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Kim Ogg

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


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.


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.

Two unsatisfying articles about the 2016 Democratic sweep in Harris County

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

Back to Buzbee

Looks like we’re not done with this yet.

Kim Ogg

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

Bail practices lawsuit gets going

The first day in court for this lawsuit was Monday.

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Ogg sides with bail reformers

As well she should.

Kim Ogg

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

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

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

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


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

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

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

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

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

No decision yet in the Temple case

Give it two more months.

Kim Ogg

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

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

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

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

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

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

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

On pot and potties

Two more poll results to note.

Opposition to legal marijuana is dropping in Texas, with fewer than one in five respondents to the latest University of Texas/Texas Tribune Poll saying they are against legalization in any form.

Support for marijuana only for medical use has dropped over the last two years, but support for legalization for private use — both in small amounts or in amounts of any size — has grown since the pollsters asked in February 2015.

“We’ve seen this movie before on a couple of social issues,” said Daron Shaw, a professor of government at the University of Texas at Austin and co-director of the poll. He thinks the changes in Texas have more to do with shifting attitudes than with news of legalization in other states. “There’s a little bit of normalization. I don’t think this is a states-as-laboratories issue. Voters don’t care about that kind of stuff.”

Overall, 83 percent of Texans support legalizing marijuana for some use; 53 percent would go beyond legal medical marijuana to allow possession for any use, the poll found. Two years ago, 24 percent of Texans said no amount of marijuana should be legal for any use and another 34 percent said it should be allowed only for medical use.


Most poll respondents — 54 percent — said Texans should use the public restrooms based on their birth gender, while 31 percent said they should base their choice on their gender identities.

State lawmakers are considering legislation that would require people to use facilities in public buildings that match their ”biological sex” but would not regulate which restrooms transgender and other people should use in privately owned buildings. Republicans are more likely to agree with that position than Democrats: 76 percent said transgender people should use restrooms that match their birth gender, while 51 percent of Democrats said gender identity should be the standard.

Neither group is convinced this is an important issue, however. Overall, 39 percent of Texans said it’s important for the Legislature to pass a bathroom law, while 51 percent said it’s not important. While 24 percent rated passing a law “very important,” 38 percent said it is “not at all important.”

“The proponents of [Senate Bill 6] are onto something in saying that the basic underlying impulse in a conservative state like Texas is to think that bathroom access should be determined by birth gender,” Henson said.

“What seems to be a big part of the debate right now is whether the Legislature should be spending a lot of time on this issue,” he said.

Again, there’s a partisan split, but it’s not enormous: 44 percent of Republicans and 37 percent of Democrats said the issue is important; 49 percent of Republicans and 50 percent of Democrats said it’s not an important issue.

“On most social issues, when they come to live-and-let-live, when you talk about the government mandating something, conservatives get uncomfortable about that,” Shaw said. “When it comes to letting people live, Republicans are fine with that.”

On the first point, you can see why Kim Ogg is unlikely to care too much what Dan Patrick thinks about her new pot diversion policy. On the second point, you can see that while a lot of people may agree with Dan Patrick, most of them don’t care all that much about the bathroom issue. Which has been a big problem for him all along, overcoming the “there are more important things to deal with” argument. The good news is that he only has a limited amount of time to do that. The bad news is that we know he’ll never give up, so as long as he’s in office this will be something he pushes for. Changing minds and changing Lite Guvs are our two best options for countering him.

Ogg launches her pot prosecution reform program

We’ve been waiting for this.

Kim Ogg

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Professional Integrity

I like this.

David Mendoza

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

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

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

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

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

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

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

Ogg to review Temple case

We’ll see how this goes.

Kim Ogg

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

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

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

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

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

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

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

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

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


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

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

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

Kim Ogg’s swearing in

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

Kim Ogg

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

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

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

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

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


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

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

The law requires prosecutors to share evidence with defense attorneys.

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

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

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

Here come the Dems

All the newly-elected county officials have now been sworn in.

The new Harris County officials sworn in New Year’s Day had something in common: They were all Democrats.

The swearing-in ceremony at 2 p.m. Sunday followed the Democratic Party’s sweep of every countywide office in November’s general election, including closely watched contests against incumbent Republicans for DA and sheriff.

The blue wave in a normally purple county where President Barack Obama won by just one-tenth of a percent in 2012 was driven largely by the unpopularity of Republican presidential nominee Donald Trump, who polled just 42 percent in Harris County compared to Democrat Hillary Clinton’s 54 percent, according to the county clerk’s official election results. Trump’s unpopularity here helped spur the Democrats’ 11-point advantage in straight-ticket voting.


County Judge Ed Emmett, Harris County’s top elected official, addressed the officials and their families.

“Don’t let your ego get in your way,” he told them. “The election is over and none of us is really that important. We are part of a governmental machine that’s been going a long, long time. … The ego of the campaign goes away. You’re not the office. You just occupy the office.”

Though Emmett mostly repeated his remarks from the 2015 swearing-in, he added a few comments this time around.

“This has been a heck of a year. … There’s been a lot of talk of divisiveness, ‘us’ versus ‘them,’ ” he said, citing partisan echo chambers and the dangers of fake news. “Everyone should be ‘us,’ ” he said.

Here’s a slightly different version of the story that mentions Fort Bend and Montgomery Counties as well. I appreciate Judge Emmett’s words about unity, but it will be interesting to see how that plays out in practice on Commissioners Court, which is still 3-1 Republican. Steve Radack had no qualms about slapping around Adrian Garcia while he was Sheriff, and he was already mixing it up with his now-colleague Commissioner Rodney Ellis even before Ellis was formally nominated to the office. Neither Ellis nor Kim Ogg will shy away from a fight, and the county is going to have to deal with both the Legislature and likely the Congress working to make things more difficult. It’s going to be an interesting year, let’s just leave it at that.

Ogg begins assembling her team

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

Kim Ogg

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

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

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

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

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

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

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

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

David Temple released on bond

We’ll see what happens next.

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

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

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

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

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


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

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

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

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

One more thing:

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

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

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

Yet another lawsuit filed against Harris County criminal justice

Lawsuit number three.

Harris County has been sued in federal court for the third time in less than a year for yet another issue related to the county’s tough arrest and pretrial detention practices.

This time, civil rights advocates allege that county officials routinely charge and jail thousands of people each month without a warrant and without ever requiring police officers to supply sworn statements taken under oath that adequately describe the crimes for which the defendants stand accused, according to a lawsuit filed Wednesday in the Southern District of Texas.

The plaintiffs are a pair of non-violent offenders arrested and jailed over the Christmas holidays.

Lucas Lomas was arrested Christmas Eve for allegedly pilfering “five DVDs and a speaker,” according to a document prepared by a prosecutor and co-signed by an officer. The filing provides no details about how the arresting officer determined Lomas had stolen the items. After a video hearing that is typical in Harris County, a hearing officer found probable cause. Lomas was released after posting $15,000 bail.

Carlos Eaglin was arrested Dec. 26 for alleged possession of less than 2 ounces of marijuana. Court papers co-signed by an officer and prosecutor accuse Eaglin of marijuana possession, but do not indicate a statement from the officer about how the substance was discovered or determined to be marijuana. After his video hearing, Eaglin was jailed on a $5,000 bond – the highest amount specified for any misdemeanor in Harris County’s so-called bond schedule. He remains in jail.

The lawsuit seeks to compel the county to provide all arrestees with a more detailed statements of facts that are supported by an oath or information provided by a police officer that is consistent with both state and federal law. Those documents then could be reviewed by what the case describes as a neutral magistrate.

You can see a copy of the complaint here. The other two lawsuits are about bail practices and detention time, with the city being the defendant in the latter case. I Am Not A Lawyer, but what the plaintiffs are asking for in this action sure seems like a reasonable thing to me. As with the other lawsuit, incoming DA Kim Ogg will have to decide how she wants to handle this.

More DA drama

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

Kim Ogg

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

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

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

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

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

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

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

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

The new Sheriff in town

Sheriff-elect Ed Gonzalez has his work cut out for him.

Ed Gonzalez

When newly elected Sheriff Ed Gonzalez takes office on Jan. 1, he will face a tangle of budget, staffing and jail inmate safety issues inherited from more than a decade of struggles at the nation’s third-largest sheriff’s department.

Staff shortages at the troubled jail operation alone have resulted in overtime expenditures of $14.8 million so far this year, adding to a current tab of $10.4 million to pay for temporary medical help in the jail clinic and mental health wards, county budget records show.

The burgeoning jail population – which soared to more than 9,400 inmates in September – has forced officials to put some inmates on temporary cots and ship others to private, for-profit jails for up to an additional $1 million a month.

And on the law enforcement side, critics point to low clearance rates for nearly all crime categories and a need for additional investigators and patrol deputies.

Gonzalez, a longtime Houston homicide detective who served on the City Council before being elected sheriff in November, told the Chronicle he is apprehensive about the fiscal condition of a department responsible for public safety in a large swath of unincorporated Harris County.

“My main priority will be dealing with the budget, the need to improve the situation at the jail, the overtime issues that are killing the budget, and morale that is really low right now,” Gonzalez said recently, as he prepares to take office.

Gonzales said he is committed to hiring an experienced, certified jail administrator to help oversee operations in the county’s sprawling jail complex and will work with the patrol and investigative divisions to improve clearance rates of crime.

He’ll also have to develop a new leadership team. The sheriff-elect said he expects only a few of the 25 high-ranking members of outgoing Sheriff Ron Hickman’s command staff to remain.


Jail safety expert Michele Deitch urged Gonzalez to create an independent group, or an ombudsman, to closely monitor jail conditions in what is largely a closed system.

“Prisons and jails around the country are the least transparent organizations that exist, yet they are the places where there is more urgency to make sure there is public transparency about what goes on and accountability for insuring the safe treatment of inmates,” said Deitch, a senior lecturer at the LBJ School of Public Affairs at the University of Texas at Austin. “What Harris County needs is a local system of external and independent oversight over the jail, in the same way we have created police accountability systems.”

Recent reports ranked Harris County with the highest per-capita rate of jail deaths of any other jail in the nation, as well as continued attempts at suicide by inmates and violent assaults on inmates and guards, Dietch said.

In April, Patrick Joseph Brown, 46, was jailed for allegedly stealing a guitar and then beaten to death in a crowded holding cell by two other inmates. The cell was equipped with surveillance cameras, but due to a lack of staffing, no officers were watching the monitors. At least two other deaths in the jail came after assaults on inmates by other prisoners, according to state in-custody death reports.

“The key to a safe jail is the staff,” Deitch said, “and you need to make sure staff are there in sufficient numbers, well-trained, alert and engaged and their morale is high.”

I’ve covered some of this before. I’ll say again, I believe the single most effective thing our new Sheriff can do to relieve both his budget and personnel issues is work to reduce the number of inmates in the jail. You know the song I’m singing, and it really is that simple. All of the problems discussed in this story are related to the locking up of too many people who have not been and in many cases will never be convicted of a crime. Gonzalez has less power to affect this problem than some others – he will be very dependent on the magistrates and misdemeanor judges who treat jail space as infinitely renewable – but he can at least order his deputies to issue citations to low-level non-violent offenders instead of arresting them, and he should have an ally in DA-elect Kim Ogg. He can also help force a settlement in the bail practices lawsuit against the county. He will still have plenty of other things to deal with, but getting this solved will make the totality of his task a lot less daunting.

Ogg does some housecleaning

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

Kim Ogg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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