not in any way involved.

2. Once they have cleared Sanchez, if he knows that one of his employees is being investigated, that may cause him to act differently around them and thus possibly tip off the target of the investigation. There’s a reason this sort of information is generally kept quiet.

3. Even if you can completely trust Sanchez’s poker face, knowing that one or more of his employees is being investigated may change his perception of them, and this may persist even if the investigation winds up being dropped. He – and this is true of anyone, not just Orlando Sanchez – may have a lingering suspicion or sense of doubt, regardless of whether there was a reason for it.

So, unless Ogg violated previously accepted protocols, I see no cause for Sanchez to be upset. He was told when he needed to know, and that seems like the way to go. KUHF has more.

Misdemeanor diversion

Sounds good to me.

Kim Ogg

Houston’s non-violent misdemeanor offenders will soon be cleaning up trash and invasive plant species plants along Buffalo Bayou in an initiative to help offenders clear up their criminal record, Harris County District Attorney Kim Ogg announced Wednesday.

The program, dubbed “Clean and Green,” has existed in several incarnations since the 1970’s and was one of Ogg’s campaign promises when she ran for DA in 2014, and again when she won in 2016.

“It’s a big reason why I ran,” the top prosecutor said Wednesday as she announced the program at the historic Allen’s Landing, a downtown recreational area on the bayou. “I wanted to ‘green’ criminal justice. I felt like our system could give back in a measurable, meaningful way. Counting the cubic tons of garbage or how many tons of plastic we pull out, it all has a public safety value.”

Misdemeanor offenders, 17 and older, will be allowed to clean up litter and invasive plants, skim waterways and perform other conservation services in public spaces across the county, especially along bayous and tributaries, according to Ogg.

Eligibility for the program, which starts this month, will be determined by prosecutors on a case-by-case basis and excludes defendants facing domestic violence, assault or weapons charges.

[…]

The initiative is expected to offer 160 offenders a month the opportunity to avoid a criminal record while reducing tax dollars currently spent on traditional prosecution and punishment of those offenders.

If selected, participants will be required to work one or two six-hours shifts. They will have to pay $240 to participate, unless they are indigent. Completion of the program fulfills the community-service requirement of pre-trial diversion contracts.

If they successfully complete the program, their criminal case will be dismissed and the arrest can be expunged, Ogg said.

I approve of all of this. This is what we should want to do with non-violent misdemeanor offenders. And yes, it’s what we voted for. Keep up the good work.

Kim Ogg’s first year as DA

I certainly approve of the job DA Kim Ogg has done so far.

Kim Ogg

The accomplishment Kim Ogg is most proud of after her first year as Harris County District Attorney was not implementing a new drug policy, energizing the division that holds police officers accountable or working to ensure victims’ rights.

It’s that the prosecutor’s office was able to stay open round the clock during Hurricane Harvey and in the weeks of the storm’s aftermath. More than 50 inches of water flooded courthouses and displaced the 24-hour intake division, the critical group which decides whether to accept charges presented by police officers and keeps track of who was arrested and why.

“I’m proudest of my employees because they maintained constant operations, 24/7, throughout the biggest natural disaster in Houston’s history,” she said earlier this monthin a wide ranging interview about her first year as district attorney. “We survived the storm surge.”

Ogg, a 56-year-old native Houstonian, became Harris County’s third female district attorney Jan. 1 after besting incumbent Devon Anderson in the November 2016 general election. The Democrat is Houston’s first openly gay DA although it rarely comes up. Unlike Annise Parker, Houston’s mayor from 2010 to 2016, who was well-known in politics because of her LGBT activism, Ogg was known for her criminal justice work, including running the city’s first gang task force, then helming CrimeStoppers of Houston. Ogg’s sexual orientation came up during last year’s campaign when Anderson labeled her a “liberal, pro-choice, lesbian” in an interview.

It was during that campaign that Ogg promised an administration that would champion drug reform, diversion courts and holding police officers accountable, all of which seem to be moving forward.

And that’s the key – Ogg promised a lot of changes, and she has made measurable progress on the things she has promised. Nowhere in the story is there a question about or exploration of something she hasn’t gotten around to yet. Some things will inevitably go wrong, and there will be issues on which her office faces stronger resistance from groups like the police and the bail bondsmen, and when that happens she and her crew will be tested in new ways. But at this point I can’t think of anything I’d have wanted her to do differently. Go read the rest, and to Kim Ogg and the DA’s office I say keep up the good work.

A little concern trolling from the WSJ

This is a story that tries to stir up concerns about all those Democratic Congressional candidates spending money and energy running against each other in the primaries. I flagged it mostly because of the CD07 content at the end.

Rep. John Culberson

In Houston, the Seventh Congressional District is ethnically diverse, well-educated, suburban and includes some of the city’s wealthiest voting precincts. Mrs. Clinton beat Mr. Trump here by 1.4 percentage points, but Mr. Culberson won by 12 points.

The DCCC sent a full-time organizer to Houston in February. She has been working to recruit volunteers and train organizers to defeat Mr. Culberson, without favoring a specific Democratic challenger.

The top fundraiser is Alex Triantaphyllis, founder of a nonprofit group that mentors refugees. He says the party’s “best approach is to be as connected and engaged in this community as possible.”

Primary opponent Laura Moser said at a recent candidate forum that many people in the party “are trying too hard to win over the crossover vote while abandoning our base.” She became a national activist last year by starting an anti-Trump text-message service for “resisting extremism in America.”

In August, Ms. Moser criticized Rep. Ben Ray Luján (D., N.M.), the current DCCC chairman, in Vogue magazine for saying last spring that the party shouldn’t rule out supporting antiabortion candidates.

Elizabeth Pannill Fletcher, a lawyer also running in the Democratic primary, says she welcomes the lively primary race because it helps to have “a lot of people out there getting people motivated” about next year’s midterm election.

She also acknowledges a downside: “We are raising money to spend against each other rather than against John Culberson.” Another candidate has already run unsuccessfully for the seat three times.

Some Democratic candidates worry they will face pressure to tack to the left because people who attend political events early in the campaign tend to be the party’s most liberal activists. A questioner at a forum in July sponsored by the anti-Trump activist group Indivisible demanded a yes or no answer on whether candidates support the legalization of marijuana.

“There is definitely a danger if you have a circular firing squad over who is the most leftist in the room,” Democratic candidate Jason Westin, an oncologist, said in an interview. “This is not a blue district.”

This was the first mention I had seen of the DCCC organizer in CD07. Since that story appeared, I’ve seen a couple of Facebook invitations to events featuring her, which focus on basic organizing stuff. As we now know, there’s a Republican PAC person here in CD07. It’s getting real, to say the least.

I have no idea why the story singles out marijuana legalization as an issue that might force one of the CD07 candidates to “tack to the left”. Support for marijuana legalization is pretty mainstream these days, and that includes Republicans. The second-highest votegetter in Harris County in 2016 was DA Kim Ogg, who ran and won on a platform of reforming how drug cases are handled, which includes prosecuting far fewer of them. Presumptive Democratic nominee for US Senate Beto O’Rourke supports marijuana legalization. If any candidate in CD07 feels pressured to support marijuana legalization, it’s because they’re out of step with prevailing opinion, not because they’re being dragged in front of an issue.

Finally, on the broader question of all these contested primaries, Lizzie Fletcher mostly sums up how I feel. I believe all these primaries will be a big driver of turnout, which will help set the narrative of higher Democratic engagement. If there’s anything a candidate should feel pressed to do, it’s to pledge to support whoever wins in their primary so we can present a united front for November. I’m sure there will be some bumps in the road and some nastiness in these campaigns as the days wear on, but overall this story sounds like the Journal trying to throw a rope to its surely despondent Republican readers. We Dems were telling ourselves the same kind of story in 2010 when the Tea Party was first making things uncomfortable for Republicans. I’d rather have this energy than not, even if some of it will ultimately be wasted.

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.

Charges against Dukes dropped

She beat the rap.

Rep. Dawnna Dukes

Travis County prosecutors have dropped their criminal charges against state Rep. Dawnna Dukes, D-Austin, saying Monday that a felony case against the state lawmaker should never have been brought.

The announcement ends a months-long legal saga in which Dukes was accused of abusing public office after a grand jury indicted her on 13 felony charges and two misdemeanor charges earlier this year. But prosecutors have, over recent weeks, been forced to admit that their case against the Austin Democrat was based on flawed evidence.

“Representative Dukes was innocent from day one,” said Dane Ball, an attorney for Dukes, in a statement. “We’re glad Representative Dukes can get back to serving her constituents without the distraction of these baseless charges.”

The felony case against Dukes claimed she had unlawfully tampered with a government record by falsifying entries on travel vouchers to obtain money for expenses she was not entitled to. But Travis County prosecutors were forced to put their felony case on hold last month after claiming a key witness in the case — who managed the official paperwork for the Texas House of Representatives — had changed his story.

Then, earlier this month, prosecutors were forced to drop one of the felony charges after acknowledging they had misread a date on Dukes’ cellphone, which formed a key piece of evidence they had gathered against her.

See here for more on that previous update. To say the least, the Travis County DA’s office did not cover itself in glory in this case. Margaret Moore needs to take a hard look at how this happened, and hold some people accountable for it. I’m not a fan of Dawnna Dukes, but she did not deserve to go through this.

Which is not to say that Dukes has been exemplary throughout. She’s a mediocre legislator who misses a lot of votes and as the story notes settled some misdemeanor issues related to misuse of funds by agreeing to pay everything back. She will have a full slate of opponents next year, most of whom once intended to run in a special election after she was supposed to resign her seat in January. I won’t be sorry to see her lose, if she does. Still, I have to figure that the ending of this saga will help in her re-election bid. She was wronged and she prevailed, and that’s an appealing story to tell the voters. RG Ratcliffe has more.

More pre-trial diversion

DA Kim Ogg moves forward on more campaign promises.

Kim Ogg

During a press conference Tuesday, Ogg laid out in broad strokes the policy recommendations written by the committees and emphasized that she is seeking participation from experts and Houston’s leaders.

“We listen to the community,” she said, flanked by about 30 volunteers including former HPD Chief C. O. Bradford and Thurgood Marshall School of Law professor Lydia D. Johnson. “We are evidence-based and data driven, but it is important to know how the community wants tax dollars spent to enhance public safety.”

Ogg released the full reports from committees on officer-involved shootings, evidence integrity, equality, immigration, bail-bond reform, mental health and diversity.

Many of the reforms proposed using technology and data more efficiently to streamline the criminal justice system, such as moving to a paperless district attorney’s office or using evidence-based risk assessments to determine bail amounts.

Tarsha Jackson, the Harris County Director with the Texas Organizing Project, was on the bail bond committee and applauded Ogg for involving people with different backgrounds, some with conflicting interests.

“It was a tug of war,” Jackson said of her committee that included a bail bondsman and a representative of the Texas Criminal Justice Coalition. “We had deep debate on what the district attorney can do in regard to bail reform, about what’s possible. And the final results were some good policies that she can implement.”

You can see the committee reports here. The themes all came from the campaign, and however you feel about the conclusions, I’d hope we can all respect a process that involved a broad spectrum of stakeholders who worked together across a range of perspectives. The Press read through the reports so you don’t have to.

Among the most noteworthy is the passing mention that Ogg’s administration “will work with all of the Harris County Law Enforcement agencies” to implement cite and release “for appropriate misdemeanor crimes,” which was not mentioned during the press conference. This has been a topic of debate for years, if not a full decade, after the Texas Legislature authorized police in 2007 to issue citations for various small-time crimes rather than arresting people and hauling them to jail. It’d be like getting a traffic ticket, then going to court for it later. It applies to crimes such as driving with an invalid license, criminal mischief, graffiti and possession of less than four ounces of pot (Ogg already diverts most pot cases).

[…]

Also noteworthy are plans to expand mental health diversion. Staci Biggar, a Houston defense attorney who was on Ogg’s mental health transition team panel, said that the idea was to transition people charged with low-level crimes like trespassing, often related to a person’s mental illness, away from jail and into treatment. Rather than asking for money to fund a program, she said judges can still issue pretrial diversion contracts to mentally ill defendants and individualize the terms based on that person’s needs.

“The idea is placing more people on bond and placing them in facilities, making pretrial conditions be to go see a particular health provider, or maybe they need to stay in a particular living situation,” Biggar said. “They can order somebody to see a doctor and they can order somebody to be treated by one organization. If you take a misdemeanor [defendant] and maybe that’s the first or second time they’re arrested, yes, you’ve been arrested, but we’ll drop the charges if you go and do these various things. It shouldn’t be that we wait until you’re really, really in trouble before there’s a stronger intervention for mental health.”

Other noteworthy nuggets from the eight transition team reports include the end to hiking bail to sometimes tens of thousands of dollars for suspected undocumented immigrants; vetting expert witnesses in capital murder cases more extensively and never “expert shopping”; and releasing to the public body-cam footage of officer-involved shootings as long as it does not impede an ongoing investigation — among various recommendations from the officer-involved shooting panel headed by former Houston police chief C.O. Bradford.

As Ogg says, you can judge her by her results in 2020. I think she’s off to a great start.

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.

Dukes gets deferral on felony charges

Possibly good news for one embattled legislative incumbent.

Rep. Dawnna Dukes

The Travis County district attorney will not pursue, at least for now, the most serious charges against state Rep. Dawnna Dukes, saying prosecutors have renewed their investigation into the travel vouchers at the heart of the 13 felony counts the Austin Democrat is facing.

District Attorney Margaret Moore confirmed to the American-Statesman on Thursday that prosecutors have obtained new information relating to the vouchers, which Dukes is accused of falsifying for financial gain. But Moore declined to elaborate on what the new information is.

“The district attorney’s office recently received new, unexpected information pertinent to that case and the new information has created a need for further investigation by this office and the Texas Rangers,” Moore said.

The case had been set for trial in October. On Wednesday, Moore’s office informed Dukes’ defense lawyers and state District Judge Brad Urrutia of her decision.

Moore said prosecutors will move forward with the October trial date on two misdemeanor charges against Dukes relating to allegations of her using legislative staffers for personal gain.

[…]

The 13 felony counts stem from monthly travel voucher forms Dukes signed in late 2013 and 2014. The forms stated that, on the dates in question, Dukes “traveled by personal car to the Capitol to attend to legislative duties.” She was paid $61.50 for each day she claimed on the forms.

The House Manual of Policies & Procedures states that lawmakers can collect the travel pay between legislative sessions for trips to Austin “to attend to legislative duties in their office.”

KiYa Moghaddam, a former Dukes staffer who prepared the voucher forms for Dukes during that time, told the Statesman last year that she questioned Dukes about misusing the forms.

“I told her that she had to actually be at the Capitol,” Moghaddam said last year. “I was thinking about the fact that I’m a taxpayer, and I don’t necessarily want my tax payments going to someone who’s not working for the interest of the constituency she represents.”

The indictment says that Dukes did “knowingly make a false entry in a government record, and present and use said government record with knowledge of its falsity, by instructing her staff to add a false entry to her State of Texas Travel Voucher Form.”

Dukes was paid $799.50 for the 13 days included in the indictment. She was a frequent user of the voucher forms, collecting $4,674 from 76 days she claimed in the first nine months of 2014. She abruptly stopped collecting the travel pay at that time, which was when Moghaddam questioned her use of the vouchers.

See here for the most recent update. We don’t know what new evidence the DA’s office has, so we can’t say whether this may lead to charges being dismissed or reduced, or possibly added. Or maybe it puts the DA in a stronger position to negotiate a plea deal. It seems more likely than not to be good news for Dukes, but let’s wait and see what the next story is before drawing any conclusions. In the meantime, she still faces trial on the misdemeanor charges, and multiple primary opponents who have been calling for her to honor her previous pledge to step down.

Local government buildings took it on the chin from Harvey

Houses, businesses, schools, churches, government offices – the destruction caused by Harvey and the bill to fix it all keeps adding up.

Local governments grappled Tuesday with the staggering costs of responding to and cleaning up after Hurricane Harvey, a trifecta of wrecked infrastructure and damaged buildings, around-the-clock overtime for rescue and recovery and a massive, escalating cleanup effort to bring the Houston area a semblance of normalcy after days of chaos.

City and county officials could not provide complete estimates of the impact to their coffers from Harvey’s wrath – crews still were inspecting buildings Tuesday and workers logging 120-hour weeks walking door-to-door across Harris County’s nearly 1,800 square miles to survey the widespread devastation.

Amid the uncertainty, officials agreed that even for a government apparatus well-versed in weathering and recovering from severe storms, Harvey’s damage was unlike anything ever seen here before.

“I’ve been here 30 years,” said Harris County Engineer John Blount. “I was through Allison. I was through Ike, and this was the worst I have ever seen.”

On Tuesday, public officials across the Houston region said they were only beginning to understand the scope of Harvey’s damage and its impact on public services.

Mayor Sylvester Turner sent a letter to Gov. Greg Abbott this week, requesting state and federal funding and detailing “a catastrophic strain on our infrastructure, with damages estimated at more than $5 billion.”

[…]

The county Tuesday was actively relocating the hundreds of employees that work in the criminal justice center, including the district attorney’s 330-lawyer operation.

Hundreds of prosecutors and staffers with the district attorneys office, many dressed in T-shirts and shorts, spent Tuesday pulling their personal possessions out of the 20-story downtown criminal courthouse next to the still-swollen Buffalo Bayou.

The move is expected to slow the local criminal justice system as everyone involved will have to work from unfamiliar offices and commute to courtrooms spread across the downtown courthouse complex.

Neither the city of Houston nor Harris County had a detailed accounting of the damage yet, which will include vehicles as well as buildings, plus lots of overtime costs. I suspect that $5 billion number cited above includes private losses, but it’s not clear to me. The point is that in the short term, a lot of the federal and state relief money needs to go towards paying the workers who did their jobs so heroically during the storm and its aftermath, and towards getting these damaged institutions back up and running. The alternative is a huge amount of debt, and we’ll all pay a lot more for that.

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.

Fort Bend DA to retire

The end of an era, and an opportunity for change.

Fort Bend County District Attorney John Healey announced Friday that he will not seek re-election, marking an end to what will be 26 years in office, according to a news release.

Healey said he will retire at the end of his term in 2018 to spend time with his wife. He will be a few weeks shy of 64, he said in an interview.

“I’ve often said retirement is too often wasted on the elderly,” he said. “There’s a whole other phase of life that I want to be able to enjoy with my family.”

Healey first took office by judicial appointment Nov. 18, 1992, when Fort Bend County was a far cry from the bustling county it has become. He presided over the growth of the office from what was then 16 prosecutors to what is now 64, according to the release.

[…]

Healey won in 2014 with 58 percent of the vote. His term will end Dec. 31, 2018.

First, let me say that I wish DA Healy well in his retirement. From a quality of life perspective, I think he has the right idea. Politically speaking, this is a big opportunity for Democrats in Fort Bend, as it is surely easier to win an open seat rather than knock off an incumbent with no obvious demerits. Finding a candidate would be the first order of business; former two-term County Commissioner Richard Morrison comes to my mind, but I’m just speculating idly. Fort Bend Democrats have other races of interest next year – HD26, Commissioners Court Precinct 4, the other countywide offices; big parts of SD17 and CD22 are also in Fort Bend – but this is a definite prize. I’m sure it will draw serious interest.

No deal for Dukes

The die is cast.

Rep. Dawnna Dukes

The Travis County District Attorney’s office on Tuesday said its offer to drop all corruption charges against state Rep. Dawnna Dukes, D-Austin, in exchange for her agreeing to resign immediately had expired.

In a statement sent to The Texas Tribune after 5 p.m. Tuesday, Travis County District Attorney Margaret Moore said she’d had no contact from the attorneys for Dukes.

“The offer to resolve this matter has expired and is no longer available,” Moore said in a statement. “We will be ready for trial.”

[…]

“It is truly not dignifying this new low that such character assassination has hit in this web woven to influence a court of public opinion,” Dukes wrote in a Facebook post Monday night. “As such, it would be indecorous of me to respond to impertinent allegations.”

When the Tribune asked Dukes about the DA office’s deal Tuesday morning, Dukes said, “I’m not talking about that right now.”

Dukes declining the deal means the district attorney’s office will move forward with the trial, which was set by Judge Brad Urrutia for Oct. 16.

“It’s time to move on. Some form of this deal has been discussed [with Dukes] since September,” Moore told the Tribune on Monday. “We’ve got to go to work, and we’re going to be preparing for trial.”

See here for the background. On the Off the Kuff Facebook page, the point was raised that using the threat of prosecution to push an elected official to resign may not be something we should want. It’s a valid concern, and I see where it comes from. I guess I see this as part of a plea agreement, one which Dukes has chosen not to take. All other issues aside, we’ll know in October whether she made a wise decision.

Dukes offered deal to resign

Take it, I say.

Rep. Dawnna Dukes

Beleaguered state Rep. Dawnna Dukes has until the end of the day Tuesday to resign from office — and submit to a drug and alcohol assessment — as part of a plea offer in her criminal corruption case.

The plea offer is similar to one Dukes rejected last year prior to the Texas Rangers launching an investigation that led to a Travis County grand jury indicting Dukes on 13 felony charges and two misdemeanors.

Dukes did not respond to messages left by the American-Statesman on Monday morning. She told reporters in June after pleading not guilty that she would not take any plea deals and instead will proceed to trial on Oct. 16.

The deal expires at the close of the business day on Tuesday and will not be re-offered, according to Justin Wood of the district attorney’s office.

[…]

In exchange for accepting the offer, the DA’s office has agreed to drop all charges, but only after Dukes has complied with all conditions.

See here, here, and here for some background. As she has not yet been convicted of anything, Dukes is not mandated to resign by my lights. It’s her long term record of lousiness as a representative that makes me wish to see the back of her. Do us all a favor and take the deal, Dawnna. It would be the best thing you’ve done for your constituents in recent memory. The Trib has more.

The Observer talks to Kim Ogg

A good read:

Kim Ogg

You decriminalized the possession of small amounts of marijuana. Jeff Sessions has signaled that he seeks to ramp up the war on drugs. What power does the federal government hold over your policy decisions?

I enjoy total discretion under Texas law as to who I charge and with what crime. The federal government has never been able or even really wanted to influence local prosecutors in terms of individual charging decisions. I don’t fear Sessions’ interference, although I think that states — certainly states where marijuana is legal — may face states’ rights battles with the federal government.

What pushback have you faced in Texas?

The lieutenant governor accused me of creating a sanctuary city. I think he’s looking to pick a fight with Houston. It seemed like a partisan attack more than a substantive one. He said Houston would become a drug-user sanctuary, and then I heard the same language being used by [DA] Brett Ligon of Montgomery County. They have the same political consultant, Allen Blakemore.

I think it was posturing simply because I did something that was popular and pragmatic. The program will save about $27 million a year — either save it or redirect it. I think this presents a clear and present threat to the Republican power structure, the fact that local Democratic government in Harris County is moving forward on this reform agenda that has bipartisan support. They’ve got an eye toward the 2018 election cycle.

Will this attack have any impact on Harris County? Or is this all just noise and politics?

Anything is possible, but the evidence will speak for itself. In the first six weeks of the program we’ve diverted 576 people [from jail], and the savings is over $1.5 million. The program will rise and fall based on whether we’re continuing to save lives and money. Of those 576 people that have been diverted so far, I know that none of them have lost their job because of an arrest for a misdemeanor amount of marijuana. I know that none of them have been turned away from a housing opportunity because of the marijuana conviction. So far, so good on both the human and the fiscal front.

There’s more, so go read the rest. One thing to observe, eight months into Ogg’s first term of office, is how tranquil things have been. Kim Ogg has cleaned house, made major changes to how low-level drug cases are handled, has sided with the plaintiffs in the lawsuit over the county’s bail practices, and inherited a controversial murder case (David Temple) that requires a retry–or-dismiss decision. Yet so far there has been little controversy, and basically no news stories of the “what is going on with the DA’s office” variety. She’s had a lot to do, she’s had a lot that she wanted to do and promised to do, and so far she’s done it with a minimum of fuss. That’s quite an accomplishment.

That said, once the Legislature is out and election season kicks in, the politics of this will get interesting. Ogg is in opposition to Republican judges and County Commissioners on the bail issue, and she opposes the “sanctuary cities” law, which will put her even more in Dan Patrick’s crosshairs. And not to put too fine a point on it, but with Annise Parker in the private sector (modulo a decision on her part to run for County Judge next year), Kim Ogg is now the most high profile gay person holding political office in Texas. That in and of itself would make her a target. Don’t be surprised when – not if – she is prominently featured in some ugly attack ads next year.

Still a few bugs in the system

A continuing story.

While Harris County officials are complaining that a federal judge’s bail order threatens public safety, the county has failed to provide more than 100 low-level defendants with pretrial services aimed at ensuring they make their court dates.

The latest revelations come amid criticism from District Attorney Kim Ogg, who accused county officials of trying to deliberately undermine the success of defendants released on personal bonds to bolster the county’s argument.

“Clearly the hope is that the reformed bail process fails,” Ogg said in a June 30 email obtained by the Chronicle. “This is necessarily a violation of their ethical duty and certainly not in the best interest of ordinary Harris County citizens.”

Ogg’s email did not identify which officials she believed might be responsible, and her office referred a request for additional comment to a court filing in which she supported changes to the county’s cash-bail system for misdemeanor offenses.

[…]

By missing court, the defendants also miss out on the assistance provided by the county’s Pre-Trial Services Division, such as text reminders about upcoming court dates that other defendants get seven days in advance and again on the day of the hearing.

Kelvin Banks, director of pretrial services, said a vendor, Voice4Net, manages the text messages for the county. He said his office is working with the vendor to set up reminders for those who are released by the sheriff, and is moving forward with plans for an additional staff member and training at the jail.

He said Monday he was reviewing resumes.

“We want to make sure we’re doing everything we can do to give defendants the best opportunity to be succesful on pretrial release,” Banks said.

Another vendor, called Uptrust, met with county officials on June 28, two days before Ogg sent her email, proposing a two-way messaging system that allows defendants to respond and provides information on childcare options and transportation.

It’s a little hard to say what is going on here, based on this story. There’s a lot of he-said/she-said in there. My basic premise all along is that the county has very little credibility on this issue, so I generally discount the complaints from Commissioners and judges about how hard this all is and how they’re Doing Their Very Best and Just Need A Little More Time and so on and so forth. Every action by the county – specifically, by those who continue to fight to support the status quo – is one of foot-dragging and reluctance to make changes, even small ones. I’ve yet to see a show of good faith. If we ever get to that point, then maybe I’ll take their complaints seriously. Until then, I say quit whining and do what the judge ordered you to do.

SCOTUS will not hear Harris County bail appeal

Let this please be the end of the line.

U.S. Supreme Court Justice Clarence Thomas has denied Harris County’s request to stop the release of misdemeanor inmates who can’t afford to post cash bail.

The county had appealed late Tuesday to halt Chief U.S. District Judge Lee H. Rosenthal’s directive that it begin releasing some inmates accused of misdemeanor crimes who cannot afford bail. That order had gone into effect Tuesday, and continued Wednesday, while Thomas considered the county’s application.

Thomas’s denial means some inmates will continue to be released on personal recognizance ahead of their trials if they cannot afford bail. The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’s denial. Often follow-up requests to other justices are referred to the full court, according to the public information office for the Supreme Court.

Meanwhile, an appeals court is also considering the county’s appeal of Rosenthal’s full order.

See here for the background. The full Chron story has more details.

Chief U.S. District Judge Lee Rosenthal in Houston issued a 193-page ruling in April that the county’s bail system was unconstitutional and ordered the release of indigent misdemeanor defendants using personal bonds.

The 5th U.S. Circuit Court of Appeals on Tuesday morning rejected the county’s efforts to halt Rosenthal’s injunction while they challenged the full ruling in court. The county filed the same day for emergency consideration before the U.S. Supreme Court.

The latest legal blow left county officials weighing their options and refocusing efforts on challenging the larger order from Rosenthal, said First Assistant County Attorney Robert Soard.

The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’ ruling. Follow-up requests to other justices often are referred to the full court, according to the high court’s public information office.

Harris County District Attorney Kim Ogg – whose office has already begun supporting personal bonds for misdemeanors – praised the court’s decision.

“There is no longer any legal reason why the county cannot comply with Judge Lee Rosenthal’s order,” she said, in a written statement. “Holding people in jail solely because they are poor violates due process, and the courts at every level of our federal judiciary have clearly spoken.”

[…]

Precinct 3 County Commissioner Steve Radack said the county wants a chance to complete its reforms without federal intervention.

“I want the end result to be fairness, and that’s what we have been striving for,” Radack said. “I don’t think you can always get court-ordered fairness.”

The bail bond industry has also opposed the order, which will release thousands of potential clients without requiring them to post bond.

Veteran bondsman Carlos Manzano, of Americas Bail Bonds, said he and many of his colleagues believe the overuse of personal bonds will create a dangerous situation for the community.

“It’s kind of like just like giving everybody a slap on the hand,” he said. “It’s going to blow up in the county’s face. It’s just a ticking time bomb.”

[…]

Legal experts said the county has just about used up all its options in challenging Rosenthal’s order.

“There’s no question that Justice Thomas has concluded that there isn’t clear and obvious irreparable harm to the state if the stay isn’t granted,” said Lonny Hoffman, a professor at the University of Houston Law Center who specializes in federal procedure.

Sarah R. Guidry, executive director of the Earl Carl Institute for Legal and Social Policy at the Thurgood Marshall School of Law at Texas Southern University, said Thomas’ rejection of the county’s appeal will force local changes.

“This is going to put a fire under the county to figure out how to implement this,” she said. “It’s also going to have a huge impact on the bail bonds industry. They’re going to have to figure out a different way to make a living. They’re not going the get the bulk of their income off of poor people who are charged with low-level crimes.”

You know where I stand on this, so you know what I think of those BS fearmongering arguments from Steve Radack and the bail bond people. But hey, if I’m wrong then we’ll find out, because the county now has no choice but to comply. And when we find out that they’re the ones that are wrong and that nothing too bad happens, then what exactly will be the point of continuing to appeal? Settle now and save whatever dignity and lawyers’ fees we still can. It’s the only rational option. Lisa Falkenberg has more.

Fifth Circuit reinstates bail order

Good.

Harris County took the fight over its controversial bail system to the U.S. Supreme Court on Tuesday, even as county officials scrambled to plan the imminent release of dozens of misdemeanor defendants held behind bars who cannot afford to post cash bail.

A federal appeals court ruling earlier Tuesday had greenlighted the release of hundreds of poor inmates held in the Harris County Jail on misdemeanor charges ahead of their trials, and Sheriff Ed Gonzalez prepared for the release of as many as 177 people starting Wednesday morning.

But in an emergency filing late Tuesday with the nation’s highest court, Harris County asked for another halt to the ruling by Chief U.S. District Judge Lee H. Rosenthal.

The county’s request went to Supreme Court Justice Clarence Thomas, who handles appeals requests from the 5th U.S. Circuit Court of Appeals. Thomas can either rule on the matter himself or take it to the full court, according to the county attorney’s office.

“In the absence of a stay, the district court’s order that Harris County — the third-largest jurisdiction in the nation — immediately release without sufficient surety untold numbers of potentially dangerous arrestees is certain to cause irreparable harm,” the county’s appeal states.

[…]

The appeal to the Supreme Court came at the end of a whirlwind day for the county in a closely watched case targeting a bail system in which poor people accused of low-level misdemeanors frequently are kept in jail because they can’t afford to post cash bail while awaiting trial.

On Tuesday morning, a three-judge panel from the 5th Circuit Court determined that Rosenthal’s ruling would remain in effect until the case goes to trial. The ruling set in motion the release of up to 177 misdemeanor detainees, who do not have money to pay cash bail and who do not have other restrictions such as mental health evaluations or federal detainers.

The inmates affected by the ruling account for about 2 percent of the total jail population of 8,800, sheriff’s officials said.

The county will comply with Rosenthal’s order until the U.S. Supreme Court weighs in.

“We know we all have to follow the order of a federal district court,” said Robert Soard, the first assistant county attorney. “We’re working with both the sheriff and pretrial services, and we’re going to try to accomplish that as seamlessly as we can.”

The sheriff’s office expected to begin releasing qualified inmates early Wednesday.

“It doesn’t mean that 177 people will walk out,” said Jason Spencer, spokesman for the sheriff. “That would be the absolute highest number. In all likelihood it will be less than that.”

See here for the background. I’m a little short on time, but you know where I stand on this. I’m rooting for Justice Thomas to decline to take up the county’s appeal, and I look forward to the county having to comply with the order. Maybe then we can finally bring this matter to a close. A statement from the Texas Organizing Project is beneath the fold.

(more…)

Ogg joins with other DAs in criticizing new Justice Department sentencing guidelines

As well she should.

Kim Ogg

Harris County District Attorney Kim Ogg on Friday joined 30 other sitting and former district attorneys in a letter protesting U.S. Attorney General Jeff Sessions’ recent push for harsher sentences in America’s federal courts.

“This is a return to a failed policy of a generation ago,” Ogg, a Democrat, said of the directive. “It did not make the public safer then and it will not make the public safer now.”

A week ago, Sessions ordered that federal prosecutors should bring the toughest charges possible against most suspects, a move seen as a reversal of Obama-era policies that will send more people to prison and for much longer terms.

Prosecutors across the country, including Ogg, criticized a return to failed drug-war policies that would likely unfairly affect minorities and fill prisons with nonviolent offenders.

The open letter was orchestrated by Fair and Just Prosecution, a group that works with prosecutors around the nation.

Miriam Krinsky, executive director for the group, said in a news release that the letter reflects a trend among a “new wave of prosecutors nationwide who are rejecting excessively punitive policies in favor of data-driven and sensible approaches to improve public safety.”

You can see a copy of the letter here. I can’t find a website or Facebook page for “Fair and Just Prosecution”, so this is about all I know. Though the Sessions directive doesn’t affect local prosecutors, the Justice Department does set a tone, and it’s a bad one in this case. Pushing back is the right thing to do, and I’m glad once again to have voted for a DA who is willing to do that.

Special prosecutors named in Temple case

We’ll see how they proceed.

The Texas Attorney General’s Office has been tapped to prosecute the murder case against former Alief Coach David Temple in the 1999 death of his pregnant wife.

State District Judge Kelli Johnson appointed Lisa Tanner and Bill Turner, two lawyers with the AG’s office, as special prosecutors almost two weeks after Harris County District Attorney Kim Ogg withdrew from the case because of potential conflicts of interest with her office.

Both Temple’s attorney and a spokesman for the victim’s family praised the choice.

“We’re thrilled beyond thrilled to have these prosecutors appointed,” said victims’ advocate Andy Kahan. “We couldn’t have asked for a better choice.”

He said he hopes they put Temple back in prison for the slaying of Belinda Lucas Temple, who was 8 months pregnant with the couple’s second child when she was killed in their home.

“We’re confident that at the end of the day, they’ll see things the way we’ve seen things since 1999,” he said.

Temple’s defense attorney, Stanley Schneider, likewise praised the choice.

“Lisa Tanner has been trying cases around the state for probably 30 years,” said attorney Stanley Schneider. “She always shows up prepared.”

Tanner and Turner will first have to decide if they are going to retry Temple, who maintains his innocence.

See here for the background. The decision about whether to proceed at all or not is the first big choice Tanner and Turner will have to make. At some point one side or the other isn’t going to be happy with them anymore, but at least for now no one is complaining about not getting a fair shake.

Harris County bail order halted

Very late in the day on Friday.

A federal appeals court granted Harris County a last-minute reprieve Friday in a contentious civil rights lawsuit, calling a temporary halt to a judge’s order that would have altered the way cash bail is handled for hundreds of people jailed on misdemeanor charges.

In an order posted after the courthouse closed Friday, the 5th U.S. Circuit Court of Appeals granted the request of the county’s teams of lawyers to stop the order – set to take effect Monday – until the appeals court can further review the matter.

A three-judge panel of the court notes the temporary halt to the order was issued “in light of the lack of time before the district court’s injunction will take effect and in order to allow full consideration of the following motions and any responses thereto.”

First Assistant County Attorney Robert Soard said the ruling will give the court time to fully consider the issues.

“The county attorney is pleased that the 5th Circuit has granted the stay to give us more time to work toward a settlement that is in the interest of all the people of Harris County,” he said late Friday. “They said, ‘Let’s just stop a minute.'”

Neal Manne, who is among the lawyers representing the inmates, said he respects the temporary ruling.

“We have great confidence that Judge Rosenthal’s decision and injunction will eventually be upheld,” he said.

Criminal Court at Law Judge Darrell Jordan – who was the only judge who did not want to appeal the decision – was disappointed with the appeals court decision.

“I don’t know why we’re still fighting this,” he said. “Millions of dollars of Harris County money is going to be wasted.”

As you know, I agree entirely with that sentiment. I had also drafted and prepared a longer post on Friday on the assumption that the Fifth Circuit would not halt Judge Rosenthal’s order. I saw this story before I went to bed and took this post off the schedule for yesterday, swearing under my breath about the late change. In the interest of not throwing away what I had already written, I’ve got that post beneath the fold. This is what I would have run if the Fifth Circuit hadn’t intervened. I have faith that once they do have a hearing they will reverse themselves, but until then we wait.

(more…)

Special prosecutor to be appointed in David Temple case

Seems like the right call.

Kim Ogg

Harris County District Attorney Kim Ogg is asking for a special prosecutor to handle the murder case against former Alief Coach David Temple, adding new scrutiny to a decades-old case that continues to stir controversy.

Ogg filed court papers Friday to withdraw from the case because of potential conflicts of interest with her office and sought appointment of a special prosecutor.

The news left the family of Belinda Lucas Temple in grateful tears, holding out hope that Temple will once again stand trial for the 1999 killing.

“We recognize that we’re right back where we were in 1999,” victim’s advocate Andy Kahan said, standing next to Belinda’s brother, Brian Lucas, after a court hearing Friday. “But that’s the hand we’ve been dealt and, considering the circumstances and alternatives, we’re ready to move forward.”

[…]

“We’re withdrawing from the case and urge the court to appoint someone with no dog in the fight,” said David Mitcham, head of the DA’s trial division. “The tentacles of this case are just so extensive that we don’t want to create even the appearance of any impropriety.”

Ogg, who took office Jan. 1, said in court filings that two members of her office have possible conflicts. Former judge David Mendoza, who previously overruled Temple’s motion for a new trial, is now chief of Ogg’s Professional Integrity Bureau. And Steve Clappart, Ogg’s chief investigator, chased down leads on alternative suspects while working as an investigator for a previous district attorney. Clappart then stood with Temple’s lawyers as a private investigator in 2015 when they declared Temple was innocent.

Ogg reviewed the file for four months before deciding to seek a special prosecutor.

“Our duty is simply to do justice, not just to win,” Ogg said in a statement after the court hearing.

Temple’s defense attorney disagreed with the move, saying neither Mendoza nor Clappart were witnesses in the case.

“David is innocent and we look forward to our day in court,” attorney Stanley Schneider said.

State District Judge Kelli Johnson will appoint a special prosecutor, who will then decide whether to re-try Temple or dismiss the case.

See here and here for some background. This case is messy enough that having a fresh set of eyes on it, belonging to someone who has no connection to it or political ambitions that could be affected by it, is a good idea. I just hope that our Commissioners Court is less jerky about paying for the ad litem prosecutor than those jokers in Collin County have been. The Press has more.

Harris County bail system ruled unconstitutional

Damn right.

A federal judge in Houston Friday issued a scathing denouncement of Harris County’s cash bail system, saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail.

In a 193-page ruling released Friday, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates May 15 while they await trial on misdemeanor offenses.

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution.

“Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan Hecht.

The judge also granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants taken into custody.

The ruling – a temporary injunction that will remain in place until the lawsuit is resolved pending appeal – will not apply to those charged with felonies, or those who are being detained on other charges or holds.

First Assistant County Attorney Robert Soard said late Friday officials are reviewing the orders.

“No decision has been made at this time concerning an appeal of the preliminary injunction,” he said.

See here for the background, and here for a copy of the ruling. Grits highlights a key aspect of it.

Judge Rosenthal heard testimony from the Hearing Officers setting bail amounts on the front lines and poignantly found them non-credible: “The Hearing Officers’ testimony that they do not ‘know’ whether imposing secured money bail will have the effect of detention in any given case … and their testimony that they do not intend that secured money bail have that effect, is not credible.” In fact, she attributed “little to no credibility in the Hearing Officers’ claims of careful case-by-case consideration.” In the hearings she watched, they “treat the bail schedule, if not binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.”

If Judge Rosenthal were Politfact columnist, she’d be giving the Hearing Officers a “Pants on Fire” rating. To the extent that appellate courts must rely on her credibility assessments, and on many topics, they must, those lines may well preclude quite a few appellate paths for the defendants.

Her critique extended beyond the Hearing Officers, though to elected judges acting as “policymakers” overseeing Harris’ County pretrial-detention mill, whom she found to be willfully and conveniently ignorant about the human impact of they system they’re running:

policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.

That’s exactly right – they’re not going to change unless somebody makes them, and Judge Rosenthal clearly has decided she’s that somebody.

I would note that all of those elected judges are Republicans (*), and they are all up for re-election next year, so there is another way to force a change here. In the meantime, I have to ask again, why are we even still fighting this? What principle are we defending? Why are we writing checks to fat cat Washington DC Republican lawyers to “advise” on whether or not to appeal? Stop the madness and stop wasting my tax dollars on this crap, and settle the damn lawsuit already. It’s the right thing to do on every level. District Attorney Kim Ogg wants to settle. Sheriff Ed Gonzalez wants to settle. Commissioner Rodney Ellis wants to settle. Everyone else needs to get in line.

(*) The judges in question preside over the County Courts, where misdemeanors are heard. County Court Judge Darrell Jordan, who was elected in 2016 to fill a newly-created bench, is the lone Democrat. He also is the lone judge to favor settling.

Investigation requested into voucher astroturfing

From the Quorum Report:

Rep. Gina Hinojosa

Following a criminal complaint by a GOP former lawmaker, an Austin representative has asked the Travis County District Attorney’s Office to look a letter-writing campaign that has deeply troubled rural Republicans in the Texas House who are opposed to school vouchers.

In a letter obtained by Quorum Report this evening, Rep. Gina Hinojosa, D-Austin, told prosecutors that she’s heard from many of her Republican colleagues who cannot believe the way in which many of their constituents’ names were used.

As QR readers who have followed this are aware, rural Republicans from East Texas to West Texas have received about 17,000 letters orchestrated by a group called Texans for Education Opportunity. The group claimed credit for the letter campaign but has said everything was done properly.

The problem, though, is that many of those letters utilized the names of people who are opposed to school vouchers in any form and, in fact, some of them have raised concerns about whether their identities were stolen for this campaign.

Sen. Kel Seliger, R-Amarillo, has said he thinks lawmakers are being “defrauded” by these letters. One of the letters Seliger received, but the way, was sent in the name of someone who had died months before the letter was sent.

“I am writing to ask you and your office to immediately open an investigation into a massive letter writing campaign that appears to be fraudulent,” Rep. Hinojosa wrote to the Travis County DA Margaret Moore.

See here for some background, and here for a copy of the letter. Rep. Hinojosa is the second person to ask a DA to investigate this, following former Rep. Rick Hardacstle, who was one of the people claimed to be a voucher supporter by this phony campaign. I Am Not A Lawyer so I have no opinion as to whether the civil code or the criminal code would be the more appropriate remedy for this, but it’s definitely fraud of some form, and if my name had been on one of those faked letters I’d want someone in power to Do Something about it, too. We’ll see what happens.

UPDATE: Scott Braddock has more.

More on the attack on the Paxton special prosecutors’ pay

From Texas Lawyer.

Best mugshot ever

As courtroom twists go, this one is practically unheard-of: On the brink of bringing Texas’ attorney general, Ken Paxton, to trial on felony securities fraud charges, the government’s prosecutors are threatening to bail out of the case unless they get paid.

Whether one of the biggest criminal cases in Texas finally goes before a jury is now in limbo over what prosecutors contend is a deliberate effort by rich supporters of Paxton, an up-and-coming firebrand in Republican legal circles, to delay justice by challenging their paychecks. So far, the tactic is working.

[…]

Supporters of Paxton have made an issue of the $300-an-hour fees being charged by the special prosecutors, who are paid by the Dallas suburban county where the trial will be held. A three-judge panel of a Dallas appeals court agreed to halt payments on the $200,000 in legal bills while it considers a lawsuit filed by Jeff Blackard, a wealthy Dallas developer and onetime Paxton political donor, who has argued that the fees were excessive and costing taxpayers too much.

“Everyone in the courtroom is being paid except for us,” one of the appointed prosecutors, Brian Wice, has said. “No one expected us to work for free.”

Firing back, Paxton’s attorneys earlier this month accused prosecutors of being “financially self-serving” and argued they don’t have a right to be paid until the case is over. As of last year, Paxton had raised more than $300,000 from private sources to pay his own high-powered defense team.

Legal observers say they’ve never seen a case jeopardized quite like this.

“It’s outrageous that the prosecution should be derailed by the defendant somehow, or the defendant’s supporters or friends, defunding the prosecution,” said Joe Turner, a veteran Austin attorney who helped Willie Nelson and Matthew McConaughey beat drug busts years ago.

[…]

Blackard’s attorney denies that the lawsuit is a ploy to keep Paxton from facing a jury.

“It’s not about whether Paxton is or is not prosecuted. It’s about whether the taxpayers’ money is spent properly,” said attorney Eddie Greim, who is based in Kansas City, Missouri.

Prosecutors told a judge in court documents that Blackard “has already succeeded in shutting down this prosecution” and warned that having to appoint replacements will only drag the case out further.

Most of this, which was written before the decision by Judge Gallagher that delayed the trial until the prosecutor pay dispute gets resolved, is stuff we know. As a matter of law, the suit may have merit, but as a matter of common sense it’s completely ridiculous. It simply cannot be the case that a private citizen can derail a prosecution like this. I maintain that the funding for cases like these should be the state’s responsibility. Indeed, it was the state’s responsibility until the 2011 Legislature kneecapped the Public Integrity Unit of the Travis County DA’s office. Whatever you think of that action, it created a problem for which there is no current solution. It won’t affect this case, but the Lege really should address this. Ken Paxton will not be the last elected official to cause this issue for a county Commissioners Court.

Bail practices lawsuit wraps up

It’s up to the judge now.

The call by two civil rights groups for an immediate fix to Harris County’s bail system is now in the hands of a federal judge after high-stakes arguments over whether poor people should remain in jail on misdemeanor offenses because they can’t afford to post bail.

Key criminal justice leaders in the county – including the sheriff, district attorney, public defender, misdemeanor judges and hearing officers – have weighed in on a lawsuit filed last year challenging the local system as unconstitutional.

Now Chief U.S. District Judge Lee H. Rosenthal will decide if the current bail system should be suspended temporarily until the lawsuit goes to trial, despite efforts already under way to alter the local system.

The county’s bail schedule punishes “working poor” people like Maranda ODonnell, a single mother who filed the lawsuit after spending two days in jail for driving without a valid license, attorney Alec Karakatsanis said during closing arguments Thursday.

The county’s lawyers argued changes already made to the system have brought an increase in defendants released on no-cash bonds.

“The present system is not perfect, it’s a compromise,” said John O’Neill, who represented the county judges. “It’s as imperfect as democracy.”

See here and here for some background. What’s at stake here is a preliminary injunction against the current system, with a full trial on the merits of the lawsuit to follow, if there is no settlement in the interim. I’m not sure what an injunction would look like in practice, but I’m sure Judge Rosenthal will have some ideas if she grants it. I get the sense that ruling will come sooner rather than later, but we’ll see. The Press has more.

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.

Bail practices lawsuit gets going

The first day in court for this lawsuit was Monday.

Neal S. Manne, a managing partner at Susman Godfrey, told Chief U.S. District Judge Lee H. Rosenthal in his opening statement Monday that ODonnell and hundreds of other poor people charged with minor crimes do not get a fair chance to win pretrial release here if they can’t afford to pay a bondsman.

He lauded the recent bail reforms the county has begun and those it plans to install, but he said none address the basic constitutional questions of equal protection under the law.

“If you have money, you can get out. If you don’t, you can’t,” Manne said. “That’s what we’re here about.”

The opening statements took on a question-and-answer format as Rosenthal peppered the lawyers with dozens of sharp questions and hypothetical arrest scenarios trying to get at the truth of how bail works here.

Melissa Lynn Spinks, who is heading the defense team on behalf of the Harris County Attorney’s Office, said the premise that Harris County has a wealth-based bail system is “a woefully simplistic argument.”

“The defense believes there is a category of high-risk defendants that we simply can’t ignore,” she said, explaining that hearing judges weigh several factors in setting bail.

Four other attorneys representing the judges, the sheriff and the county presented a preview of their arguments, interrupted by lively questioning from the judge.

Plaintiffs are seeking an injunction against the county to force immediate changes in the bail process. There’s no monetary award being sought, just changes to the system. It’s not clear to me what the timeline is, so we’ll just have to follow along and see. In the meantime, as we know there have been some changes made that will address some of these issues, but there’s more that needs to be done. Grits for Breakfast quotes an email from UH law professor Sandra Guerra Thompson that begins with a discussion of two bail reform bills that have been filed in the Lege and then moves on to this lawsuit as a case in point.

Ending Pretrial Punishment. If your loved one is arrested tomorrow in Texas, he or she will almost certainly be required to pay money to get out of jail. For most people who cannot pay the entire amount of the bail set, the only viable way to get out of jail is by making a non-refundable payment to a bondsman. This amounts to punishment, a fine, without proof of guilt. As someone who has paid bail money to get a cousin out of jail in Houston, I will tell you that it feels very much like pretrial punishment. The same troubled cousin was later arrested in Austin where judges have implemented a risk-based system, and he was released on a PR bond within a few hours. This use of PR bonds, based on a validated risk assessment, is what the bail bill would implement. The vast majority of people arrested are low-level, low-risk people who should be promptly released on PR bonds upon a finding that they are safe to be released. Rather than pay for a bail bond, they can use their money to pay for an attorney so the county doesn’t have to appoint one at taxpayer expense.

[…]

Meanwhile, back at the ranch . . . Houston officials defend the indefensible. Litigants have challenged the money bail system in Harris County, the state’s largest and deeply intransigent jurisdiction. The trial started today, March 6th. The litigation shake-up, combined with the election of reform-minded officials, has already brought some progress. Remarkably, the District Attorney Kim Ogg, following the lead of the Sheriff Ed Gonzalez, recently filed an amicus brief siding with the plaintiffs who are suing the county’s misdemeanor judges (see attached brief). So far, the county refuses to budge from its stance supporting the use of money bail, even though the system has been shown to be arbitrary, wasteful, cruel, and dangerous. The county’s lawyers went so far as to make the ludicrous statement that some people are in jail because they prefer to be there!

Holding tight to the Bail Schedule. To deflect the criticisms, Harris County officials have agreed to do everything short of getting rid of the bail schedule. Last month, they touted the implementation of the Arnold Foundation risk assessment instrument, which would be important if the judges were actually planning to make decisions based on risk assessments rather than simply following bail schedules. They have no plans to do away with money bail, and that is why the county has been unable to settle the lawsuit.

Here are other “baby steps” that Harris County has made, while desperately clinging to the money bail system. After years of feet-dragging, county officials have finally agreed to provide people with public defenders at bail hearings as part of a pilot project. (I will never understand why a “pilot project” is necessary. By what measure will they evaluate whether it is a good idea to give people access to a fair defense at bail hearings? Keep in mind that prosecutors have participated at these hearings for many years. That’s right—the county has held one-sided hearings with a prosecutor and magistrate, but no one to speak for the jailed person!)

To its credit, the county has started several programs to reduce the number of people in jail: the District Attorney’s policy to“legalize” of small amounts of pot, a “reintegration court” to get minor offenders out of the jail quickly, and very modest efforts to get the seriously mentally ill out of the jail and into treatment facilities. All of these programs are welcome and long-overdue, but they are not bail reform.

And that is what this lawsuit is about, for Harris County. For the state of Texas, that action is in the Legislature, and you should click over to Grits to learn more. I’ll be keeping an eye on the trial.

Ogg sides with bail reformers

As well she should.

Kim Ogg

District Attorney Kim Ogg on Friday filed a brief supporting bail reform in the lawsuit brought against Harris County’s misdemeanor judges to change the bail system.

The civil rights lawsuit, filed in federal court, is expected to begin a three-day hearing on Monday about whether the judge should issue an injunction.

Ogg, whose office is not a party to the litigation, filed a four-page amicus brief saying bail reform is necessary and long overdue.

“It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time,” she wrote in the brief. “These secure beds and expensive resources should be prioritized for the truly dangerous offenders and ‘flight risks’ who need to be separated from the community.”

[…]

Ogg said the issue is whether defendants charged with minor offenses are being held in the Harris County jail solely because of their inability to pay bondsmen’s fees, not because of legitimate concerns about their willingness to appear in court.

“Our primary concern is public safety. We do that by being smart on crime,” Ogg said. “When people are charged with minor offenses and do not present significant risks of flight or danger to the community, releasing them on their own recognizance – or with minimal restrictions – is called for by both the Texas and U.S. constitutions.”

Tom Berg, Ogg’s First Assistant, said the office is not “taking sides” but just explaining that they want to see change.

“These are major changes that we believe are long overdue,” he said. Berg noted that the office is also supporting county-funded defense attorneys at magistrate courts that run 24 hours a day with a prosecutor and a judge but no lawyer at that initial appearance. That issue has run into hurdles because of several issues but mostly because of the cost of staffing the initiative.

Ogg joins Sheriff Ed Gonzalez, whose office is party to the lawsuit, in siding with the reformers. I presume an amicus brief coming from the District Attorney in this matter would carry some weight. The next round of hearings begins today, so we should know soon enough what the effect of Ogg’s intervention will be.

No decision yet in the Temple case

Give it two more months.

Kim Ogg

Harris County District Attorney Kim Ogg said Monday it will be at least another 60 days before a decision is made on whether to re-try the murder case against former Katy football star and Alief coach David Temple.

Temple’s conviction was tossed out last year after the state’s highest court ruled that prosecutors withheld evidence in his 2007 murder trial. He was sentenced to life in prison for the grisly shooting of his pregnant wife, Belinda Lucas Temple, in 1999.

On Monday, Ogg said she needed more time to review the massive file before deciding whether David Temple would face trial again. She also said she had not ruled out giving the case to a special prosecutor.

“There’s been a number of requests, from the victim’s family and their supporters, for us to recuse ourselves,” she said. “It’s all under consideration.”

She said she was looking at whether the office has a conflict of interest, or the appearance of a conflict. And if the decision is made for a retrial, she said she is weighing whether a special prosecutor should do that.

“It’s an important case to me,” said Ogg, who took office Jan. 1. “It’s an important case in terms of how prosecutors behaved under the past administrations and how that affects future prosecutions. That’s why I’m handling it personally.”

See here for the background. One of the things this story discusses is a recent fundraiser for Ogg to which some of David Temple’s attorneys contributed, as this may present a conflict of interest for her. The Press, which has been foursquare in the “David Temple is a murderer who needs to be locked up” camp, is all over this. Ogg has not ruled out bringing in a special prosecutor to review the case and make the decision to proceed or not with it. Given how tainted this case is, that may be the wiser course of action for her. We’ll know more in sixty days or so.

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.

Dukes indicted

Boom.

Rep. Dawnna Dukes

A grand jury has indicted state Rep. Dawnna Dukes, D-Austin, on abuse-of-office charges, the Travis County District Attorney’s office said Wednesday. She could face up to 28 years in jail and fines of up to $138,000.

The first indictment charges 13 counts of tampering with a governmental record, a felony punishable by up to two years in jail and a fine of up to $10,000. These charges are based on allegations that Dukes made false entries on travel vouchers to obtain money for expenses she was not entitled to, Travis County District Attorney Margaret Moore said in a news release.

Two separate indictments were also handed down for abuse of official capacity by a public servant, a misdemeanor punishable by up to a year in jail and a fine of up to $4,000. These “relate to allegations that Rep. Dukes misused public funds for her personal gain, and that she converted campaign funds to personal use.”

In a Facebook post Wednesday, Dukes said she is “disappointed” with the grand jury’s decision and will “be entering a plea of not guilty.”

On Wednesday afternoon, she went to the Blackwell-Thurman Criminal Justice Center to get fingerprinted and have her mug shot taken. In brief remarks outside the county courthouse Wednesday afternoon, Dukes, flanked by her lawyers, she said she is “very relieved … to begin the process of getting out the other side of the story that I have not been able to speak about since February.”

“I will focus my time and my energy on the people of District 46 and their issues and their concerns,” Dukes told reporters. “I do not intend at all to allow anyone to get me distracted.”

See here and here for the background. I have not been calling for indicted AG Ken Paxton to resign from his office, partly because as crooked as I think he is, he hasn’t been convicted of anything yet, and partly for the crass political reason that I’d rather have us Dems run against a possible convicted felon than against a clean replacement. I have no crass political reason for wanting Dawnna Dukes to stay in office, and as we know she had originally said she was going to resign for various personal reasons then changed her mind at the last minute. As such, while I remain steadfast in the belief that one is innocent until proven guilty, I’d really like to see Dawnna Dukes resign. She is highly unlikely to be an effective advocate for her constituents this session, and they deserve better. But that’s ultimately their call as much as hers – if the people who have been electing her want her to leave, she should listen to them. I hope they do, and I hope she does.

Professional Integrity

I like this.

David Mendoza

Former judge David Mendoza has been tapped to lead the newly created division of professional integrity for the Harris County District Attorney’s Office.

He will be advising the 700 employees in the district attorney’s office – including prosecutors, investigators and other staff – on ethics and professionalism, District Attorney Kim Ogg announced Wednesday.

“There are few jobs where judgment is more important than it is as a prosecutor,” Ogg said. “His experience will be a tremendous asset to our office, ensuring that our lawyers and staff always have access to expertise on issues of ethics.”

Mendoza will lead the Office of Professional Integrity, a new division, to address appropriate use of prosecutorial discretion, discovery, immunity and the state’s Michael Morton Act, designed to increase defense access to evidence.

He also will oversee the district attorney’s training section and help revise policies and procedures.

“I’m honored to be part of a team to assist district attorney’s office employees in performing their duties at the highest professional level,” Mendoza said in a statement.

Nice. This is in keeping with Ogg’s promise to de-emphasize winning and focus more on getting it right. Mendoza was elected to the 178th Criminal District Court in 2008 and re-elected in 2012, and chose not to run for re-election last year. I expect he’ll do a great job in this role. The Press has more.