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Kim Ogg

Lineup shuffling at the DA’s office

This was a surprise.

Kim Ogg

Harris County District Attorney Kim Ogg’s top lieutenant is out the door after the latest staffing shake-up at an office already plagued by high turnover and ongoing retention problems.

Tom Berg, a former defense attorney who came on board at the start of Ogg’s administration, confirmed his departure early Tuesday – and though initially he described it to the Chronicle as a firing, officials later said that he resigned when offered a different job title.

“I realize that as the office has evolved its needs have necessarily changed,” Berg wrote in a letter to Ogg dated Tuesday. “I could not anticipate or adjust to each aspect of the transformation and acknowledge your need to have a First Assistant who is philosophically more aligned with your course for the future.”

It’s not clear if a specific incident prompted the move. Two other employees – Human Resources Director Dean Barshis and Outreach Coordinator Shekira Dennis – are shifting roles in similarly unclear circumstances.

[…]

As of April, more than 140 prosecutors had left under her tenure, generating a sharp uptick in turnover.

Ogg has attributed the turnover to fallout from Hurricane Harvey, which has left courtrooms scattered across a number of buildings and prosecutors working in makeshift offices.

Some local attorneys chalked up the departures to leadership issues.

“There’s a lot of different things going around — they’re overworked because of the hurricane or they’re not going to trial — but really it’s that there’s no leadership,” said Josh Phanco, a longtime felony prosecutor who left the office earlier this year. “There’s no one you look at and say, ‘Oh, I want to be that guy.’ They all got fired.”

As the story notes, a lot of assistant DAs and other employees left – some voluntarily, others not – after Ogg was inaugurated, and it has continued since then. The same thing happened following Pat Lykos’ victory in 2008 (and would have happened if C.O. Bradford had won instead), as both of these elections represented a change of direction for the office. It’s been bumpy, and that has had a negative effect on how the office has performed, but that is what happens when a large organization undergoes a significant shift in philosophy and operation. I’ve no doubt that plenty of things could have gone better, and of course plenty of experience has been lost. That’s by definition, and it’s part of the point. Kim Ogg will have to defend her record when she runs for re-election next year, but in the meantime and with all due respect, I’m going to take the criticism of people who worked for the previous DAs with a certain level of skepticism.

I’ve met Tom Berg and I’m friends with him on Facebook. I’m sorry to see him go, I don’t know what might have happened, but I wish him all the best. His successor is now in place.

A day after Harris County District Attorney Kim Ogg forced out a top lieutenant in the latest office shake-up, officials confirmed Trial Bureau Chief David Mitcham will step in to assume the role as First Assistant District Attorney.

“David has a long and distinguished career as a criminal trial lawyer and prosecutor; he’s handled thousands of cases and understands the needs of our staff because he has walked in your shoes,” Ogg wrote Wednesday in an office-wide email announcing the change. “While you all have known him over the past two and one half years as the Trial Bureau Chief, I have known David for more than three decades as a colleague, friend and outstanding lawyer.”

Best of luck to David Mitcham.

County brings charges related to ITC fire

Bring it on.

Kim Ogg

Responding to what it called “criminal levels” of contamination, the Harris County District Attorney’s office said Monday that it has charged Intercontinental Terminals Company with five misdemeanor counts of water pollution arising from a March plant fire that sent toxic chemicals into nearby waterways and a thick plume of smoke over the Houston area for days.

“The discharge from the ITC fire into Tucker Bayou is a clear water pollution case,” said Alex Forrest, the environmental crimes division chief for the DA’s office, in a written statement. “We are looking forward to reviewing the reports of other local and federal agencies, as they complete their investigations, so that we can determine if other charges will follow.”

The charges are the most recent example of District Attorney Kim Ogg’s more aggressive approach toward chemical companies in the aftermath of environmental disasters that have outraged the public and drawn national attention.

“This is the beginning of our review, not the end,” said Dane Schiller, a spokesman for the DA’s office.

According to the DA’s Office, water pollution in Tucker Bayou was at “criminal levels” from March 17 through March 21. Prosecutors filed one count for each of the five days the company allegedly violated the law at its Deer Park plant. Each charge carries a fine of up to $100,000.

“People living in Deer Park and the other neighboring residential areas near ITC’s plant deserve protection,” Ogg said. “When public health is at risk, it’s a public safety concern.”

An attorney for ITC, which stores petrochemicals for companies including Chevron, Philips 66 and Exxon, defended its efforts.

“Although we have not seen the charges, there is no question that there was a large fire and an enormous effort to extinguish it which resulted in a discharge into Tucker Bayou,” said Michael Goldberg, an attorney for ITC, in a written statement.

[…]

Monday’s court action against ITC marks the second time Ogg has pursued criminal charges against Houston-area companies in high-profile pollution cases. After a chemical fire during Hurricane Harvey in 2017, Ogg brought a criminal case against the chemical company Arkema and two of its executives for the “reckless” release of an air contaminant.

Investigators found that the company’s emergency plan provided little direction to employees on how to handle major floods, and as a result, it couldn’t keep combustible organic peroxides cool, according to federal documents. Over the next week, nine trailers of organic peroxides erupted in flames, sending pillars of fire and thick plumes of black smoke into the air.

Prosecutors recently charged the company and a third executive with reckless assault, citing injuries sustained by two deputies who responded to the scene based on the company’s assurances. Company officials have defended their actions in both suits and accused Ogg’s office of prosecutorial overreach.

See here for more about the Arkema indictments, which as far as I know have not progressed past that stage yet. These charges came right after Kim Ogg requested more environmental prosecutors. I don’t know if the one has to do with the other, but either way I expect that division to be busy. It’s one thing to file charges, it’s another to get convictions, and still another for those convictions to withstand appeal. We’ll keep an eye on these.

Prosecuting polluters

It really shouldn’t have to come to this, but here we are.

Kim Ogg

The Harris County District Attorney’s office is calling for a tripling of the number of prosecutors dedicated to environmental crimes in the wake of a series of chemical plant fires that has raised public health concerns.

In a letter Thursday to the county judge and commissioners court, Vivian King, the chief of staff of the district attorney’s office, requested $850,000 to fund eight new positions: four prosecutors two investigators and two paralegals. The county currently has two prosecutors and one administrative assistant devoted to environmental crimes. The request is scheduled to come before the commissioners court on Tuesday.

On March 17, an Intercontinental Terminals Co. tank farm in Deer Park caught fire and burned for several days, closing the Houston Ship Channel and drawing national attention. No injuries were reported. A couple of weeks later, one person was killed and two others were critically injured when the KMCO chemical plant in Crosby caught fire. A fire also broke out at Exxon Mobil’s Baytown refinery in mid-March but was contained hours later. The investigations are ongoing.

“With Arkema and ITC and all of the alleged criminal acts intentionally polluting our waters supply with cancer agents, we don’t have the staff to investigate and work on these cases,” King said during an interview.

The DA’s environmental crimes division handles 400 to 500 cases a year, the bulk of which are related to illegal dumping and water pollution perpetrated by smaller companies or individuals — not the big corporations, King said.

[…]

Traditionally the county has not criminally prosecuted the large petrochemical industry, King said.

She stressed that the DA’s office welcomes an industry that’s a major source of employment and an important contributor to the area’s economy.

“However,” she added, “as public servants we get a lot of complaints about the very few companies that commit criminal acts by intentionally not following laws and regulations governing hazardous waste and chemical emissions and putting cancer agents in our water supply and the air we breath.”

And they currently don’t have the staff to handle it all, even less so to take on the big cases. A private attorney is working pro bono on a case involving Arkema.

Let’s be clear, it would be best if most of this work were done by the TCEQ. If they were an agency that took their mandate seriously – and, let’s be clear again, if the mandate they were given by the state were more serious – they would be in position to reduce the risk of catastrophes like these. Better enforcement up front is always the better way to go. In the absence of that, and with constraints on civil action, what other option is there for the most egregious offenders? If and when the state does its job, entities like the Harris County DA will be able to back off. This request was part of the larger ask for more prosecutors that was rejected in February. It was unanimously approved by Commissioners Court yesterday, so that’s good. I suspect there will be no shortage of work for this team.

Ogg hires Bradford

A familiar face for the DA’s office.

C.O. “Brad” Bradford

Former Houston City Councilmember and Police Chief C.O. “Brad” Bradford has joined the Harris County District Attorney’s Office as a senior adviser.

District Attorney Kim Ogg has hired Bradford to serve in a senior-level position as special prosecutor and law enforcement liaison, said spokesman Dane Schiller.

“We welcome his expertise and experience as a respected member of the community, a lawyer for 25 years, and a former chief of the Houston Police Department,” Schiller said, declining to offer details about the motives for the high-profile hire.

Bradford said he would be using his expertise in both law enforcement and jurisprudence to analyze the processes of the DA’s office, the criminal cases police bring for prosecution and how the DA’s office handles those cases.

“Thousands and thousands of cases are being filed by police, and there’s a need to look at those cases and see if something can be done other than the police filing formal charges on those people,” Bradford said. “Some of them, you lock them up in jail still; they need that. Others may need prevention programs. They need mental health treatment. They may need diversion.”

The new hire comes on the heels of repeated requests for more prosecutors, the most substantial of which — $21 million for over 100 new positions — the Harris County Commissioners Court shot down earlier this year. The initial wave of new positions would have targeted felony courts, where lawyers are most needed given the post-Harvey backlog, Ogg has said.

The rest of the story is a recap of Bradford’s career – for the record, he served three terms on City Council, not two – quotes from various people of varying quality, and mention of the continued turnover at the DA’s office. I care more about what Bradford will do with the DA. He’s a sharp guy with a good grasp of policy, and I think he could be a good bridge between Ogg and the police, who as noted by some of those comments I didn’t include in this post haven’t always liked Ogg’s policy changes. I had some issue with him as Council member, as he was often a foil to Mayor Parker, but he was a strong advocate for his positions. While I’m sure some of his role will involve talk and diplomacy, I figure you don’t hire a guy like C.O. Bradford to be behind the scenes. I’ll be very interested to see what he gets up to.

Marijuana diversions

Good progress so far. What can we do to build on it?

Kim Ogg

The Harris County District Attorney’s Office estimated on Friday that it’s saved $35 million and arrested 14,000 fewer people since the start of a program to divert low-level marijuana offenses.

The announcement marked the two-year anniversary of the initiative, which allows misdemeanor anyone caught with less than 4 ounces of marijuana to avoid an arrest, ticket or court appearances if they agree to take a four-hour drug education class.

“We know we have reduced the arrest rate,” Harris County District Attorney Kim Ogg said at a news conference Friday morning. “That gives law enforcement more time to answer serious calls.”

The initiative launched in early 2017 was one of Ogg’s first steps to reform, earning her accolades among criminal justice reformers and marijuana activists. Since then, the program has expanded to include parolees and defendants on probation – but still some experts have questioned whether the initiative, and Ogg’s office, could go further.

“Compared to past district attorneys in Harris County, Kim Ogg’s record looks promising,” said criminal justice expert Scott Henson, with the nonprofit Just Liberty. “Compared to so-called ‘progressive’ district attorneys at the national level like Larry Krasner in Philadelphia, she looks very moderate.”

Before the program started, Harris County law enforcement agencies typically filed around 10,000 misdemeanor weed cases per year, officials said Friday. Since the program began, that number has dropped to about 3,000 people per year.

[…]

[HPD Misdemeanor Division Chief Nathan] Beedle suggested that Ogg’s office isn’t getting enough credit for the progressive shift in marijuana prosecutions, but reformers like Henson have advocated for dropping marijuana prosecutions across the board – whether or not the would-be arrestee successfully completes an education class.

“In a time when 10 states have already legalized fully, I think that marijuana diversion is probably looked at as less aggressively reformist than it would have been 10 or 15 years ago,” Henson said. “I mean, Greg Abbott thinks it should be charged as a Class C misdemeanor. So she’s not that far out of line with centrist opinion.”

I’m not as inclined to give Abbott credit for his belief. Nothing has passed the Lege yet, and Dan Patrick remains a significant obstacle to any reforms. It’s good that Abbott himself isn’t an obstacle, but let’s hold off on the plaudits till something gets done.

That said, I take Henson’s point that while diversion has been a big change here in Harris County, it’s not on the leading edge of reformist thought anymore. So, while we can be glad for the progress that we’ve made so far, it’s fair to ask what comes next. What can we do to push these arrest numbers down further? What do we need to do to drag the more recalcitrant law enforcement agencies within the county along? What’s the next opportunity once marijuana arrests are mostly a thing of the past? These are the questions we need to be asking and answering.

January 2019 campaign finance reports: Harris County

One last set of finance reports I want to look at, from Harris County officials. I’m dividing them into a few groups:

Lina Hidalgo, County Judge
Diane Trautman, County Clerk
Dylan Osborne, County Treasurer
Marilyn Burgess, District Clerk

Kim Ogg, District Attorney
Ed Gonzalez, Sheriff
Vince Ryan, County Attorney
Ann Harris Bennett

Rodney Ellis, Precinct 1
Adrian Garcia, Precinct 2
Steve Radack, Precinct 3
Jack Cagle PAC, Precinct 4

George Moore, HCDE Position 1, Precinct 2
Eric Dick, HCDE Position 2, Precinct 4
Richard Cantu, HCDE Position 3, At Large
Josh Flynn, HCDE Position 4, Precinct 3
Michael Wolfe, HCDE Position 5, At Large
Danny Norris, HCDE Position 6, Precinct 1
Don Sumners, HCDE Position 7, At Large


Candidate     Raised     Spent     Loan     On Hand
===================================================
Hidalgo      239,834   161,503    1,400      51,836
Trautman       4,613       501        0      17,044
Osborne        1,225     2,242        0         122
Burgess        6,647     5,816        0       6,683

Ogg              600    13,936   68,489     212,875
Gonzalez      88,755    26,205        0     114,976
Ryan           6,500    14,656        0      58,464
Bennett        5,250     5,799        0      29,411

Ellis        223,000   310,395        0   2,916,307
Garcia       739,508   310,945        0     531,887
Radack       801,500   331,900        0   1,742,357
Cagle         68,045   113,143        0     171,242

Moore              0         0        0         243
Dick
Cantu          1,070       786        0       1,325
Flynn              0        10        0       1,600
Wolfe              0         0        0           0
Norris
Sumners

Remember that for those who were on the November 2018 ballot, this filing period runs from the 8 day report, which was October 27, through the end of the year. Basically, the last two months, including the last week of the campaign. For everyone else, it’s the usual six month period. HCDE candidates generally raise and spend negligible amounts, so it’s not that odd for some of them to have no activity to report.

$99K of the amount Lina Hidalgo raised was in kind, $95K of which came from the Texas Organizing Project for field work. It’s common for newly-elected candidates to get a surge in financial support right after their election – these are called “late train” donations – but in Hidalgo’s case a fair amount of the contributions reported here were before Election Day. Given her pledge to refrain from taking money from those who do business with the county, it will be interesting to see what her future reports will look like. The Commissioners have not taken a similar pledge, and they tend to be the bigger fundraisers anyway. Keep an eye on Steve Radack going forward – he’s either going to gear up for a tough election, or he’s going to decide to step down and let someone else engage in that battle. If Ed Emmett had been re-elected, it wouldn’t have shocked me if Radack ran again and then resigned after winning, in the grand tradition of Republican county officials, to let Emmett pick his successor. I feel confident saying that Steve Radack will not give Lina Hidalgo the opportunity to replace him.

With the strong Democratic trend in Harris County and the greater level of Democratic engagement – not to mention the possibility of the DNC being here and Texas being contested at the Presidential level – I don’t expect the countywide officeholders to work too hard to raise money for next November. They won’t slack, exactly, but they know they’ve got a lot of support behind them. That said, with Kim Ogg already getting a potential primary opponent, and given my belief that Vince Ryan will also draw one, they may step it up to make next March easier for them. The incentives, and the strategy, are different now in a blue county.

I am going to do one more report, on the Congressional candidates from 2018, two of whom are now incumbents and several others who will be back this cycle. As always, I hope this has been useful for you.

Ogg’s second ask

We’ll see how this goes.

Kim Ogg

Harris County District Attorney Kim Ogg is planning to head back to county leaders with another request for more prosecutors in light of the massive case review sparked by fallout from last month’s botched Houston police drug raid.

The renewed push for additional positions comes just after a failed bid to get funding for 102 new prosecutors, a hefty $21 million budget request slapped down by the Harris County Commissioners Court earlier this month. At the time, Ogg argued that her office’s overwhelming caseloads were likely among the highest in the country, and that the understaffing at all levels could prevent prosecutors from evaluating cases eligible for diversion.

But now, her new push to expand hinges on the need to review the more than 1,400 cases handled by Officer Gerald Goines, the case agent suspected of giving false information to justify the no-knock raid that left two civilians dead, officials said. In some of the cases, the 34-year officer was a witness, while in others he signed the affidavits underlying warrants, Ogg said Thursday. Of those up for review, 27 are active and at least five involve defendants currently in jail.

“These are individual cases; justice has to be meted out in every one. It takes time, we need some more investigators,” Ogg said. “We can get there with the understaffing that we have, it’s just going to take longer.”

It’s not clear how many new positions Ogg would ask for, but she stressed that the case reviews will happen regardless.

“This review is not contingent on funding, we’re going to do it,” she said. “It’ll just take a lot longer with the few people that we’ve got assigned to our Conviction Integrity Division.”

Because the jobs would go to “trusted, trained” prosecutors, Ogg said, the idea would be to promote from within and hire new positions at a lower level. The review of the 27 active cases can be handled by current staff.

See here for some background. I’ve not gotten any press releases in my inbox from groups that had opposed the previous request, as I had at that time, but that may just be a function of timing. It’s not fully clear to me from this story if what Ogg is requesting is more prosecutors or more investigators, the latter of which may perhaps be less controversial. The reason prompting this request is unimpeachable, but there may be more to it than what is apparent now. If she’s going to make this request at Tuesday’s Commissioners Court meeting, we should know pretty quickly what kind of a reaction this will get.

As for the larger issue, I have not blogged about the HPD no-knock raid mess, as there’s only so much I can keep up with. I fully support the effort to review and revise the department’s policy on no-knock raids, and will note that there has been advocacy in favor of this, here and nationally, for a long time. As is so often the case, it takes a tragedy to focus a sufficient amount of attention on the issue to make anything happen. Harris County Sheriff Ed Gonzalez is making similar changes, though that will have a much smaller effect than what HPD does since the Sheriff’s office rarely conducts such raids. There are also bills in the Legislature, with Rep. Harold Dutton being one of the main authors, to impose restrictions and more stringent processes on all law enforcement agencies. As with bail reform, this is something that has been needed for a long time, and maybe, just maybe, the time is right for it to happen.

Commissioners Court rejects Ogg’s request for more prosecutors

I fully expected that Commissioners Court going from 4-1 Republican to 3-2 Democratic after the last election would signal big changes in how business was done in Harris County, but I didn’t expect this to be the first milestone on the new path.

Kim Ogg

Harris County Commissioners Court on Tuesday rejected Kim Ogg’s request for 102 new prosecutors, a stinging public defeat for the first-term Democratic district attorney by members of her own party.

The rejection came less than 24 hours after a former assistant district attorney filed paperwork to challenge Ogg in next year’s primary, a sign criminal justice reformers may have lost patience with the self-described progressive after helping elect her in 2016.

The three Democratic members of Commissioners Court — commissioners Rodney Ellis and Adrian Garcia and County Judge Lina Hidalgo —supported increasing the district attorney’s budget by 7 percent, in line with increases for other county departments. Ogg had asked for a 31 percent increase, which would grow her prosecutor corps by a third and include 42 additional support staff.

“This is not the only way, and certainly not the most cost-effective way to decrease prosecutor caseloads,” Hidalgo said.

[…]

Ogg, who did not attend the court meeting, issued a statement after the vote.

“We will continue to fight every day to ensure that justice is done in every case for every crime victim, every defendant and the community,” she said. “Harris County must have a district attorney’s office with sufficient resources to ensure that all cases are resolved fairly and in a timely manner.”

See here for the background and here for an earlier Chron story that previewed the Tuesday Commissioners Court meeting. Ogg had addressed the criticism of her proposal, and also answered the question about maybe hiring prosecutors on a shorter-term basis, but it wasn’t enough to get any of her fellow Dems in line. I would say her best bet right now is to take what the ACLU of Texas said in a press release following the Commissioners’ vote to heart:

“Adding more prosecutors in Harris County is not the ultimate solution for reducing mass incarceration and fighting racism in the criminal system. While the Harris County Commissioners Court has taken a more measured approach than the initial proposal, the addition of new prosecutors must come with clearly defined standards for reducing incarceration — such as expanding pretrial diversion, reducing case disposition time, and reducing existing caseloads — instead of prosecuting more cases. The commissioners were right to call for studies into how best to improve the district attorney’s office, and District Attorney Ogg should commit to specific plans for how any newly hired prosecutors will be used. That’s accountability.”

“There is no question that Harris County prosecutors have high caseloads, but the solution is not to add more prosecutors in a cycle that endlessly ratchets up the size of the criminal system. The smartest way to reduce caseloads is to dismiss more cases, identify more cases for diversion, and invest significantly in substance use disorder and mental health treatment that help people who need it and prevent them from ending up awaiting prosecution in the first place.”

Seems to me this conversation will need to include HPD, the Sheriff’s office, and all of the other law enforcement organizations in Harris County as well. If the DA needs to prioritize what cases get prosecuted, they will need to prioritize what arrests they make. Commissioners Court needs to do its part, too, by working to expand mental health offerings. The Lege could also pitch in here, though for obvious reasons I’ll keep my expectations low. Everyone has a part to play – Kim Ogg’s part is bigger than the rest, but it’s not just her. Maybe by the time next year’s budget is being discussed, we’ll have less to argue about.

And speaking of next year:

Audia Jones, the former prosecutor who on Monday filed paperwork to challenge Ogg, spoke against the proposal. Jones said she left the district attorney’s office in December in part because she said Ogg’s administration has been too reluctant to offer jail diversion to defendants of color, in contrast with their white counterparts.

She said temporary court closures caused by Hurricane Harvey are not a driver of increasing caseloads, as Ogg contends, but rather are a result of her administration’s policies.

Murray Newman, who had some earlier thoughts about the Ogg proposal, notes that Audia Jones is married to Criminal Court Judge DaSean Jones. I’m not sure how that conflict gets sorted out if she wins (one obvious remedy would be for Judge Jones to step down), but that’s a concern for another day. I would have picked County Attorney Vince Ryan as the first member of the class of 2020 to get a potential primary opponent – designating a treasurer is a necessary step to running for office, but it doesn’t commit one to running – but here we are.

How many prosecutors do we need?

Opinions differ, but it’s a big question in Harris County right now.

Kim Ogg

Hanover is one of many prosecutors Harris County District Attorney Kim Ogg said are overburdened — the reason she has asked Commissioners Court for a budget that would fund 102 additional assistant district attorneys and more than 40 support staff. Ogg said the surge is needed to clear a backlog in cases exacerbated by Harvey, a driver of overcrowding at the Harris County Jail.

Her proposal to expand the prosecutor corps by a third, however, has evolved into a proxy battle over the future of criminal justice reform in Harris County. Ogg finds herself so far unable to persuade Democrats on Commissioners Court as well as reform groups, who have questioned her self-identification as a progressive and said her proposal would lead to more residents in jail.

“Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is police and prosecutors,” said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Ogg, a first-term district attorney who unseated a Republican in 2016 with the support of many progressive groups, said these critics fail to grasp the on-the-ground realities of her prosecutors, whose heavy workloads mean they sometimes are the reason cases are delayed and defendants languish in jail.

Ogg pledged to send the first 25 new hires to the felony trial bureau, where she said they can help achieve the reforms progressives seek, such as identifying low-risk defendants who can be sent out of the criminal justice system without a conviction.

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public?” she said. “This is a question of how fast do our funders really want to reform our justice system?”

Ogg laid out her argument in an interview Wednesday at the district attorney’s temporary quarters at 500 Jefferson, where a regular shuttle takes prosecutors to the criminal justice complex more than a mile away.

Ogg said since taking office, she is proud to have diverted 38,000 defendants for a variety of low-level offenses, including marijuana possession, misdemeanor theft, first time DUI and mental health-related charges such as trespassing. With an active caseload that jumped from about 15,000 when Harvey hit to 26,523 this week, she said prosecutors are not always able to give victims and defendants the attention they deserve.

Her staff noted Harris County’s 329 prosecutors are less than half the number in Illinois’ Cook County, which is only slightly more populous.

“With adequate staff, we’ll be able to offer pleas that are reasonable earlier,” Ogg said. “We’ll be able to focus on public safety to make sure we don’t let someone go who is really a risk and threat to either his family or his community.”

She sought to mollify the concerns of progressives who fear it could lead to more people in jail, saying, “There’s no data showing that more prosecutors equals more prosecutions.”

Here are the original statements put out by TOP and the TCJC. This subsequent Chron story gives some more detail.

“We would like to stop the clock and take time to consider other options, primarily looking at funding for mental health issues,” organizer Terrance Koontz said.

Koontz said TOP is looking at housing options for nonviolent offenders who may need to reset their lives.

“We’re talking about individuals who are being arrested for minor drug charges or being homeless on the street or having a mental problem, and they definitely shouldn’t be sitting in jail,” Koontz said. “We are not here to attack D.A. Ogg, we just want more time to consider our options.”

[…]

Doug Murphy, president of the Harris County Criminal Lawyers Association, agrees with Ogg’s proposal.

“Having witnessed the daily reality of their lack of manpower what we’re seeing is Harris County was the fastest moving docket in the country, we called it the rocket docket, and it slowed it down to a snail’s pace,” said Murphy. “What we got is bloated dockets because they don’t have the manpower to work these cases up and marshal the evidence.”

Murphy believes more prosecutors would help pick up the pace of getting cases to trial, resolved and even dismissed. “If I weren’t witnessing daily the backlog and the frustration, I would be in total agreement with the other organization,” Murphy said.

Koontz still worries that more prosecutors would ultimately mean more arrests and more people wrongly incarcerated.

“We just want to consider other viable options outside of just hiring the prosecutors,” Koontz said. “Because although it does not seem like putting more people in jail, at the end of the day we feel like more people will end up in jail than not and at the end of the day its black and brown people who are overwhelmingly being incarcerated.”

Honestly, I think everyone is raising valid concerns. The chaos of Harvey has caused a big backlog for the DA’s office, and it doesn’t serve anyone’s interests for cases to drag out because there just isn’t the time or the bandwidth among overworked assistant DAs to get to them. On the other hand, Kim Ogg made promises about how she was going to reform the system, and a big part of that was not prosecuting a lot of low-level crimes or crimes involving people who need mental health treatment. They also worry that while Ogg might not backtrack on her stated priorities, the next DA who inherits her bigger office may not share those priorities. It’s not at all unreasonable to worry that an increase in prosecutors will be counter to Ogg’s stated goals.

So how to resolve this? Grits suggests increasing the Public Defender’s office by an equivalent amount – Commissioner Rodney Ellis has suggested something like this as well, and the PDO is seeking more funding, so that’s on the table. I like that idea, but I also think it may be possible to assuage the concerns about what happens after the backlog is cleared by putting a time limit on the hiring expansion. Is it possible to hire people on one or two year non-renewable contracts, to get the office through the backlog but then have it return to a smaller size afterward? I’m just spitballing here, but if we agree that clearing the backlog is a worthy goal, then we ought to be able to find a way to ensure that doing so doesn’t lead to mission creep. I’m open to other ideas, but I feel like this is something that needs to lead to a compromise, not one side winning and the other side losing. I hope we can get there.

Bail lawsuit 2.0

This one will be tougher to tackle, but the principle remains the same.

A hard-fought battle to reform Harris County’s bail system has prompted a second civil rights action.

The legal team that successfully challenged the county’s bail practices for low level offenses on the grounds they unfairly detained indigents, filed a new federal class action suit this week tackling money bail for felonies, which results in thousands of poor defendants being locked up before trial or entering guilty pleas to avoid lengthy incarceration.

This new lawsuit, which hit the docket during the Martin Luther King Jr. Day holiday, claims the county is holding people unjustly, simply because they cannot afford to pay a cash bail. Currently, people arrested who can post a cash bond or hire a commercial bonding company can simply resume their lives as their cases proceed through the criminal docket.

The lawyers argue that pretrial release should not be contingent on how much money a person has. Its one of a number of lawsuits around the country, including one before a district judge in Galveston, attempting to topple bail systems that treat people differently based on their income.

“This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community,” the lawsuit argues. “Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children.”

[…]

The lawsuit noted there are human costs to keeping people in jail. Since 2009, the complaint stated, 125 people have died while awaiting trial in the county lockup, including a woman who committed suicide this month after she could not pay her original bail of $3,000.

“Now is the time for a new vision and a new era of collaboration and innovation,” the lawyers said in a joint statement to the Houston Chronicle. “We are confident that with the leadership of the county judge, the sheriff, the district attorney, the public defender, and the felony judges, all of whom have expressed their commitment to bail reform, we will be able to resolve this case without wasting millions of dollars of taxpayer money as happened in the prior case.”

Most of the key stakeholders struck a similar note in responding to the new lawsuit.

Tom Berg, first assistant to District Attorney Kim Ogg,said the office is glad to work with the parties toward “a fair, just and speedy resolution” and at the same time “responsibly conserve the county’s resources so that they go for the staffing needed for bail reform implementation and not litigation costs.”

County Judge Lina Hidalgo said the county aims to support public safety, fairness and a cost-effective, fiscally responsible system. She acknowledged that there’s a long way to go.

“We’ve got a system that in a way fails on all three fronts,” she said Tuesday. Hidalgo said the crop of newly elected officials seem dedicated to enacting these types of change.

The sheriff also mentioned safety concerns, saying felony bail improvements require careful examination. However, he lauded the idea of reforming what he has referred to as a “broken system.”

“I support all efforts to improve our criminal justice system that strike a smart balance between our duty to ensure public safety and upholding our American ideal that everyone is presumed innocent until proven guilty in court,” Gonzalez said. “I support equipping judges with the data they need to accurately measure each defendant’s unique risk of failing to appear in court and committing additional crimes before they stand trial.”

Of the three plaintiffs in this lawsuit, two were busted for drug possession and the other for DUI. There’s still a lot of non-violent inmates in the jail awaiting disposition of their case because they couldn’t scrape up a bond payment. As with misdemeanants, the ability to write a check to a bail bond agency has no correlation with whether you will show up for your court date or if you are likely to commit further crimes while out. Again, Robert Durst was out on bail. It makes sense to separate the genuine risks from the harmless shlubs. Will such a system be perfect? No, of course not. Some people who get out on a personal recognizance bond are going to turn out to have been bad risks. But again – I can’t say this often enough – people do that right now, under the current system. We just accept it as the way things are. Well, the way things are is capricious, unjust, and almost certainly unconstitutional, as the system for misdemeanors was as well. We’ll never have a better chance to design a better system. Let’s get to it.

How legal pot affects Texas

It has many effects.

In just two weeks in October, the legal landscape for marijuana use in North America changed dramatically.

First, Canada opened sales of legalized pot for recreational use, and then Mexico’s high court delivered a definitive ruling that citizens have the right to possess the weed for their personal use. That leaves Texas virtually surrounded by states that allow marijuana for medical use — but not for recreational purposes — as well as being sandwiched between two neighboring countries that have liberalized their stance on personal usage of the drug.

And while the Lone Star State is a long way from following the example of Canada and Mexico, there seems to be growing support for at least reducing stiff criminal penalties for possessing small amounts of the weed. Currently, possession of less than two ounces of marijuana is a class B misdemeanor, punishable by a six-month jail term and a $2,000 fine.

“Even in Texas, public opinion seems to have shifted from criminalization to at least decriminalization, with strengthening support for legalization,” said Nora Demleitner, a professor at Washington and Lee University School of Law in Virginia and the lead author of the textbook “Sentencing: Law and Policy.”

[…]

Despite the criminal penalties, Texas has two of the Top 10 consumer cities in the country. Houston occupies the fourth spot with an estimated 21 metric tons of weed consumed last year, after New York, Los Angeles and Chicago, according to the 2018 Cannabis Price Index from the German company Seedo, which tracks the market around the world. Dallas is number seven with 15 metric tons.

That high demand in Houston and elsewhere in Texas, some experts say, is not being met by traditional drug smuggling networks alone.

“Today in Texas, consumers easily find a wider variety of cannabis products than a few years ago coming from all over the place,” said Dean Becker, a Baker Institute contributing expert in drug policy.

Becker explained that states like Colorado, California and Oregon are growing more than their markets can absorb, and smugglers are flourishing moving the merchandise to other marketplaces. Mexico, he said, isn’t the main Texas supplier anymore as their producers are struggling to compete with the higher quality of U.S. grown products.

[…]

“The cannabis industry is a job creator, which Mexico and Canada realize, and it also cuts into the portfolio of criminals by making its use and sale a legitimate business that (creates) jobs and revenue,” said Grissom, the former federal prosecutor.

Grissom says Colorado is a good example, which reported total cannabis sales of $1.5 billion in 2017, and a staggering $5.7 billion since sales began in January 2014, according to the Colorado Department of Revenue.

“These funds did not go to criminals but to entrepreneurs who created over 20,000 new full-time jobs that paid a living wage as well as a new source of (tax) revenue for the state,” he said.

Overall, “the nascent U.S. cannabis market is already double the size of Canada’s, at $8.5 billion dollars,” said Brad Alexander, a senior adviser at McGuireWoods Consulting, a public policy advisory firm headquartered in Washington, D.C. He predicts that by 2022, this market could top $20 billion.

As the story notes, multiple DAs, mostly in big counties, are now de-emphasizing pot prosecutions, and Texas legalized – in a very limited way – a form of medical marijuana. Greg Abbott has made some comments recently about supporting a reduction in penalties for possession, but I’ll believe that when I see an anointed bill that is supposed to accomplish that. As for the prospects for legalization, I’ll just note that the arguments for it – economic benefit, especially as we are currently losing business from Texans who want to engage in it to neighboring states – sound an awful lot to me like the perennial arguments for expanded gambling. I don’t need to tell you how successful that pursuit has been. I think some small reforms by the Lege, with broader reforms pushed at the county level, will happen. Beyond that, keep your hopes in check.

What to do with the county courthouse?

Seems like a problem.

More than 15 months after flooding from Hurricane Harvey shuttered Houston’s 20-story criminal courthouse, county leaders say they will begin in January on the first phase of a multi-part $86 million restoration project, which won’t be finished until 2020.

But there is no timetable for the most ambitious part of the project — not scheduled to begin until June 2019 – that would greatly expand the chronically-crowded lobby areas, add more elevators and move critical building machinery out of the basement.

The extensive flood damage to the downtown skyscraper at 1201 Franklin has forced the relocation of hundreds of attorneys and staffers from the courthouse offices of the district attorney, public defenders office and other county departments to far-flung buildings across the city. The closure also forced dozens of courts to locate in other county courthouses, generally doubling up with courts that weren’t damaged, which has disrupted trials and clogged dockets.

The damage has also reignited the debate over the wisdom of making repairs to the critical court complex on the banks of a flood-prone Buffalo Bayou.

“We can’t possibly ask tax payers to foot the bill for redesigning the Criminal Justice Center without knowing the exact cause of the repeated flooding, and what is being done to stop it from happening yet again,” Harris County District Attorney Kim Ogg said Friday. “We have to object.”

[…]

“Things are progressing far slower than they should and the direction the county is going is just patchwork, not a long-term solution,” said Chris Tritico, a prominent attorney who has proposed converting the courthouse into an office tower. “We need a long-term solution that will keep us from having to do this again in a few years.”

Tritico’s proposal would be to build a new criminal courthouse across the street where the outdated family law courthouse now stands. That courthouse, which has been deemed a fire hazard because it lacks a sprinkler system, was scheduled for demolition. After the storm, it was pressed into service and now hosts docket calls and jury trials because the main courthouse remains largely unusable.

Tritico said repeated catastrophic flooding, along with long-standing design problems including a small lobby and limited elevator capacity, makes the building unworkable for the hundreds of residents coming who use it every day. The courthouse, which opened in 2000, was closed for a year of repairs after it was damaged by floods during Tropical Storm Allison in 2001.

“The problem with the Harris County Criminal Courthouse, besides the flooding, is that it’s just not functional,” said the attorney, who is part of the county committee to study the courthouse repairs. “The population of Harris County is increasing, not decreasing, so the number of people coming in that building every morning is going to increase. Until somebody takes a look at that problem, it will always be a problem.”

The fact that no one can say why the building flooded during Harvey is a problem, since if you don’t know the cause you can’t say with any certainty that it won’t happen again. The building has to be downtown near the jails, so relocation options are limited. In the meantime, court is being held all over the place. Good luck getting your arms around this one, Lina Hidalgo.

Arkema indictments

This will cause a stir.

A Harris County grand jury on Friday indicted the French chemical company Arkema and two executives for the “reckless” release of toxic chemicals during Hurricane Harvey last August, a move that alarmed industry leaders and surprised environmental advocates.

The company, CEO Richard Rowe and plant manager Leslie Comardelle put residents and first responders at risk when the Crosby plant caught fire as Harvey dumped record rainfall on the Houston area, according to the Harris County District Attorney’s office.

“As the hurricane approached, Arkema was more concerned about production and profit than people,” said Alexander Forrest, chief of the District Attorney’s environmental crimes division.

The last time a chemical company faced criminal charges for a major incident in Texas was 2005, when an explosion at BP’s Texas City refinery killed 15 workers and injured almost 200. BP paid $50 million in fines for the incident but no one from the company served prison time.

Arkema called the criminal charges filed against it “astonishing” and pledged to fight them vigorously.

“There has never been an indictment like this in Texas or any other state,” Arkema attorney Rusty Hardin said. “It would set an ominous precedent if a company could be held criminally liable for impact suffered as a result of the historic flooding of Hurricane Harvey that no one, including Harris County itself, was prepared for.”

But federal documents showed Arkema wasn’t even prepared for a much smaller flood, despite being partially located in a floodplain.

[…]

Harris County District Attorney Kim Ogg said she’d go after companies who pollute. Environmental advocates applauded her actions.

“I hope these kinds of criminal charges will really get the attention of not just Arkema but the industry more broadly,” said Luke Metzger, executive director of the advocacy group Environment Texas. “They can’t play fast and loose with safety standards and the protection of the public.”

See here, here, and here for some background. Arkema is also being sued by Harris County, which is usually how these things go when any action is taken. Going for indictments is a bold move, one that hasn’t been done before, but one that is at least worth considering, given the circumstances. Whether the indictments will survive the motions to quash them, and the appeals in those motions are denied, is the key question. I will keep an eye on this.

Darian Ward indicted on charge of violating public information laws

Wow.

Mayor Sylvester Turner’s former press secretary, Darian Ward, was indicted by a grand jury this week for failing to turn over public records in response to a reporter’s request late last year.

The indictment, handed up Tuesday but released by Harris County District Attorney Kim Ogg’s office Thursday, says Ward, in “misrepresenting” the number of emails responsive to a reporter’s request for correspondence about her personal business activities, “unlawfully, with criminal negligence … failed and refused to give access to … public information.”

Ward resigned in January, weeks after news broke that she had been suspended for withholding the records, and because the records showed she had routinely conducted personal business on city time.

[…]

“Mayor Turner expects every city of Houston employee to comply with the Texas Public Information Act,” mayoral spokeswoman Mary Benton said, noting the mayor was on a trade mission to South America. “Questions about today’s grand jury decision should be directed to the Harris County District Attorney’s office.”

She is charged with failure or refusal by an officer for public information to provide access to public information, a misdemeanor punishable by a fine of up to $1,000, six months in jail or both.

The indictment first was reported by KPRC Channel 2.

[…]

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said it is common for officials to stall the release of records or impose unreasonable charges for the documents’ release without technically violating the law, and many more — typically unprovable — cases in which requesters suspect the act is being violated.

“It is very important that officials are taking the Texas Public Information Act seriously,” Shannon said. “Whatever comes out of this indictment, it shows that attention is being focused on the Public Information Act and the importance of adhering to the act.”

See here and here for some background on Darian Ward’s end of tenure with the city. I’m irresponsibly speculating well in advance of any evidence, but I would not be surprised if this winds up with a plea deal and a minimal fine. Whether that sets an example for adhering to the Public Information Act or not is up for debate, but I will agree that this law is routinely ignored and should be enforced more often. Those of you with long memories may recall the Rick Perry email saga, which included a complaint filed with the Travis County DA that did not result in any charges. We live in different times now, I guess.

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.

The most interesting story related to the County Treasurer’s office you may ever read

Oh, yeah.

A top administrator at the Harris County Treasurer’s Office charged with stealing money from a county credit union told investigators he was using the funds to pay off a dominatrix he met online who was trying to blackmail him, county officials said Friday.

Gregory Wayne Lueb, the second in command at the Harris County Treasurer’s Office, is accused of stealing $35,000 in a check-kiting scheme that left the Harris County Credit Union holding the bag for the cash.

Lueb told investigators he met a dominatrix —a woman who punishes men in sexual situations — named “Mistress Cindy” on a sadomasochism website in 2016.

He said the woman blackmailed him into sending her money from his personal account at the credit union by telling him he’d tell his wife of his indiscretions if he didn’t.

In announcing the felony theft charges Friday, Harris County District Attorney Kim Ogg said “Cindy” may or may not be real, but that Lueb had been arrested for a check fraud scheme that ran between August and December 2016.

“We don’t know if the dominatrix exists or not,” Ogg said. “The more salacious points are obvious in Mr. Lueb’s admissions, but whether they are true or not is really beside the point. We know that he was stealing from Harris County employees because it’s our money in the credit union.”

[…]

Ogg said Lueb was the target of two investigations: one initiated by the DA’s office and one begun by the Harris County Sheriff’s Office. The two probes were combined when investigators realized both agencies were looking into allegations of fraud that linked back to Lueb.

Ogg called for an audit of the treasurer’s office, headed by County Treasurer Orlando Sanchez.

Sanchez said Lueb did not have sole access to county funds. He said well-established safeguards and forms require multiple signatures from different department heads, so he is not worried that Lueb could have embezzled from the treasurer’s office.

“No one person in this county has the ability to move a dime,” he said. “No one person in Harris County has the authority to move money … The important thing is there’s no public funds (involved, no county money.”

Lueb has since been fired. I’ll be interested to see if there are further calls for an audit of the Treasurer’s office. I doubt there would be anything terrible to find, but having to deal with that in an election year probably does not make Orlando Sanchez happy. The last thing he wants is for this to be anything more than a one-day story.

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.

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.

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.

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.

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.

County considers its bail options

I can think of one, if they need some help.

With just two weeks until the 193-page order from Chief U.S. District Judge Lee H. Rosenthal kicks in May 15, county officials are working to draft a plan to deal with the hundreds of misdemeanor offenders now behind bars and the new cases filed each day.

County officials and more than a dozen lawyers spent Monday in meetings deciding whether to appeal the order, said Robert Soard, first assistant at the Harris County Attorney’s Office. He said he anticipates the legal team will have a recommendation about whether to appeal before the next Commissioners Court session May 9.

Jason Spencer, spokesman for Sheriff Ed Gonzalez, said the changes will require collaboration among multiple agencies to comply with the ruling so quickly.

“It’s not just a flipping of a switch and now we can do these things,” he said. “It takes time and planning to put new systems in place that weren’t there before.”

Paula Goodhart, administrative judge for the misdemeanor courts, was also among those in the meetings.

“Like everyone else, we’re still trying to process it,” Goodhart said.

Goodhart declined to answer questions specific to the lawsuit, because she is one of the defendants. Instead, she spoke about changes that have been in the works for the past two years to reform the county bail system.

“We do recognize that low- and moderate-risk people should be out pending trial,” she said. “We just want to balance public safety with individual liberty interests.”

On any given day, between 350 and 500 people-about 5.5 percent-of the jail population are awaiting trial on misdemeanors. But about 50,000 people are arrested in Harris County on misdemeanors each year, so the number of people who would not have to pay a bondsman or plead guilty to get out of jail could be in the tens of thousands.

County budget officer Bill Jackson said his office is working to understand how many people may be released by the judge’s order and how much that could reduce the cost of incarceration at the overcrowded jail.

“This is such a moving target,” Jackson said. “There’s just way too many ‘what-ifs’ and variables.”

See here for the background. I can’t help with the what-ifs and the variables, but I can give them one solid piece of advice: Don’t appeal. Save your money on the high-priced lawyers and start implementing what the judge ordered. The county will save a bunch of money by not having so many people in jail, and with that there will be fewer deaths, fewer rapes, fewer allegations of brutality against the guards, and so on. There will also be a higher general level of justice in the county, with fewer people forced out of work and fewer people spending money they don’t have on bail bondsmen and court costs. Less cost, less death, more justice. Someone help me out here, what is it we have to think about here?

Some officials, however, bristled Monday at the judge’s opinion,which was handed down late Friday.

Precinct 4 Commissioner Jack Cagle said the ruling was an example of a federal judge changing Texas law. Precinct 3 Commissioner Steve Radack wondered whether the release of inmates could impact public safety.

“Just because somebody has been charged with a Class B or A misdemeanor doesn’t mean that’s a person that’s a real nice person, that’s real trustworthy and hasn’t been involved in an active assault,” Radack said.

Take your two-bit scare tactics and tell it to Judges Hecht and Keller, guys. And settle the damn lawsuit.

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.

Commissioners get testy over bail practices lawsuit

Let’s hash it all out.

Sen. Rodney Ellis

Tensions flared at Harris County Commissioners Court Tuesday after new Commissioner Rodney Ellis filed legal papers supporting civil rights groups in their high-profile federal lawsuit against the county and its bail system.

In a rare public argument before dozens of onlookers at the meeting Tuesday, Ellis’ colleagues — all Republicans — took issue with his action, with some calling the move unprecedented and insinuating that the county attorney should consider whether Ellis could be excluded from private discussions about the lawsuit in the future.

“I’m concerned about how this impacts commissioners court, impacts executive sessions,” said Precinct 3 Commissioner Steve Radack, who represents western and northwestern portions of the county, including Katy and Cypress. “I’ve never been through something like this before.”

The exchange shows how the lawsuit has exposed new fissures in county government. Ellis, a former state senator, says he is making good on a promise to shake up the traditionally quiet, non-combative style of the governing board of the country’s third-largest county, with strategies he says have successfully helped him in a Republican-dominated state Legislature.

After the meeting, Ellis defended his actions, saying he would be prepared to take legal action if he were excluded from executive sessions. Without the lawsuit, he said, the system would not have changed.

“If it were not for politics and pressure, the administrators here in the county would still be administering for decades,” he said.

[…]

Ellis’ brief offers to help Chief U.S. District Judge Lee H. Rosenthal assess the collateral impact that cash bail has for poor, mentally ill and homeless people and African-Americans — who are jailed at disproportionately greater rates and suffer extreme economic harms when they spend time behind bars.

In addition, the brief says, lengthy jail time impacts their legal prospects and their health. It mentions the example of Sandra Bland, a black motorist arrested in Waller County after a traffic stop, who committed suicide after spending a weekend in jail on a bond she could not afford.

The civil rights groups’ remedy for Harris County is “eminently feasible, cost-efficient, and narrowly-tailored,” and is consistent with the county’s ongoing aims to improve bail practices, the brief says.

See here for the most recent update; we are still waiting for a ruling on an injunction. I get the concerns expressed by Commissioners Radack and Cagle and Judge Emmett. It is undoubtedly a weird place for Commissioners Court to be to not be all rowing in the same direction. Of course, the Sheriff and District Attorney are also in favor of settling the lawsuit and implementing the reforms the plaintiffs are seeking. It’s true that Harris County has been moving in the direction of some of these reforms and that some good has already been done, but it’s also true that the problems have been there for decades, and none of these reforms were put in place before the lawsuit was filed. Given the amount of money that has already been spent by the county defending against the lawsuit and the likelihood of losing, seeking to settle and get to the real work sooner rather than later sure seems like a viable strategy to me. What exactly is it the county is fighting for at this point?

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.