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HPOU wades into the DA race

They’re all in for incumbent Devon Anderson.

Kim Ogg

Kim Ogg

The already intense race for Harris County district attorney became more heated Wednesday with the Houston Police Officer’s Union attacking Democratic candidate Kim Ogg, saying that during her time at Crime Stoppers she violated the privacy of victims she was supposed to help support.

The 5,300-member group is endorsing GOP incumbent Devon Anderson, who declined to comment about the attack, which included a radio ad that was released earlier in the day.

At her news conference later Wednesday, Ogg called the attack a “desperate act,” then accused Anderson of making backroom deals involving a former judge and at least one former police officer, allowing them to avoid prosecution.

“The union’s support of Ms. Anderson, launching an ad 13 days before the election is a desperate act by this incumbent,” Ogg told reporters. She denied any wrongdoing and said the ad was not true.

At the union news conference, Anderson touted her record and thanked area law enforcement agencies for their endorsements.

“Since I’ve been in office, we’ve tried almost 700 jury trials,” Anderson said. “And of those, over 70 percent are violent criminals, the rest are property crimes and a very small percentage are drug cases.”

[…]

During the union’s news conference, Hunt said Ogg’s style was similar to former district attorney Pat Lykos, who was ousted in the 2012 GOP primary by Mike Anderson.

“It’s going to be very much like it was under Pat Lykos,” Hunt said of an Ogg administration. “It would make our job a lot more difficult.”

The union has long protested the so-called “trace case policy” instituted by Lykos, then repealed by Anderson. The police unions want crack cocaine users caught with powder-covered crack pipes to be arrested on felony charges. Citing clogged courts, overcrowded jails and the inability for the defense to re-test the scant amount of evidence, Lykos directed police to ticket those offenders for misdemeanor possession of drug paraphernalia. The policy was applauded by criminal justice system reformers and derided by law enforcement agencies.

“There’s a direct correlation between the trace case people and the amount of burglaries we have,” Hunt said.

Ogg denied the claims made by Hunt and the HPOU and pressed her own charges against Anderson, but that last bit above is what all this really comes down to. Anderson, even with her willingness to make incremental changes in how pot prosecutions are handled, represents the way things have always been done in the Harris County DA’s office. Ogg, like Lykos, represents change. As is always the case with change, not everyone likes the idea. As you know, I agreed with Lykos’ trace case policy, and I do think the DA’s office could stand to do things a little differently. I look forward to seeing what Kim Ogg can do in that position. Ray Hunt would disagree, and that’s fine. That’s why we have elections. Hair Balls has more.

Endorsement watch: Ogg for DA

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

Kim Ogg

Kim Ogg

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

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

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

[…]

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

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

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

The debate over handling drug cases in the DA race

An update from the Chron.

Kim Ogg

Kim Ogg

Incumbent Devon Anderson and challenger Kim Ogg have somewhat similar thoughts on dealing with misdemeanor marijuana possession, but are on polar opposites when it comes to trace amounts of crack cocaine, a perennial debate in Harris County.

On marijuana, both are proposing a diversion program, which offers the opportunity for offenders to avoid conviction and jail time.

Earlier this month, Anderson, a Republican, released to the Houston Chronicle general contours of a pilot plan for first-time marijuana offenders, which is still being developed with the Houston Police Department, the Harris County Sheriff’s Office and other county law enforcement offices.

The biggest difference between Anderson’s plan and the one announced last month by Ogg is whether those caught with the drug will be arrested and taken into custody.

Ogg also says her plan will save taxpayers millions.

[…]

The benefit to Ogg’s plan, advocates said, is keeping police officers on the street instead of spending time bringing in low-level offenders.

“It doesn’t make sense for people who are going to be released anyway to be driven across the county,” said Joe Ptak, who heads Texans Smart on Crime, a group working to implement “Cite & Summons” across the state. “Having police on patrol is the most effective way to protect communities, and Cite & Summons gives communities the opportunity to do that.”

Under Anderson’s plan, scheduled to go into effect this fall, every suspect will be taken to a police substation, where they will be booked in to the system and evaluated.

If deemed a low-risk, first-time offender, the person will be eligible for the program, which dismisses the case pending completion of community service and possibly, classroom instruction. If the requirements are successfully completed, no conviction appears on the person’s record.

Repeat offenders and those with prior convictions will be booked into jail and will not be eligible for the program.

“The new program still allows for the police to make an arrest,” Anderson said in an email response to questions. A former felony court judge who presided over a drug court docket.

Under both plans, those who fail to comply with any of the requirements would be charged with the original case and arrested.

Ogg unveiled her plan last month, though she has been talking about it for a lot longer than that. I’m glad to see that DA Devon Anderson is partially on board with the idea, but 1) carting arrestees to police substations isn’t really that much of a savings in time and effort over hauling them downtown, and 2) given that Anderson was originally opposed to making any changes in handling pot cases, you have to give Ogg credit for changing the nature of the debate. She’s been the leader here, Anderson is trying to catch up.

And the election will raise again the different opinions on handling trace amounts of crack cocaine.

If elected, Ogg said, her first order of business will be to stop accepting criminal charges for people caught with cocaine residue in their mouths, on crack pipes and on other drug paraphernalia. The so-called “trace case” policy has see-sawed among the DAs. In 2012, GOP challenger Mike Anderson unseated incumbent Pat Lykos in part by attacking her policy of issuing misdemeanor tickets instead of arresting drug users for felonies in cases where police found tiny amounts of cocaine residue.

The issue was especially important to law enforcement agencies in 2012 and hinges on whether police officers should spend time and resources taking crack addicts to jail to be prosecuted.

He had argued that arresting low-level drug users was an effective tool for police to go after kingpins and high-level drug dealers. He also said it reduces crimes like burglaries, especially car break-ins, a position that was widely embraced by law enforcement unions.

Anderson reversed Lykos’ policy shortly after taking office. His wife, who was appointed to the post after his death last year, adopted his stance.

“How the courts and (assistant district attorneys) handle these cases in court can help address the offender’s problem with addiction,” Anderson said in a written response. She said her administration offers treatment options and deferred adjudication when appropriate.

As you know, I support the trace case policy, first implemented by Pat Lykos. I don’t believe ditching that policy has led to better outcomes, and I don’t believe being hardnosed about it is worth the cost. Ogg is also quite correct to point out the disparate effect that trace case arrests have on people of color. She’s on the leading edge of the trend, and I support the direction she wants to go.

Of course some people will split their votes

It’s just a matter of how many of them do so, and if the races in question are close enough for it to matter.

Sen. Leticia Van de Putte

Sen. Leticia Van de Putte

Democrats are hoping the Republicans will eventually make some of the mistakes Democrats themselves made back when they were on top and the GOP was trying to break down the doors of power. They ran candidates — particularly at the national level — who were too liberal for conservative Texas Democrats to stomach. They developed a split between conservatives and liberals that made it possible for Republicans to peel away the conservatives and form the beginnings of what is now a solid Republican majority.

The notion behind the current Van de Putte proposition is that — to Democrats — Patrick is so extreme that even some Republicans will rebel and vote for the Democrat. In a debate with Patrick this year, San Antonio Mayor Julián Castro said the Houston Republican would be the Democrats’ “meal ticket” in November.

The differences between the two top candidates (there are also a Libertarian, a Green and an independent in the race) are stark: gender, ethnicity, party, ideology, roots. She is likely to attack his positions on immigration, health care, abortion, equal pay and education. He is likely to attack her positions on some of those same things, characterizing her as a liberal who wants to expand government and poisoning his darts with the unpopularity of the Democratic president.

To be the only Democratic statewide winner in November, Van de Putte would need to make sure Patrick doesn’t perform as well as Greg Abbott. And that requires one to imagine the voter who will vote for Abbott and then turn and vote for Van de Putte — who will vote against Wendy Davis for governor and against Patrick for lieutenant governor. Republicans are betting there won’t be many of those. Democrats are hoping that women and minorities will have an allergic reaction to his rhetoric and positions, creating an opportunity for their candidate.

It happened before, but this was a different state when voters elected George W. Bush, a Republican, and Bob Bullock, a Democrat, to the top two positions on the ballot. It nearly happened again four years later, when Bush won re-election against Garry Mauro by 37 percentage points and Republican Rick Perry beat Democrat John Sharp by less than 2 points in the race for lieutenant governor.

It’s true you have to go back to 1994 to find an example of a party split at the top of state government, but you don’t have to go back nearly that far to find a significant split in how people voted for those two offices. Just in 2010, more than 300,000 people voted for Bill White and David Dewhurst. That always gets overlooked because the races were not close in 2010, making White’s effort little more than a footnote, but the point is simply that people – many people – can and will split their vote in the right set of circumstances.

We also saw plenty of examples of this in 2012, though not at the statewide level. Congressman Pete Gallego, State Rep. Craig Eiland, and *ahem* State Sen. Wendy Davis all won races in districts that voted majority Republican otherwise. In Harris County, some 40,000 people voted for Mitt Romney and Adrian Garcia, while in the other direction another fifteen or twenty thousand voted for Barack Obama and Mike Anderson. In all of these cases, those ticket splitters very much did matter – the first three could not have won without them, while the latter two could have gone either way, as Harris County was basically 50-50 that year. This is why the efforts of Battleground Texas mean so much. Democrats have to get their base vote up, or else it won’t matter how much crossover appeal Leticia Van de Putte – or Wendy Davis, or Sam Houston, or Mike Collier – may have. It’s not either-or, it’s both or nothing.

January campaign finance reports for Harris County candidates

BagOfMoney

In our previous episode, we looked at the campaign finance reports for Democratic statewide candidates. Today, let’s have a look at the reports for candidates for countywide office in Harris County. I’m not going to get down to the Constable or JP level – I’m not aware of any interesting primaries, those districts tend not to be too competitive, and there are only so many hours in the day. Neither County Commissioner Jack Cagle nor Jack Morman has an opponent, so I’m skipping them as well. The real interest is in the countywide campaigns, so here are those reports.

County Judge

Ed Emmett
Ahmad Hassan
David Collins

Candidate Raised Spent Cash on hand ========================================== Emmett 28,600 119,244 401,209 Hassan 0 1,250 0 Collins 0 0 0

The only thing Judge Emmett has to fear, I’d say, is a 2010-style Democratic wave. Other than that, he should win without too much trouble. In the meantime, he will have plenty of campaign cash to spend on various things, including a $10K contribution to the campaign of Paul Simpson, who is challenging Jared woodfill to be Chair of the Harris County GOP, and $5K to the New Dome PAC. It’ll be interesting to see how much he spends on other campaigns from here on out.

District Attorney

Friends of Mike Anderson
Friends of Devon Anderson
Kim Ogg
Lloyd Oliver

Candidate Raised Spent Cash on hand ========================================== Anderson 0 29,730 36,739 Ogg 66,643 8,897 40,771 Oliver 0 0 0

The Friends of Mike Anderson PAC gave a contribution of $66,469.58 to the Friends of Devon Anderson PAC, which closed out the books on it. I presume Devon Anderson will commence fundraising at some point, and will have all the resources she needs. Kim Ogg has done a decent job fundraising so far, but it’s what you do with what you’ve got that ultimately matters. Zack Fertitta had $145K on hand as of his 30 day report in 2012, and we know how that movie ended. Early voting starts in three weeks, you know.

County Clerk

Stan Stanart
Ann Harris Bennett
Gayle Mitchell

Candidate Raised Spent Cash on hand ========================================== Stanart 16,400 19,398 45,969 Bennett 10,748 7,113 2,442 Mitchell 1,138 2,010 0

Stan Stanart has $20K in outstanding loans, which was the case in July as well. His fundraising came almost entirely from two sources – the campaign of County Commissioner Jack Cagle ($10K), and a Holloway Frost of Texas Memory Systems ($5K).

District Clerk

Chris Daniel
Friends of Chris Daniel
Court Koenning
Judith Snively

Candidate Raised Spent Cash on hand ========================================== Daniel 0 15,871 0 Daniel SPAC 31,843 24,166 20,859 Koenning 38,165 48,974 112,814 Snively 5,300 3,095 2,204

Still a lot of money in this race. Incumbent Chris Daniel’s PAC and challenger Court Koenning both have the same outstanding loan totals that they had in July – $74,500 for Daniel, and $50K for Koenning. Democrat Judith Snively has loaned herself $4K. I suspect we won’t see as much money raised in this race after the primary as we do before it.

County Treasurer

Orlando Sanchez
Arnold Hinojosa
David Rosen

Candidate Raised Spent Cash on hand ========================================== Sanchez 23,500 5,577 220,437 Hinojosa 0 1,250 0 Rosen 2,875 2,122 651

Orlando Sanchez’s eye-popping cash on hand total comes from an equally eye-popping $200K loan to himself. This leaves me wondering where he got that kind of money. Did he do really well for himself from 2002 through 2007, when he was in the private sector, or was he just that well off before he was elected Treasurer in 2006? Maybe someone with a journalism degree and some spare time should look into that. Google tells me that his primary challenger Hinojosa is a constable in Precinct 5. Other than paying the filing fee, he had no activity to report.

HCDE Trustee

Debra Kerner
RW Bray
Michael Wolfe – No report

Melissa Noriega
Don Sumners

Candidate Raised Spent Cash on hand ========================================== Kerner 0 810 329 Bray 135 0 135 Wolfe Noriega 0 8,690 9,335 Sumners 0 750 0

Neither Michael Wolfe nor Melissa Noriega has filed a report with the County Clerk; Noriega’s report is from the Houston finance reporting system, for her City Council account, which will presumably be transferred at some point. Not a whole lot else to say except that everyone on this list has run for office at least once before, and with the exception of RW Bray has held office at least once. Who knew the HCDE Board of Trustees would be so popular?

113th District Civil Court (D)
311th Family District Court (R)

Steve Kirkland
Lori Gray

Candidate Raised Spent Cash on hand ========================================== Kirkland 55,065 6,806 35,963 Gray 35,000 30,209 4,791

Denise Pratt
Donna Detamore
Alecia Franklin
Anthont Magdaleno
Philip Placzek

Candidate Raised Spent Cash on hand ========================================== Pratt 146,020 78,361 67,659 Detamore 0 2,591 0 Franklin 15,555 13,595 47,317 Magdaleno 7,562 11,519 299 Placzek 6,700 25,012 149

I’m not interested in watching all of the contested judicial primaries, but these two are certainly keeping and eye on. The 113th is shaping up as a rerun of the 215th from 2012, in which the candidate running against Steve Kirkland is being financed by one person. In this case, George Fleming and the Texans for Good Leaders PAC he runs gave all of the money that Lori Gray collected. I don’t know Ms. Gray – she has responded to Texpatriate’s Q&A, but as yet has not sent answers to mine; if she has a campaign webpage or Facebook page I haven’t found it – but I don’t care for lawyers with vendettas like Mr. Fleming.

As for Judge Pratt, she may have a gaggle of challengers this March, but she’s not feeling the financial heat at this time. She’s also doing what she can to stay in the good graces of the establishment, with $10K to Gary Polland’s Conservative Media Properties, LLC for advertising and $10K to the Harris County GOP for various things (I’m not counting the $2500 for the filing fee). We’ll see how much good it does her.

Still more state and county finance reports, plus the city reports, to go through, and the federal reports should start being posted on February 1. January is a very busy month.

Whitmire weighs in on Harris jail population

State Sen. John Whitmire has pushed back on some of the explanations given for the recent uptick in the Harris County jail population, beginning with the claim that it’s due to state jails taking longer than usual to pick up new inmates.

Sen. John Whitmire

Sen. John Whitmire

Noting the state prison system has “7,000 empty beds today,” Whitmire said that the closures have resulted in some temporary transportation issues that will be fixed shortly.

“It is a minimal, minimal issue and will be resolved within I would say in two weeks,” he said. “They are being picked up about four days later than they were a couple months ago on a transportation issue.”

Spokesman Jason Clark said it has taken the criminal justice department about one week more on average to pick up inmates as a result of the closures.

Whitmire also disputes the county’s contention that other large, urban counties are experiencing similar jail population growth, although some, including Bexar, have reported increases.

The uptick in the local jail population, Whitmire said, has more to do with – among other things – a policy implemented this year by the late Harris County District Attorney Mike Anderson to prosecute as felonies so-called “trace cases,” where a person is caught with less than 1/100th of a gram of crack cocaine. Anderson’s predecessor Patricia Lykos had treated those cases as misdemeanors, and claimed it helped to reduce the jail population by 1,000 inmates.

Anderson’s policy “is, no question, one of the factors” in the rising jail population,” Whitmire said, adding that it is an opinion he shares with “some tough Republican judges” like Mike McSpadden.

“We are the only ones that I know of in the urban areas that still prosecute less than 1 gram,” said the longtime state district judge, who supported the Lykos policy.

Anderson’s wife Devon Anderson, who was appointed to replace her husband this month after he died of cancer, told me Monday that she will continue to prosecute trace cases as felonies, providing there is probable cause, because state law says possession of any amount of cocaine is a felony “until the Legislature changes it.”

Anderson said Lykos was “engaging in a legal fiction” in prosecuting the cases as misdemeanors.

“I took an oath just last Thursday to uphold the laws of the state of Texas and that’s what I’m going to do,” she said.

Whitmire said he will urge Anderson to consider reversing her husband’s policy, and also has told her it is “nonsense to be talking about needing to transport inmates to other locations without first doing everything we can locally to have tough and smart jail policies.”

The thing about being the only one doing something is that either you’re right and everyone else is wrong, or everyone else is right and you’re wrong. Given the entirely predictable outcome of the trace case policy as it stands, it’s hard to argue for the former.

The jail population report shows that the number of people being convicted of state jail felonies – including trace cases – who are being ordered to spend time in the county jail instead of going to prison have increased 36 percent during the first six months of this year, versus the first six months of last year.

Whitmire said that is a problem that needs to be fixed, too.

“Why the hell are you gonna let ‘em clog up your Harris County jail” and give them a lesser sentence “when they could get up to two years in a state jail?” he asked.

Anderson said she will examine that statistic in a meeting with prosecutors on Wednesday to see if the office has been “giving a disproportionate number of state jail felons county time.”

“Overpopulation is not under my control, but I’m willing to look at options if I can help with that,” she said. “I want to work with Judge Cosper and I want to work with Sen. Whitmire, and the sheriff of course, if I can.”

It’s true that judges have more to do with the jail population than the DA does, but the trace case policy is something the DA has control over. It’s not productive to complain about what others are or aren’t doing to help with the problem if you yourself aren’t doing all the things you can do to help. A big factor, cited by Whitmire and others, is the lack of personal recognizance bonds. That is certainly something that judges control, but I’d bet that if the DA’s office signaled that they would like for judges to grant more such bonds, it would have an effect. Of course some defendants need to be held before trial, but many don’t, and we’re doing ourselves no favors by ignoring that. I’d like to see both Devon Anderson and Kim Ogg address that fact.

Kim Ogg to run for DA

That didn’t take long.

Kim Ogg

Kim Ogg, a former prosecutor, anti-gang investigator and crime prevention leader, told supporters Saturday that she will run for Harris County district attorney.

In an email, Ogg said she would announce Monday that she would run in the Democratic primary in the spring. Voters will choose a district attorney in November 2014.

Ogg is a former felony prosecutor in the district attorney’s office. She also has led Crime Stoppers of Houston and the city’s anti-gang task force.

She is the first candidate to formally announce a run for the office since the recent death from cancer of District Attorney Mike Anderson, a Republican.

[…]

“My focus will be to fight crime with 21st century tactics, and this will be accomplished through re-prioritization of resources, including forfeiture funds,” Ogg stated in her email. “On my first day in office, I will end the practice of accepting ‘trace drug cases’ where there is no evidence to convict and instead will shift the focus to dismantling organized crime from the top down.”

Ogg will formally announce her candidacy today. I’m familiar with Ogg’s previous work with the city, but I’ve not met her and didn’t receive the email, so this is all I know right now. I’m glad to hear that she would go back to the Lykos policy on trace cases, and her timing on that is propitious given the recent news about the jail filling up again. Assuming the Democrats can avoid another Lloyd Oliver situation, this has the makings of a very interesting race. If nothing else, as things stand we could have a race between two women for District Attorney. How often has that happened in Texas? In any event, I look forward to meeting Kim Ogg in the future and hearing more about her campaign.

We have to worry about jail overcrowding again

Not good.

go_to_jail

After a nearly two-year hiatus, the Harris County jail population is nearing capacity, prompting officials to again consider whether to ship some inmates to out-of-state lockups.

The latest jail population report shows the total number of detainees dropped significantly from 2009 to the end of 2011, when the population finally dipped below the 9,434-inmate capacity. Since January, though, it has increased from 8,581 to 9,340, the highest it has been in nearly two years.

Local officials say there are a variety of factors at play, and that the county is not alone.

Among them: The recent closure of two prisons, which has resulted in the Texas Department of Criminal Justice taking longer to pick up inmates destined for prison. There also have been recent increases in the number of felony case filings, detainees awaiting trial and parole violations, the population report shows. Then there is the historic trend of jail populations swelling in the summer and declining in the fall.

“It’s not one, single thing,” said Caprice Cosper, who heads the county’s Criminal Justice Coordinating Council.

[…]

Harris County, though, also has seen felony filings increase by more than 18 percent in the last two months, as well as a 36-percent increase in the first half of the year in the number of people convicted of felonies but ordered to spend time in the county jail instead of going to prison.

That includes convictions for so-called “trace cases,” where people are arrested for possessing less than 1/100th of a gram of an illegal drug.

The late District Attorney Mike Anderson, who took office in January and died of cancer last month, sparked speculation that the jail population would increase when he decided to prosecute trace cases as felonies. His predecessor, Patricia Lykos, treated the cases as misdemeanors, saying it was difficult to accurately test drug residue and the arrests took officers off the streets for too long.

While the number of state jail felonies being filed, including for trace cases, has not changed dramatically, Cosper said “what has gone up is the way they are being punished.”

>During the first half of last year, 1,670 state jail felons were sent to the county jail. That increased to 2,273 during the first half of this year.

“That’s all trace case policy,” said lawyer Patrick McCann, a former president of the Harris County Criminal Lawyers Association who recently was appointed by Gov. Rick Perry to the Specialty Courts Advisory Council.

The end result of all this is that the county is talking about the need to outsource inmates to Louisiana again. That would be an embarrassment if it were to happen. Caprice Cosper thinks it won’t need to come to that, as TDCJ will start picking up inmates in a more timely manner and some new legislation aimed at diverting convicts from jail will kick in. I hope she’s right, but in the meantime it would be wise if someone were to press our new District Attorney about the trace case policy. As recently as March it was reported that there had been no increase in the jail population due to the resumption of filing trace cases as felonies. We need to take a long, hard look at that, and at the number of felonies being filed overall. We know that the criminal court dockets are overcrowded, and that has an effect on the jail population since it means longer wait times for cases to be resolved. We also know that lack of ability to make bail, plus a lack of personal recognizance bonds issued by the courts adds to the problem as well. The Chronicle reported on that less than two weeks ago, but that connection wasn’t made in this story. Caprice Cosper is right to say that this problem has many aspects. Some of them go back a long way, back to the bad old days of Harris County shipping inmates all over the place. The fact that we haven’t needed to do that lately doesn’t mean we’ve fully addressed the underlying causes that got us into this situation in the first place.

Devon Anderson named interim DA

We’d been waiting for an announcement about this.

Devon Anderson

Devon Anderson, the widow of recently deceased Harris County District Attorney Mike Anderson, was appointed Tuesday to serve out her late husband’s unexpired term.

Gov. Rick Perry announced Tuesday that Anderson, of Bellaire, would take the place of her husband, who died of cancer Aug. 31.

The announcement came after the head of the Harris County Republican Party said Devon Anderson would be the best choice to fill the vacancy at the top of the largest district attorney’s office in Texas.

Here’s that story.

Devon Anderson, the widow of recently deceased Harris County District Attorney Mike Anderson, is the local GOP leadership’s choice to replace her late husband, the head of the party said Monday.

“The person who would be the best to fill Mike’s shoes, and they’re big shoes to fill, would be his wife,” said Jared Woodfill, chairman of the Harris County Republican Party. “I’m hopeful that the governor will appoint her to carry on Mike’s legacy. She’s very, very qualified for the position.”

Woodfill put his sentiments in a letter to Gov. Rick Perry who will appoint someone to fill the unexpired term of Mike Anderson, who lost his battle with cancer Aug. 31.

Woodfill said he is urging Devon Anderson to ask for the appointment, and said she is considering it.

[…]

The news surprised some courthouse insiders who thought Belinda Hill, Anderson’s first assistant, would succeed him. Hill left the bench she had held for 15 years in January to help Mike Anderson run the office.

“Everyone here believes Belinda Hill would be an excellent DA,” said one courthouse Republican who asked not to be identified. “That said, Devon Anderson is highly qualified and will make an excellent DA. It’s poetic to see her fulfill her husband’s legacy, if she decides to do it.”

The process to choose a new district attorney appears to be frozen until Devon Anderson decides, according to the source.

“Either way, the issue needs to be resolved soon,” the source said. “The office needs the certainty of knowing who’s leading them long term.”

I’m certain Devon Anderson is well qualified for the job, and I wish her all the best at it. I’m not surprised that Perry was soliciting input from the local party, and I’m not surprised that Devon Anderson was given deference, but I am a little surprised that Belinda Hill, for whom the Chron advocated shortly after Mike Anderson’s death, wasn’t named early on. I’m not plugged into GOP politics, so I don’t know the backstory. Murray Newman, citing a KTRK report on Woodfill’s letter that added some other names to the mix, provides some detail.

First Assistant Belinda Hill is also a phenomenal candidate. She’s highly respected by both the Defense Bar and the Prosecution. She’s already received the unsolicited endorsement of the Houston Police Officers’ Union. However, it has never been clear whether or not Belinda actually wants the job. Although she had been elected Judge of the 230th District Court for several terms, there is a big difference on the campaign trail when one is running for judge and when one is running for District Attorney. It is an unfortunate fact of life that politics plays a tremendous part in keeping your job as District Attorney. A person may love the job description of being District Attorney but (rightfully and sanely) have no desire to hit the campaign trail for it.

There were other hopefuls for the job, and it’s possible we’ve not heard the last of them. Anderson have to run twice, next year and in 2016, in order to keep the job. If you don’t relish the idea of campaigning, that’s a lot to contemplate, which may be why Belinda Hill was hesitant. While I believe Anderson would be likely to outperform the Republican baseline next year, as would Hill had she been selected, getting elected either year is not a sure thing. It won’t surprise me if someone, perhaps one of the rejected applicants and/or someone from the Pat Lykos office, mounts a primary campaign, and the general election won’t be a walk. Assuming the Democrats don’t Lloyd Oliver themselves again, you can be sure the 2014 race will be high profile. Texpatriate has more.

More tributes for Mike Anderson

Here’s the full Chron story on the death of Harris County DA Mike Anderson.

DA Mike Anderson

DA Mike Anderson

“We all have suffered a terrible loss today of a devoted public servant, husband and father,” first assistant Belinda Hill said in a statement from the office. “His sense of justice, his wisdom and support, his easy laugh, and, most of all, his friendship were his gifts to us.”

In an email to staffers, Hill mourned the loss of “a good man doing great things.”

[…]

Condolences poured in Saturday from Houston officials, including Sheriff Adrian Garcia.

“We are all grateful for his years of integrity-driven and dedicated public service,” Garcia said, adding, “he and his leadership will be missed.”

Houston Police Chief Charles McClelland said he had known Anderson for more than 25 years.

“He has contributed so much to the criminal justice system in Harris County and will be sorely missed,” McClelland said. “The community has lost a true champion for justice.”

[…]

Retired district attorney Johnny Holmes, described Anderson as a conscientious, hard-working and competent prosecutor.

“I had faith in his judgment and that’s why I came out so strong in support of his candidacy,” said Holmes.

The loss of Anderson is a shock, and it will take time to recover from it. The political process will go on, however, and with the brouhaha in Travis County over Rosemary Lehmberg, we know what the process to replace a District Attorney is.

By state law, the vacancy means Hill is now in charge of the office, said Rob Kepple, executive director president of the Texas District & County Attorneys Association.

She will run the office until Gov. Rick Perry appoints a replacement. Because Anderson was just beginning his four-year term, the post will be on the ballot in the next general election in November 2014, Kepple said. It will be up for a vote again in 2016, when it was normally scheduled.

It’s too early, and too insensitive, to speculate about anything at this point. This will be a high profile race in Harris County next year, but there will be plenty of time to talk about it later. Texpatriate has more.

RIP, Mike Anderson

Very sad.

DA Mike Anderson

DA Mike Anderson

Harris County District Attorney Mike Anderson, who announced in May that he had cancer, died Friday, sources said.

The Texas District & County Attorneys Association on Saturday posted the news on Twitter: “We have just learned that Harris Co DA Mike Anderson passed away. Our prayers are with his wife & kids & the entire Harris Co DA family.”

Anderson, 57, took office Jan. 1, following his election in November.

He announced his illness by releasing an email which did not include details about the type of cancer or when it was diagnosed.

[…]

Anderson spent 12 years as a felony criminal court judge, following his 16 years as a prosecutor.

His wife, Devon Anderson, is a criminal defense attorney and also a former state district judge. They have two children.

Anderson revealed that he had cancer in May, but did not give any details about it. As you know, I interviewed Anderson last year during his primary against then-DA Pat Lykos. I wound up voting for him in November after the Dems screwed up their DA primary race, and while I had serious disagreements with him about policy, I was comfortable that the office would be in capable hands. I found him to be thoughtful and engaging during the interview, and I enjoyed chatting with him for a few minutes after we concluded the on-the-record conversation. We talked about our families; he told me about his baseball-playing sons, and it was easy to see how much he enjoyed that part of his life. I am stunned and saddened by this news. My deep condolences to his family, friends, and coworkers. Rest in peace, Mike Anderson.

UPDATE: Texpatriate and Murray Newman share their thoughts.

UPDATE: BOR has more.

DUI and blood testing

Not sure what I think about this.

A decision by the Harris County District Attorney’s Office to demand blood tests for every drunken-driving suspect who refuses breath tests has drawn an unusual opponent: Houston police officers.

“We’re just very concerned it’s going to take officers off the street for an extended amount of time,” said Ray Hunt, president of the Houston Police Officers’ Union.

Hunt said that, unlike officers specially trained to find and arrest drunken drivers, most officers are not used to navigating the system, which includes swearing out a warrant, waiting for a judge to sign it, then finding someone at a hospital to draw the suspect’s blood. A single arrest could take an entire shift, he said.

“They’re not going to be as savvy on how to do these warrants, so it’s going to take them six to eight hours, and that means the officer is off the street for that entire time,” Hunt said. “It’s a major issue.”

Houston defense lawyers echoed that concern.

“Spending so much time, energy and money to prosecute a Class A or Class B misdemeanor is ridiculous,” said Todd Dupont, president of the Harris County Criminal Lawyer’s Association.

Prosecutors say the change, which took effect in April, will save time and money in the long run because drunken-driving cases are more likely to be resolved via plea agreement than a trial.

[…]

In San Antonio, police have been mandating blood testing for all suspected drunken-driving cases for nearly two years. The key, Bexar County prosecutors said, was a gradual implementation and money earmarked for computers, facilities and a nursing staff.

On the one hand, doing blood tests as a matter of routine would lead to much more certainty of outcome, because blood testing is more accurate than the notoriously imprecise Breathalyzers, and not subjective or unproven like field sobriety tests or horizontal gaze nystagmus. The experience in Bexar County appears to be positive, though we didn’t get a defense bar perspective on that. On the other hand, it’s more expensive up front and far more invasive. It is a lot of resources to put into combating a misdemeanor crime, and it doesn’t really do anything about the fact that a relatively small number of repeat offenders are responsible for a disproportionate amount of drunk driving incidents and mayhem. If it means that we’d be getting rid of the less reliable methods of evidence gathering for DUI arrests then there’s value to this, but I’d like to know more before I make up my mind.

UPDATE: Byron Schirmbeck had some questions about this new development as well, and he put them in writing and sent them to the DA’s office. He got this response, which he graciously shared with me for publication here. Worth your time to read.

Mike Anderson reveals that he has cancer

Very sorry to hear this.

DA Mike Anderson

DA Mike Anderson

Mike Anderson, Harris County’s district attorney, informed his staff Thursday that he has been diagnosed with cancer.

“I have great doctors and am undergoing treatment. I fully intend to beat this,” said a brief email sent Thursday and signed “Mike.”

“Many people have asked how they can help me. I would ask that you keep me and my family in your prayers and continue to do the great work that you’re doing to make this the best DA’s office in these United States.”

Sara Marie Kinney, a spokeswoman for the office, released the email and said no other details were available, including the type of cancer and how long the elected district attorney has had it.

I wish DA Anderson all the best for a swift and full recovery. His Facebook page is here if you want to post a get-well message. KTRK has more.

Going after human traffickers

This is a great story about Ann Johnson, the Democratic candidate in HD134 last year, who is now back with the District Attorney’s office fighting against pimps and traffickers who prey on kids.

Ann Johnson

Johnson, a 39-year-old juvenile law attorney, is fluent in the language of the street, rattling off facts about Houston’s tracks, where pimps take prostitutes to pick up “tricks” or dates with johns.

She talks about “gorilla pimps” who control prostitutes with violence and “mack pimps” who use flattery, safety and the promise of love to lure prostitutes.

After cementing the relationship with sex, the mack asks the prostitute to help the “family” by selling sex.

That fluency means she can talk to minors about what they’re going through. And she can also explain that world to a jury.

“It’s such a foreign world, a hidden world and Ann knows about it,” said Jen Falk, a prosecutor who helped put Kentish in prison. “She brings such a unique background, especially in talking to victims who typically just get lost in the system.”

[…]

Although domestic child prostitution is not typically considered human trafficking, prosecuting those cases is a top priority and part of a three-pronged attack for newly elected District Attorney Mike Anderson.

“Houston is one of the top five cities in the world for human trafficking,” Anderson said. “We’re going to be busting the people who see this as their business and the mid-management, which are the pimps, and the johns as well.”

Anderson said he expects to see more cases filed against Houston’s cantinas and massage parlors where men and women are brought to Houston from all over the world to work as sex slaves.

“Just as sad, there are runaways here that are recruited with promises of a job or safety and they’re made to be prostitutes,” Anderson said.

After he decided to make trafficking one of his administration’s top priorities, Anderson set out to recruit Johnson. He hired her at a typical chief’s salary of $110,000 a year and said she may soon be creating an entire new trafficking division at the office.

“She’s extremely well respected in that area, she’s passionate about it, and she’s very good at what she does,” Anderson said. “She has a reputation at the courthouse.”

She is also well-known after an unsuccessful campaign last year to unseat incumbent Republican Sarah Davis for House District 134. A Democrat, Johnson lost the race but was widely supported by courthouse insiders, including Chris Tritico, president of the Harris County Criminal Lawyers Association.

“Every dealing I’ve had with her, when she was a prosecutor before and as a private practitioner has been very positive,” Tritico said. “I think the world of her.”

I had the pleasure of getting to know Ann during her candidacy in HD134, and she is indeed a fine person. I have no doubt that she will do a lot of good in this role. Kudos to Mike Anderson for hiring her, and best of luck to her and everyone in her division for the work they do.

No increase in jail population as yet

Good to hear.

DA Mike Anderson

When Harris County District Attorney Mike Anderson toppled incumbent Pat Lykos in last year’s Republican primary, some county budget hawks got fidgety.

The campaign’s central issue, after all, was Anderson’s opposition to a Lykos policy that treated cases with drug residue of less than 1/100th of a gram as misdemeanors. Lykos was ignoring the law, said Anderson, who has announced he will prosecute these “trace cases” as felonies.

That trail, of course, leads to the county jail, which at $178 million is the single largest line item in the county’s $1.5 billion annual budget. The sheriff’s office has come in under budget two years in a row, thanks in large part to a drop in the jail population, which, at 8,711 as of Thursday, is about 29 percent below its recent peak of 12,188 in September 2008.

Commissioner Jack Cagle and other county officials admit to concern about whether the policy change will drive up the jail population, but all say they view Anderson as a reasonable guy who will strike a balance. In Anderson’s first three months in office, there is no evidence of an increase in the jail numbers, according to data from the sheriff’s department.

[…]

If the police make an arrest and a lab confirms a positive for illegal drugs, Anderson said, the law requires him to prosecute. However, Anderson said, his time as a drug court judge taught him that treatment, not jail time, often is the best route.

“I have seen people that were dealing with addiction for 10 or 15 years and just lived in horrible conditions because of the addiction. Through treatment, they’re able to get their lives back and become productive members of society,” he said. “Being creative on the punishment end of things is not against the law. We can find some way to actually deal with treatment in these areas rather than incarceration, and that’s a lot less expensive.”

“It hasn’t been very long ago that we finally decided that just because you’re being smart on crime does not mean you’re being weak on crime,” he continued. “We need to use the best tools that we have, and treatment is a very good tool.”

I’ve expressed my concerns about this before. Anderson addressed the issue with me in the interview I did with him before last year’s primary, and I’m glad to see that so far at least he has not caused any recurrence of the overpopulation problem as a result of this shift in policy. It’s early days, of course, but so far so good. I hope this trend continues, and I hope that if it doesn’t everyone remembers where the responsibility for it lies.

Trace cases to be prosecuted as felonies again

So says our new DA.

DA Mike Anderson

Newly elected Harris County District Attorney Mike Anderson said Thursday he will prosecute as felonies drug cases that involve trace amounts of crack cocaine, reversing his predecessor’s stand on the so-called “trace cases.”

“If there is enough evidence to test in a lab, then we’ll take the charges,” Anderson said.

Anderson campaigned on the issue last year after then District Attorney Pat Lykos implemented a policy that treated cases with drug residue of less than 1/100th of a gram as a misdemeanor.

Lykos said her policy ensured that crimes prosecuted as state jail felonies had enough of the illegal drug so an independent lab could test it on behalf of the defendant.

She said it was more fair and noted that it reduced the population in the county’s overcrowded jail system.

[…]

The change was applauded by law enforcement and criticized by one court official on Thursday.

“They are felons, the state has said they are felons and they need to be prosecuted as such,” said Ray Hunt, president of the Houston Police Officers’ Union. “These persons, these crackheads are the people who are breaking in to motor vehicles to steal your laptop off the front seat, to grab the purse that’s visible, all those things they can sell for $25 to go buy another crack rock.”

He noted that state law is clear and said Lykos ignored it with her policy.

“If the legislators want to make this not a felony, then they can,” Hunt said. “But to say this is a felony and then have a district attorney say they’re not going to enforce state law is not the way elected officials are supposed to act.”

Harris County’s most senior criminal felony judge, Michael McSpadden, disagreed with Anderson’s change.

“I wish he would use his discretion to relieve the great number of cases that I don’t think are proper in felony court,” McSpadden said. “But I understand that the correct way is to address the Legislature.”

As the story notes, Anderson did make an issue of this, so having duly won the nomination and general election we should not be surprised that he is proceeding to do what he said he would do. It would have been nice to have had a debate about this for the general election, but after we Democrats Olivered ourselves, that wasn’t in the cards. Anderson says later in the story that he hopes many of these cases will be resolved by probation, so as not to overcrowd the jails. I hope so, too.

As you know, I agreed with Lykos’ policy on trace cases. You do get into some dicey issues when law enforcement officials start talking about what laws they will and will not enforce – witness all the idiot Sheriffs out there now saying they won’t enforce any new gun laws that they have decided are unconstitutional, because it’s in the Constitution that local law enforcement officials get to make that determination – but DAs do routinely exercise their discretion about what cases to pursue and what cases to move down the priority list. It is true that this is a job for the Legislature to fix, but until they get their act together – and in a 140-day session, they too have to prioritize – there’s a lot of people being needlessly jailed, labeled as felons, and not getting the help they need. This does not serve the public interest, and it puts DAs in this position. I thought Lykos took the right approach, but the point is that she shouldn’t have had to make that decision.

Mental health court coup

Interesting.

Judge Jan Krocker

Citing problems with the administration of Harris County’s mental health court, a board of judges has ousted the court’s founder and presiding judge, Jan Krocker, officials confirmed Friday.

“There were a lot of valid complaints about Judge Krocker’s administration of the court, and she didn’t like the idea of oversight,” said Michael McSpadden, Houston’s most senior felony court judge. “We are all behind a mental health court. We just want it run the correct way.”

Krocker will continue to preside over the 184th State District Court, a bench to which she was first elected in 1994, but two other judges, David Mendoza and Brock Thomas, will oversee the mental health court.

Krocker said the move was the natural evolution of the program.

“Once we knew the court would be funded for another year, I had hoped to reduce my involvement because it had become so time-consuming,” she said in an emailed statement. “I would have been glad to transition out and turn it over to Judge Mendoza and Judge Thomas. It is too bad this wasn’t handled differently.”

What’s interesting about this is that the mental health court has only been in existence since October. That’s an awfully short period of time for everyone to lose patience with the person who brought this thing to reality. Or maybe there was something else going on.

The abrupt removal may have been spurred by Krocker releasing a statement in December accusing another judge and newly elected District Attorney Mike Anderson of trying to kill funding for the court.

Last year, Krocker said then-District Attorney Pat Lykos had promised $500,000 for the court to continue. When that promise dried up days before Lykos left office, Krocker blamed Anderson and state District Judge Belinda Hill.

Anderson and Hill, who was the chief administrative judge over the 22 district judges and is now Anderson’s first assistant, have both publicly supported the mental health court.

The problem was not the court, McSpadden said. It was Krocker.

“She wasn’t following the mental health advice of the people we hire, the doctors we hired,” McSpadden said. “There were a lot of complaints, from inside and outside the court.”

As a non-lawyer I have no insight into this, so let me throw this out to those of you who who may have some insight for your comments. What do you think?

Anderson’s DWI proposal

You may recall that former Harris County DA Pat Lykos’ DIVERT program for DWI offenders was a major point of contention in the GOP primary fight that was eventually won by new DA Mike Anderson. (If you don’t recall, see here and here for some background, or review the interviews I did with Lykos and Anderson.) Among other things, Anderson claimed that the DIVERT program was a subversion of existing state law, as DIVERT was intended to serve as a form of deferred adjudication for DWI offenses, when deferred adjudication didn’t exist as an option for DWI. Anderson is now backing a legislative proposal to create a deferred adjudication option for DWI offenses.

DA Mike Anderson

Anderson said he expects his office to lobby for deferred adjudication for a first-time DWI conviction, which may seem like a policy reversal to those who followed last year’s district attorney race.

Deferred adjudication is a form of probation that allows suspects who successfully complete probation to go on with their lives without a criminal conviction on their record.

During the Republican primary campaign, Anderson attacked incumbent Pat Lykos for her DIVERT program, which did the same thing by allowing for probation for a first driving-while-intoxicated offense.

“It’s a really good alternative to DIVERT,” Anderson said of his position. “In DIVERT, the person was never put on deferred adjudication. It was just ‘invented’ at the District Attorney’s Office.”

During the campaign, Anderson criticized Lykos by saying she changed the legislative intent behind banning deferred adjudication for DWI convictions.

Anderson’s proposed change would allow first-time convictions for DWI to be erased from a defendant’s record, but, unlike DIVERT, prosecutors would be able to tell juries about the DWI if there are subsequent intoxication-related offenses.

The proposed change is modeled on domestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges.

I’m not a lawyer, but Mark Bennett is, and he has a quarrel with the Chron’s characterization of “deferred adjudication”.

“Without a criminal conviction on their record” is technically true, but misleading. Lawyers who describe deferred adjudication that way to their clients and judges who do so to defendants are doing them a disservice. A deferred-adjudication probation can, in some cases and at the trial court’s discretion, be sealed from public view with an order of nondisclosure (read the statute), but unless and until the record is sealed there remains a public record of the charge, the guilty plea, and the probation. Employers and landlords and others who use background checks treat deferred-adjudication probation the same as a conviction. When a defendant is told, “you won’t have a criminal conviction on your record” he hears, “you won’t have a record.”

“[E]rased from a defendant’s record” is untrue. At best a deferred-adjudication probation for DWI will, at its conclusion, be eligible for nondisclosure at the trial court’s discretion.

[…]

“[D]omestic violence laws, which can be expunged for public records, but still exist in court files and can be used to upgrade future domestic violence charges” is (even apart from the wandering subject) thoroughly wrong.

A deferred-adjudication probation for anything greater than a class-C (fine-only) misdemeanor cannot be expunged. An acquitted or dismissed case can be expunged. An expunged case cannot be used to upgrade future charges or for any other purpose.

A deferred-adjudication probation for a more serious misdemeanor or a felony may be subject to nondisclosure (not expunction), but family-violence cases are explicitly excluded. So if the change is modeled on domestic-violence laws, then more than likely deferred-adjudication probation for DWI will be coupled with an amendment to the nondisclosure law excluding DWI cases from the nondisclosure statute (so that someone with a DWI deferred will have a public record of it forever).

The Chron doesn’t say what the bill number is for Anderson’s proposal or who the author is (assuming a bill has been filed yet; it is certainly possible this is still in the proposal stages), so this is all we know about it. I’d sure like to see Mark’s concerns be addressed before any such legislation gets passed.

Precinct analysis: A closer look at the Latino districts

Here’s a more in-depth look at the Latino districts in Harris County. I’m particularly interested in the question of how President Obama did in comparison to the other Dems on the ballot, since as we know he lagged behind them in 2008, but we’ll see what else the data tells us.

CD29 Votes Pct ======================== Green 85,920 73.40 Garcia 81,353 73.29 Ryan 76,188 69.01 Trautman 75,904 68.97 Obama 75,464 66.60 Bennett 74,691 68.48 Petty 74,275 69.19 Hampton 73,917 67.97 Oliver 72,971 66.19 Henry 72,581 67.46 Sadler 71,382 64.73 08Obama 70,286 62.20 08Noriega 75,881 68.30 08Houston 73,493 67.70 SD06 Votes Pct ======================== Garcia 95,602 73.28 Gallegos 93,136 70.94 Ryan 90,047 69.29 Trautman 89,853 69.31 Obama 89,584 67.14 Bennett 88,289 68.78 Petty 87,920 69.55 Hampton 87,456 68.37 Oliver 86,390 66.56 Henry 85,891 67.84 Sadler 84,671 65.26 08Obama 85,445 63.50 08Noriega 91,173 68.80 08Houston 88,565 68.30 HD140 Votes Pct ======================== Garcia 17,674 76.57 Walle 18,297 75.67 Ryan 16,719 70.92 Trautman 16,653 72.89 Obama 16,548 70.74 Bennett 16,481 72.57 Petty 16,341 73.07 Hampton 16,225 71.63 Oliver 16,184 70.75 Henry 16,131 71.96 Sadler 15,668 68.64 08Obama 15,399 66.20 08Noriega 16,209 71.00 08Houston 15,967 71.00 HD143 Votes Pct ======================== Garcia 22,258 74.89 Luna 21,844 72.94 Ryan 20,902 70.92 Trautman 20,731 70.57 Obama 20,597 67.82 Bennett 20,580 70.51 Petty 20,377 70.97 Hampton 20,335 69.97 Oliver 20,077 68.19 Henry 19,971 69.18 Sadler 19,597 66.40 08Obama 20,070 64.10 08Noriega 21,525 70.10 08Houston 21,130 70.20 HD144 Votes Pct ======================== Garcia 13,555 57.96 Ryan 12,668 53.96 Trautman 12,663 54.18 Perez 12,425 53.35 Bennett 12,382 53.63 Petty 12,328 54.27 Obama 12,281 51.47 Hampton 12,226 53.24 Oliver 11,966 51.07 Henry 11,919 52.49 Sadler 11,761 50.50 08Obama 11,983 48.00 08Noriega 13,197 53.60 08Houston 13,129 54.50 HD145 Votes Pct ======================== Alvarado 20,829 68.86 Garcia 19,180 67.67 Ryan 17,860 63.04 Trautman 17,886 63.30 Petty 17,254 63.03 Bennett 17,252 61.90 Hampton 17,154 61.85 Obama 17,890 61.13 Henry 16,624 60.63 Oliver 16,778 59.22 Sadler 16,655 58.79 08Obama 16,749 57.10 08Noriega 18,427 63.70 08Houston 17,315 61.70 HD148 Votes Pct ======================== Farrar 25,921 64.56 Garcia 23,776 63.87 Ryan 22,413 59.91 Trautman 22,199 59.77 Petty 21,013 58.89 Hampton 21,219 58.49 Obama 22,393 57.92 Bennett 21,061 57.80 Sadler 21,210 56.51 Henry 19,888 55.55 Oliver 19,848 53.34 08Obama 22,338 57.50 08Noriega 22,949 60.10 08Houston 21,887 59.20

My thoughts:

– First, a point of clarification: Reps. Armando Walle and Carol Alvarado were unopposed, while Rep. Jessica Farrar had only a Green Party opponent. In those cases, I used their percentage of the total vote. Also the 2008 vote percentages on the Texas Legislative Council site are only given to one decimal place, so I added the extra zero at the end to make everything line up.

– In 2008, there was a noticeable difference between the performance of Barack Obama and the rest of the Democratic ticket in Latino districts. Obama underperformed the Democratic average by several points, as you can see from the above totals. This year, in addition to the overall improvement that I’ve noted before, President Obama’s performance is more or less in line with his overall standing at the countywide level. Generally speaking, those who did better than he did overall also did better in these districts. Obama’s vote percentage is still a notch lower in general, but this is mostly a function of undervoting or third-party voting downballot. What all this suggests to me is that whatever issues Obama had with Latino voters in 2008, he did not have them in 2012. This is consistent with everything else we’d seen and been told up till now, but it’s still nice to have hard numbers to back it up.

– Paul Sadler’s issues, on the other hand, come into sharper relief here. We know that Ted Cruz got some crossover votes in Latino areas, though the total number of such votes was fairly small. I continue to believe that this has as much to do with Sadler’s lack of resources as anything, but if you want an even more in-depth look at the question, go read Greg.

It’s still Gene Green’s world. That’s all that needs to be said about that.

– I have to think that Mike Anderson left some votes on the table here. Some targeted mailers into these areas that highlighted some of Lloyd Oliver’s, ah, eccentricities, would likely have paid dividends. Didn’t matter in the end, but if it had you’d have to look at this as a missed opportunity.

Precinct analysis: City and county

If you know a little something about Excel (or in my case, OpenOffice Calc, which has the same basic functionality), it’s fairly straightforward to calculate the vote totals and percentages for various candidates in various county, state, or federal districts. These districts are well-defined, and by that I mean they contain a certain number of precincts in their entirity, and two districts of the same classification (i.e., two State Rep districts) have no overlap between them. (That actually isn’t exactly right, but it’s close enough to not worry about.) It’s not the same for determining the vote in the city of Houston versus the rest of Harris County. City boundaries do not conform to precinct boundaries. There are numerous precincts that are part Houston and part not-Houston. When I first tried to do this, after the 2008 election, I wound up counting a number of non-Houston votes as being from the city, which had the effect of underestimating the Democratic percentage by two or three points. After getting some feedback on this, I refined my methodology and got a result that I thought was more accurate. It’s definitely an estimate, but I’m confident it’s in the ballpark.

This year, I have the benefit of the city of Houston bonds and charter amendments on the ballot, which identify all of the precincts that contain city of Houston voters. Obviously, I don’t want to count all of the votes in each of those precincts as being city of Houston, for the reasons given above. You can look at the individual precincts and see a handful of bond votes but hundreds or thousands of Presidential votes, so you know you can’t count the whole precincts. What I wound up doing was counting the votes in any precinct that had at least ten Yes votes for Proposition B, the parks bond that was the biggest winner among the bonds, as Houston precincts. It’s not exact, but it’s close enough. Here’s what I got from doing that:

Candidate Votes R Votes Pct ===================================== Garcia 381,103 211,886 64.3% Obama 371,755 242,953 60.7% Ryan 370,181 225,952 62.1% Trautman 367,587 226,185 61.9% Hampton 359,110 227,134 61.2% Sadler 356,630 242,658 59.5% Petty 356,110 225,061 61.3% Bennett 353,317 234,256 60.5% Henry 342,986 240,103 58.8% Oliver 342,701 252,168 57.6%

By this calculation, which remember is as much approximation as anything else, Obama lost 0.3 percentage points from 2008, while Adrian Garcia lost about a point and a half. This is consistent with the amount they lost overall from 2008, so again I feel pretty confident. You can see that Garcia, Vince Ryan, and Diane Trautman all attracted some Republican support, while Mike Anderson, Christi Craddick, and Mike Sullivan all drew Democratic support.

Here’s the flipside, non-Houston Harris County, which is simply the totals above subtracted from the overalls:

Candidate Votes R Votes Pct ===================================== Garcia 230,860 310,551 42.6% Ryan 215,781 326,609 39.8% Trautman 214,896 326,012 39.7% Obama 213,696 341,913 38.5% Petty 208,702 321,146 39.4% Hampton 207,229 326,415 38.1% Bennett 206,689 328,248 38.6% Sadler 206,325 338,539 37.9% Oliver 199,443 343,351 36.7% Henry 198,206 334,588 37.2%

Pretty much what you’d expect based on the first set of results, with the exception of Paul Sadler sliding down a few spots, for which I’d blame – again – his lack of resources. I read these amazing stories about the turnout effort in Ohio, and I ask myself again what that might look like if it were ever tried here. I don’t really have anything more to add to this, so I’ll leave it here and we’ll continue with more analysis later.

What I’ll be looking for tonight

Just a reminder that I’ll be on KPFT tonight starting at 7 PM to talk about the elections. Here’s a preview of the things I’ll be looking for:

1. SD10 – Sen. Wendy Davis vs Mark Shelton: Easily the most important race on the ballot in Texas. Davis has been a progressive champion and a pain in Dan Patrick’s rear end, and will make for a strong statewide candidate when she’s ready. She also ensures that the Dems maintain enough votes in the Senate to invoke the two-thirds rule until whenever Rick Perry calls the special election to succeed the late Sen. Mario Gallegos. I am heartened that Robert Miller thinks Davis is leading, though he subsequently amended that, but I won’t rest easy until I see that lead on the Secretary of State’s election results webpage.

2. Legislative races – While Dems start out with only 48 seats in the Lege, they will automatically pick up three today – HDs 35, 40, and 101 – because there are no Republicans running in them. Beyond that, the over/under line for Dems is 55 seats total. Three in particular to watch: HD23, in which Rep. Craig Eiland is one of the only, if not the only, threatened Democratic incumbents; HD134, in which Ann Johnson’s challenge to freshman Rep. Sarah Davis will be a good test of how well a message attacking the Rs for cutting $5.4 billion from public education will work; and HD136, the open seat in Williamson County, which will be a test of whether 2008 was a fluke or a trend for Democrats in places like that.

3. Adrian Garcia and Mike Anderson – Everyone expects both candidates to win, as both have become poster children for not voting a straight ticket this year. As such, they will both likely represent the high-water mark for each party this year, as Garcia and Ed Emmett were in 2008. I’ll be paying particular attention to how they did in various legislative and other districts once the precinct data is out, because that may provide an early roadmap for future electoral targets.

4. Fort Bend County – Fort Bend came very close to going Democratic in 2008. President Obama received 48.49% of the vote there, and no Republican won the county by as much as 10,000 votes out of 200,000 cast. Is this the year Democrats break through? Also worth keeping an eye on is freshman County Commissioner Richard Morrison in his race against double voter Bruce Fleming.

5. CCA – Hampton vs Keller – I think we’re all familiar with this one by now. Whether Hampton has a chance to win depends largely, though not entirely, on how well Obama does in Texas. The presence of a Libertarian candidate in this race means that Hampton can win with less than 50% of the vote. Most of the statewide judicial races in 2008 had Libertarians in them, and they got about 3% of the vote on average. I suspect the ceiling for that may be higher in this case, as some Republicans may prefer to not vote for Keller but not vote for a Dem, either. I will not be surprised if 48% is enough to win. If Obama can improve on 2008, even a little, it makes it that much easier for Hampton to get over the hump. If not, we may be stuck with Keller for another six years or until she finally has the grace to resign.

6. 1st and 14th Courts of Appeals – Jim Sharp broke through for Democrats in 2008, and there’s a nearly full slate of them running for seats on these courts, whose jurisdictions cover multiple counties, this year. As was the case in 2008, a sufficiently strong showing in Harris County may be enough to make it across the finish line, though if Fort Bend is blue as well, that would be a big help. This is where future Supreme Court and Court of Criminal Appeals candidates can emerge.

7. Bonds, Metro, and SA Pre-K – I expect the Houston bonds to pass. Keep an eye on the charter amendments, since if they pass as well there can be no further charter amendments on the ballot till May of 2015. I think the Metro referendum will pass, but I would not bet my own money on it. The San Antonio Pre-K initiative is expected to be close. Given the recent love affair in the national media and from the national party for Mayor Julian Castro, a loss here will undoubtedly be portrayed as a setback for him.

I think that’s plenty to think about. What races are you watching?

Obama leads in poll of Harris County

More polling goodness for you.

The poll conducted for KHOU 11 News and KUHF Houston Public Radio indicates Obama leads Romney in Harris County, but not by much. That gives some indication how election night might go for politicians running for offices that are down the ballot.

The poll shows the president leading in Harris County with the support of 46 percent of surveyed voters, compared to Romney’s 42 percent. Libertarian Gary Johnson cracked the survey with 2 percent.

In the U.S. Senate race, Democrat Paul Sadler’s 44 percent leads Republican Ted Cruz with 42 percent in Harris County. With a 3.5 percent margin of error, that’s a statistical dead heat in the largest county in Texas.

[…]

Republican crossover voters are helping push Democratic Sheriff Adrian Garcia to 51 percent in this survey, compared to Republican challenger Louis Guthrie’s 32 percent. Another 13 percent were undecided.

On the other hand, many Democrats told pollsters they’re voting for Republican district attorney candidate Mike Anderson, who’s polling at 41 percent. Nonetheless, Democrat Lloyd Oliver is close behind with 35 percent. Another 19 percent are undecided. That number is especially striking because Democratic Party leaders were so embarrassed by Oliver’s candidacy they tried to remove him from the ballot.

“What we’re seeing is a much more significant ticket-splitting among Republicans than Democrats,” said Bob Stein, the Rice University political scientist and KHOU analyst who supervised the poll. “I don’t know if that’s because they’re more bipartisan, or they simply are more capable and more likely to make that choice, which is not easy to do on an e-slate ballot.”

Or maybe Sheriff Garcia has done a better job of making the case for himself than Mike Anderson has. Prof. Stein was kind enough to share the topline data and the poll questions with responses, and I’ll note that there were considerably more “don’t know” answers in the DA race than in the Sheriff’s. Perhaps that’s the difference.

You can also find basic poll data here, though for some odd reason there’s no breakdown of the Senate race on that page. There are also results for the five City of Houston bond proposals, the HCC and HISD bond proposals, all of which have majority support and in some cases large majorities. There’s no result for the Metro referendum, but I infer from the teaser at the end of this KUHF story on the poll that that result may be released separately. Released by KHOU and KUHF, anyway – if you go back and look at those docs I linked above, you’ll see the Metro referendum result from this poll. It has plurality support, but that makes it the only one not to have a majority. Make of that what you will.

For what it’s worth, there was a Zogby poll of the Presidential race in Harris County in 2008, which showed a 7-point lead for Obama over McCain. Oddly, as I look back at it, the story never mentioned the actual numbers, just the margin; the links for the poll data and crosstabs are now broken, so I can’t check them. (The story did say that Rick Noriega had a 47-40 lead over John Cornyn for Senate in Harris County.) A separate poll of county and judicial races showed similar results, though it did correctly call Ed Emmett the leader in the County Judge race. Democrats did win most of those races, and both Obama and Noriega carried Harris County, though by smaller margins than the poll predicted. As I noted at the time, Zogby (the pollster) showed Dems with an eight-point advantage in party ID, which largely explained the poll numbers. This poll shows roughly the same partisan ID numbers, which could mean some Democratic slippage from 2008, or could just be random. As Greg says, what we very likely have here is a swing county where GOTV will make the difference. We’ll know soon enough.

Ticket splitters

For better or worse, we live in a polarized world. Often, knowing a candidate’s political party tells you most of what you need to know in a general election. But definitely not always, and this year in particular there are plenty of examples of candidates who aren’t worthy of the support of their partisan brethren (and sistren, as Molly Ivins used to say) as well as a few who for a variety of reasons are able to transcend political barriers. I feel like this year I’ve seen more mixed-company yard signs than I have in years past. Here are a few examples:

My guess is that this homeowner is a Democrat who is also supporting incumbent District Civil Court Judge Tad Halbach, who has a reputation for being one of the better inhabitants of the judiciary.

My initial suspicion was that this was a Republican who prefers Vince Ryan and Adrian Garcia for Harris County. I drove by this location yesterday and there was another sign touting a GOP judicial candidate whose name I have forgotten, so that makes me a little more certain in that assumption.

This one’s a little hard to see – it was late afternoon, I was facing west, and any closer would have put me directly in the sunlight. Anyway, the red sign is for Vince Ryan, and the other one is for GOP judicial candidate Elizabeth Ray.

Greg sent me that one. Probably a Republican crossing over for Gene Wu if I had to guess, but Greg could say for sure.

Another one that could go either way, but as that house in the background is actually a law office, I suspect the sign-placer just likes incumbent judges.

I feel quite confident saying that the person who put out these signs is a Republican, crossing over to vote for Ann Johnson and the HISD bonds. (As well he or she should.) The Halloween decoration nearby is a nice touch.

So there you have it. I don’t have any broad point to make, I just noticed these signs around and thought it would be fun putting something together on them. I have a Flickr set for these pics, so if you find any more examples, send them to me via email or post them on the Off The Kuff Facebook page and I’ll add them in.

30 Day finance reports, Harris County candidates

Here’s a look at the 30 day campaign finance reports for Harris County candidates. All reports can be found by going to the Harris County Clerk campaign finance reports page.

Candidate Office Raised Spent Loans Cash ========================================================== Garcia Sheriff 192,670 120,957 0 388,197 Guthrie Sheriff 158,700 48,633 171,000 98,152 Alessi Sheriff 1,019 2,007 700 1,719 Oliver DA 3,125 6,213 0 3,125 Anderson DA 136,555 41,685 0 128,241 Ryan County Atty 24,775 79,799 0 88,714 Talton County Atty 24,922 3,952 39,250 15,286 Bennett HCTA 6,630 7,220 1,690 3,217 Sullivan HCTA 20,950 23,115 10,000 2,396 Trautman HCDE 1,685 2,704 0 8,090 Wolfe HCDE 100 750 0 109 EF Lee Com Ct 16,543 49,689 0 3,328,226 Maricle Com Ct 1,765 9,811 2,500 1,502 Radack Com Ct 39,750 28,403 0 808,390 McPherson Com Ct 0 0 0 0 Cagle Com Ct 197,106 129,312 0 203,657 Hammerle Com Ct 225 883 1,176 9 Rosen Constable 51,531 55,130 5,000 16,447 Danna Constable 18,800 15,852 0 2,568 Diaz Constable 31,750 34,163 10,815 31,837 McDonald Constable 1,645 2,151 0 0 Jones Constable 6,876 17,314 0 26,221 Cruzan Constable 31,970 7,506 552 20,720 E Lee HCDE 0 1,550 0 0 Pack HCDE 610 550 0 1,625 Mintz HCDE 0 0 0 0 Smith HCDE 500 0 0 530

My thoughts:

– You don’t need me to point out that the Sheriff’s race is the one where the money is. No other race is particularly close; one wonders how the DA race would have played out with a different result in the Democratic primary. Sheriff Garcia has 10 donors that gave at least $5,000 each – nine who gave exactly that amount, and Don McGill, who donated a whopping $50,000. Louis Guthrie has only six $5K+ donors, but each of them gave at least $10K apiece. It’s not clear to me why Guthrie has not spent more.

– Speaking of not spending more, I’m not sure why Mike Anderson is sitting on his cash like that, though I suppose he could be planning to unload it this month. I certainly expect Anderson to win, but given how he says he’d deal with losing, I’d not be taking any chances. A couple of mailers to Democratic voters reminding them of Lloyd Oliver’s idiocy and the fact that even the HCDP didn’t want him on the ticket might not be a bad idea.

– Again on the spending theme, the disparity between Vince Ryan and Robert Talton is notable. Maybe there isn’t much that can be done at the County Attorney level to overcome the predominant partisan tendencies, but we won’t know from this race.

– Wasn’t there more money in the Tax Assessor’s race last time? Checking the July and 30 day reports for Paul Bettencourt and Diane Trautman, the answer is Yes, there was more money in that race in 2008. Your guess as to why that is not the case this year is as good as mine.

– Given all this, that’s a lot of money in the Constable races. Again, you tell me what that’s all about.

– I have no idea why El Franco Lee needs $3 million in his campaign account. What in the world is he ever going to use it on? I can’t think of any good reason why anyone would want to add to that.

That’s all I’ve got. What do you see in these numbers?

What if Oliver wins?

Nothing good, that’s for sure.

The Lloyd Oliver Tree

“If he wins, I’m moving to Fredericksburg” said his GOP opponent, Mike Anderson. “I don’t have anything against him personally, but I can’t imagine what that office would be like.”

His criminal history, unusual sense of humor and the unfounded attacks on Anderson, the darling of county prosecutors, mean there is almost no support for Oliver among the people he would be leading if he wins.

Prosecutors, who spoke on the condition of anonymity, called Oliver a “joke” and worse. They were vehement about his lack of qualifications to run the office.

Because Harris County trended Republican in 2010, few of the courthouse lawyers and politicians interviewed thought Oliver would win. None knew of contingency plans for a recall election, heightened scrutiny to force an impeachment or other ways to remove a sitting district attorney.

Anderson said an Oliver victory could spark a mass exodus of as many as 100 of the 240 prosecutors in the District Attorney’s Office.

“These are the people we count on to try murders and aggravated sexual assaults and the aggravated robberies,” he said. “It could really be a horrible situation.”

There was a large exodus from the DA’s office after Lykos won in 2008, too. Whether you think that was a bad thing or not probably correlates with whether or not you supported Anderson in this year’s primary. Be that as it may, I don’t dispute the notion that an Oliver victory would be a disaster for the office, precisely because Oliver is a joke and a grifter who has no valid reason for running and has no good vision for how to run the office; indeed, as Patricia Kilday Hart showed last week, the ideas he does have are offensive and harmful. Nothing good comes from an Oliver win, and it’s not just cranky Internet kibitzers like me who think so.

“If he gets elected, I don’t know if he can make it four years without being indicted or removed from office,” said defense attorney Bob Moen. “I don’t wish that upon Lloyd, but after knowing him for all these years, will he make it four years? I think we’d have to check what the office pool is – may have to buy one of the squares.”

Boy, with friends like that, eh? You can still push the straight-ticket Democratic button when you go vote. Just make sure you follow that up by de-selecting Lloyd Oliver before you hit the “cast ballot” button. You can vote for Mike Anderson or not as you see fit, just don’t vote for Lloyd Oliver. And I’ll say again, I sure hope the HCDP is thinking about how to deal with situations like this going forward, because if Oliver doesn’t win he’ll probably file for one of the many available judicial races in 2014, just as he did in 2010 and 2008. We don’t want to have to go through this again in two years’ time, do we?

Endorsement watch: The easy calls

The Chron makes an easy call.

One of the clearest choices Harris County voters have in the 2012 election season comes in the race to succeed Pat Lykos as district attorney. Mike Anderson, a 30-year veteran of the DA’s office and a former criminal district court judge, is far and away the better qualified of the two contending candidates.

The Democratic hopeful, Lloyd Wayne Oliver, has admitted that he files for office mostly to get his name before the public in order to drum up law business. That attitude is beyond shameful.

[…]

In the Republican primary race we favored Lykos’ views on the use of the Divert program as a tool for rehabilitating first-time DWI offenders, and her decision to quit going after drug offenders for trace amounts (one-hundredth of a gram or less) of crack cocaine.

Anderson argues that there’s no statutory provision to allow for the Divert program, but he believes the same rehab of first-time drunk drivers could be accomplished if the Legislature would allow pre-trial diversion for DWI cases. We will encourage our new district attorney to push that agenda in Austin next session.

As for minor drug cases, our preference would still be to concentrate on bigger fish. But we would argue strenuously that if prosecutors continue to pursue trace cases, that the amounts for which users are prosecuted be sufficient to allow independent testing by both prosecution and defense lawyers. Additionally, we would encourage Anderson to be certain that those convicted be given treatment for their chemical addiction and not merely warehoused in jail.

That noted, we believe Mike Anderson has the integrity, professional experience and leadership qualities to make a fine district attorney. We encourage Harris County voters to cast their ballots for Mike Anderson.

Hard to argue with the choice. I don’t know that it’s even possible to make a positive case for Lloyd Oliver’s candidacy. Given that this race and the Sheriff’s race were cited by Patti Hart as two reasons to avoid straight ticket voting, I presume the Chron’s endorsement of Sheriff Adrian Garcia will be as easy and clear a decision for them.

On a side note, you can catch a rerun of the “Red, White, and Blue” episode on Houston PBS that featured Anderson and Oliver getting grilled by hosts David Jones and Garry Polland. I’ve embedded the video below, but I want to note that as a member of the show’s newly-formed advisory committee, I was one of a group of people asked to submit questions for the candidates, and they used the questions I provided. Check it out.

Once again on bail and jail overcrowding

Grits returns to a familiar topic.

Harris County has successfully reduced its jail population in the last couple of years to the point where they no longer must ship inmates to jails in Louisiana and other Texas counties due to overcrowding. And despite Chicken-Little pronouncements from the police union and tuff-on-crime zealots, the sky didn’t fall and in fact crime continued to decline in Houston. As of August 1, the jail was at 86% capacity, with zero inmates housed in other counties, and there’s little question that those numbers could decline even more through relatively minor policy tweaks. But that would require the cooperation of judges and the district attorney’s office, and there are few signs at  the moment that those public officials will act in the taxpayers’ interest to further reduce jail costs.

The most significant causes of reduced jail populations in Harris County stem from changes in policies at the District Attorney’s office: The cessation of charging people caught with drug paraphernalia with felonies based on trace amounts, and the creation of the DIVERT program for DWI defendants, which reduced the long-time trend of offenders choosing jail over probation for low-level DWI offenses. Unfortunately, the incoming District Attorney has pledged to reverse both those policies, meaning we can expect the Harris jail population to climb upwards beginning next year. Soon thereafter, the inevitable calls to build more jail space will resume in earnest, with more Chicken Littles telling us the sky will fall if more people aren’t locked up for longer periods.

It doesn’t have to be that way, and besides the DA, local judges are primarily responsible for excessive incarceration in H-Town. Last weekend, the Houston Chronicle ran an important story implicating jail populations (“Judges leery of no-cost personal bonds,” Sept. 9) that merits Grits readers’ attention. The story focused on a familiar theme to long-time Grits readers: the failure of Harris County judges to utilize personal bonds, requiring bail in most cases regardless of risk assessments from the county’s Pretrial Services division.
[…]

Mark Hochglaube, the trial chief for the new Harris County public defenders office told the Chronicle that “bond practices in Harris County force some innocent defendants to plead guilty because they’d rather accept a plea deal and a short sentence than spend months in jail waiting for a trial. In a few cases, he said, defendants have been held awaiting trial longer than the maximum sentence they could have received.”

It’s not just felony cases, though. According to the Pretrial Services division’s annual report for 2011 (pdf), some 60,179 misdemeanor defendants entered the Harris County Jail last year. Of those, 4,441 were granted personal bonds, 2,608 paid cash bonds (meaning they paid the full bail amount themselves instead of using a bail bondsman), and 25,495 employed the services of commercial bail bond companies. That means 27,635 people, or 46% of misdemeanor defendants couldn’t make bail and remained in jail either until they pleaded out or their case was otherwise resolved. Among felony defendants, 69% could not make bail and remained incarcerated until their cases were disposed. (That happens more quickly in Harris than some other jurisdictions because of the DA’s direct filing system, but as defense attorney Paul Kennedy noted, it still results in a system designed to maximize pressure on defendants to accept a plea deal.)

These numbers demonstrate why, as corrections expert Tony Fabelo has noted, expanded pretrial detention has been the main driver of increased jail populations since the turn of the century. By his calculations, while statewide jail populations increased 18.6% between 2000-2007, the number of pretrial detainees increased 49.2% over the same period. In that sense, Harris County’s situation isn’t unique except for its massive scope and outsized costs.

I asked Mike Anderson about this when I interviewed him back in February. He made it sound like it would be no big deal to reverse the two policies Grits cites, but that remains to be seen. As for the judges, I’m curious about something. As we know, until the 2008 election the judiciary in Harris County was entirely Republican. In the 2008 Democratic wave, Democratic candidates won eight of the nine criminal district court benches that were up for election that year. The other 13, as well as all 15 of the criminal courts at law, were on the ballot in 2010 and were all retained by Republicans in their wave year. Is there any way to know if bail policies differ in any significant fashion between the Rs and the Ds? Whatever the share of the problem was the judiciary’s fault, it all landed entirely on the Rs prior to 2009, but now Ds make up a bit more than 20% of that group (they’re down to 7 criminal district court judges now, since Kevin Fine resigned), so there ought to be a way to compare. Are Democratic judges responsible for fewer pretrial detainees on a per-capita basis than their Republican colleagues, or is there no clear partisan pattern and it just varies by individual judge? I’d like to know.

Oliver to remain on the ballot

Can’t say I’m surprised.

The Lloyd Oliver Tree

Attorneys representing Harris County Democratic Chairman Lane Lewis and the state Democratic Party argued that perennial candidate [Lloyd] Oliver should be kept off the ballot because he violated a party rule prohibiting a complimentary remark he made about defeated District Attorney Pat Lykos, a Republican, but District Judge Bill Burke ruled that Oliver was not bound by that rule.

Burke also rejected the argument that the party, as a private association, has the right to determine who should be on the ballot, regardless of election results.

[…]

“I don’t think that what happened amounted to a rule violation under party rules,” Burke said after a two-hour hearing on Wednesday morning.

Oliver admitted saying that he would have voted for Lykos had he not been running against her. He told the court Wednesday that he made the statement the day after the primary, so she technically no longer was a candidate. He also argued that the party rule applied only to chairmen and other Democratic officials.

“I have a First Amendment right to compliment public officials,” he told the court.

The judge agreed.

“I don’t think that amounts to an endorsement of the Republican candidate, since she had been defeated by then, and it was coupled with a swipe at the prevailing candidate, Mike Anderson,” Burke said.

Oliver, who told the court that Wednesday was his birthday and that he was either 68 or 69, had likened Anderson to a prison guard.

Responding to the argument that a political party had the right to determine who should be on the ballot, Burke noted that most of the cases that Democratic Party attorneys cited involved decisions reached before voters went to the polls in party primaries.

“It seems to me to be a different situation that we have here when the party accepts the filing fee, Oliver campaigns, does whatever he does to win the election and does receive the majority of the votes in the primary,” the judge said.

The case had been remanded to state court last Friday, as noted by commenter Jerad Najvar in my previous post. You know how I feel about this. I agree with Judge Burke’s reasoning, and I think he would have set a potentially dangerous precedent had he ruled otherwise. The situation the party is in is unfortunate, but these things happen and it’s not right to undo the result of a primary over a silly statement by a silly person. (Speaking of the primary, the version of the story I saw said that Oliver won it “by 30,000 votes”. He actually won it by a bit less than 3,000 votes, as you can see on page 19 here. Math is hard, y’all.) The best course of action, which is what I plan to go back to doing, is to ignore the guy. It’s not like he’s going to be out on the campaign trail making further mischief. If Oliver subsequently manages to win this election as well, we should all remind him that he only filed for the race to increase his name ID. Having unquestionably achieved this objective, he should then go ahead and resign, so that he can collect the reward for his higher profile. I mean, actually being DA would be bad for his business as a defense attorney, am I right? Let us speak of this no more until after November 6. You can go back to sleep now, Lloyd. PDiddie has more.

Birnberg files complaint to force Oliver off the ballot

I’m far from thrilled to have Lloyd Oliver as the Democratic nominee for District Attorney, but this seems a bit much to me.

Gerry Birnberg, the former party chair, filed a complaint earlier this month to have Oliver removed from November’s ballot because he praised the sitting district attorney, Republican Pat Lykos.

Specifically, Birnberg said in his complaint, Oliver told the Houston Chronicle in May that Lykos was such a good candidate that she “would have gotten my vote.”

[…]

Birnberg said he was not retaliating against Oliver for beating Zack Fertitta in the primary, but said he is concerned about Oliver’s loyalty and the Republican strategy.

“I believe the Republicans are planning on using his colorful past as a way to bring down the entire ticket,” Birnberg said.

He also said he expects loyalty to Democrats across the ticket, “and if a candidate is saying that ‘Republicans are still good candidates too,’ that’s not helpful for the Democratic party.”

So much to cover here, but let me start off by noting that Gary Polland was the first to report this:

This hasn’t made the local media yet, but former Democratic Chair Gerald Birnberg has made a complaint designed to remove Democratic “accidental” District Attorney candidate Lloyd Oliver from the ballot. This is an interesting development.

TCR wonders, do the D’s intend to remove and replace with a handpicked star who they think could take advantage of the nasty GOP primary battle between incumbent Pat Lykos and successful primary challenger Mike Anderson? Do the Democrats think that they can convince enough swing and Lykos loyalists to vote their way, and win a tight battle? Maybe it’s time for the Anderson group to smoke the peace pipe with District Attorney Lykos and her supporters.

Birnberg is worried that the Republicans will user Oliver as a club against the Democrats elsewhere on the ticket. Polland is worried that the residual acrimony from the Anderson-Lykos primary could let Oliver win a race he has no business winning. We live in interesting times.

I’m sure that Birnberg and Polland have both forgotten more election law than I’ll ever know, but I don’t see how the Dems can do this. For one thing, the case Birnberg is making seems exceedingly weak to me. I mean, the Democratic Speaker of the State House in 2000 (Pete Laney) endorsed George Bush for President, and he was far from the only Dem to do so back then. Compared to that, Oliver’s words barely register. I mean, they’d be grounds to remove him as a precinct chair, but to declare him ineligible as a nominee? I just don’t see it. Oliver is an idiot, but unless he chooses to withdraw I’m afraid we’re stuck with him.

Assuming that HCDP Chair Lane Lewis buys the ineligibility argument, it’s also not clear to me that Oliver can be replaced. Section 145 of the Elections Code doesn’t specifically address the question of replacing candidates who have been declared ineligible on the ballot, but Sec 145.039 says “If a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot”. By my calculation, that makes the deadline this Friday, the 24th. I have no idea if the machinery can be made to move swiftly enough to allow for this, again in the event that Lewis goes along with Birnberg’s complaint. It just adds to my incredulity about this.

The Oliver problem

sigh

Lloyd Oliver had run for office at least five times – likely more, he said; he’s lost count – and been beaten each time, falling short of judgeships and congressional seats, getting trounced as both a Republican and a Democrat.

Then he signed up to run as a Democrat for district attorney this year – and won, shocking himself and much of the criminal courthouse crowd.

The 68-year-old defense lawyer isn’t coy about why he has signed up for so many campaigns: Name recognition drives much of his business, and having his name on the ballot every few years is practically free advertising. Likewise, he had a simple explanation for his victory over well-liked primary opponent Zack Fertitta, a 36-year-old former assistant district attorney with a healthy war chest.

“They’ve seen my name on the ballot long enough, maybe they just thought I was the incumbent and voted for me,” Oliver said. “Sometimes you just can’t beat dumb luck.”

In a sense, this isn’t really a problem. Mike Anderson is an experienced prosecutor, and there’s no reason to believe he won’t be a competent District Attorney. I disagree with him on the matter of prosecuting trace drug cases, and I believe the worst case scenario Grits describes of the jails becoming overcrowded could well result from it, but at least there would be hope for some pushback from Commissioners Court and the Sheriff. The fact that the Democrats managed to nominate a potted plant to oppose him is a grievous tragedy from a political perspective, but not from a criminal justice one. It’s not like the alternative would have been four more years of John Bradley or Chuck Rosenthal.

The lost political opportunity really is a mortal sin, and I have to believe it was avoidable.

University of Houston political science professor Richard Murray said he thought Oliver may be a contender because black voters – who cast a huge share of Democratic primary ballots when there is no presidential race – would mistakenly assume he was African-American.

“If the choices are Zack Fertitta or Lloyd Oliver, that’s a pretty easy call for a lot of folks looking for somebody they think understands the issues in their community: ‘Let’s go with the black guy’ – who ain’t black, of course,” Murray said. “Mostly people are just throwing darts.”

Political consultant Joe Householder, of Purple Strategies, said in such a low-profile race, the odds of an unexpected result rise sharply.

“When (voters) start tracing their finger down the ballot, they say, ‘I don’t know anything about either of these guys, but I have heard of this guy, so I guess I’ll vote for him,’ ” he said.

Maybe some folks thought it was Chris Oliver that was running. Who knows? I tend to think that Householder has the more accurate explanation here, but a look at the precinct data once its available ought to settle the question. Be that as it may, this goes to what I said before about how we are (not) communicating with voters. I have no idea what Zack Fertitta, or for that matter any other non-African American candidate, did or does to tell African American voters about their candidacy. African American voters are a big part of the Democratic base and a big percentage of the primary electorate. Add to that the fact that there were three contested primaries in African American legislative districts, plus the HCDE primary in Precinct One and the Constable primaries in Precincts 1 and 7, and it didn’t take a genius to predict what the turnout pattern would look like. If anyone had adequate resources but didn’t have adequate outreach in these parts of the county, then no one should be too shocked by the result. Never overestimate your own name ID. I’m not saying Fertitta’s campaign did any of these things – I don’t know one way or the other – but I am saying these are things we need to learn from this debacle so that we can at least get something out of it.

GOP results, Harris County

Bullet points for all these result posts, I was up way too late last night. See the numbers here and the chat transcript from last night here.

– You could have sold me on any result in the GOP DA primary going into yesterday, but I definitely did not expect such a wide margin. Mike Anderson ran away with it, garnering 63% of the vote. I’m stunned by that. Similarly, I would have had no trouble believing that Mike Sullivan could knock off Don Sumners, but I didn’t expect a 64-36 thrashing. Finally, given the establishment support she had received, I’d have expected Leslie Johnson to do well in the County Attorney race, but it was a rout just like the others, with former State Rep. Robert Talton collecting 66% of the vote. Wow.

– By the way, with Sumners’ defeat, as a chat participant noted we will have our fourth Tax Assessor in four years when either Sullivan or Ann Harris Bennett is sworn in next January.

– All incumbent legislators – State and US House, plus Tommy Williams in the State Senate – won easily, with no one breaking a sweat. HD133 might have been seen as competitive, with the district being significantly reconfigured and Ann Witt throwing a ton of money into it, but Jim Murphy cruised with over 62%.

– Jack Cagle easily won the right to run in November for his Commissioners Court seat. Incumbent Constables all won. A couple of judicial races are headed for overtime. With Dewhurst versus Cruz also being on the ballot for July, there will be some votes to fight over.

– I hadn’t even realized there was a contested race for GOP Chair, but Jared Woodfill won another term.

– Turnout was 152,000. Election Day ballots slightly exceeded early voting plus absentee ballots.

On to the non-Harris GOP races next.

Endorsement watch: Fertitta and Lykos

The Chron makes its endorsements in the two primary races for District Attorney. On the Democratic side, they make the easy and obvious call for Zack Fertitta.

Zack Fertitta

Zack Fertitta represents a new generation at the Harris County courthouse, and deserves to be the Democratic Party’s candidate for District Attorney. Youthful and energetic, Fertitta has an established history within county criminal justice circles, having served as a prosecutor, defense attorney and member of a grand jury. His breadth of experience shows when he talks about his plans for progress if elected district attorney, focusing on the future rather than the fights of the past.

Fertitta has an admirable drive to bring the DA’s office technologically up to date, with ideas for training prosecutors on search-and-seizure issues related to cell phones before that new area of privacy erupts into controversy. “Notions of digital privacy are really going to be the battlefield for the 21st century,” he told the Chronicle. And his plan to move the district attorney’s office from paper to digital files is a much-needed step that will save time and money in the long run.

There was never any question about this one, as the two candidates are worlds apart in terms of qualifications and experience. It was more interesting to see how they’d choose on the Republican side, with two candidates of roughly equal heft. In the end they chose to stay the course with Pat Lykos.

DA Pat Lykos

The two combatants, and we use the term advisedly, are the incumbent, District Attorney Pat Lykos, and her challenger, former prosecutor and criminal court judge Mike Anderson. We recommend a vote for Pat Lykos.

While both wear the Republican label proudly and genuinely, their views about the current state, and future direction, of the DA’s office, the nexus of criminal justice in Harris County, are as far apart as, well, Orange is from El Paso. The tone of a recent joint screening visit with the Houston Chronicle editorial board was testy and confrontational. Worthy of a well-argued courtroom trial, if we may say.

[…]

When it comes to qualifications for office, this race is a virtual dead heat. But two factors tip our endorsement call definitively to Pat Lykos. She’s an outsider, and following the Rosenthal debacle, that’s what the DA’s office needs. Over the past three and a half years she’s made good on her promise to begin reforming the culture of an important department that had descended to the level of “Animal House.” We see no good reason to change course. While recognizing Mike Anderson’s strengths, we commend Pat Lykos to voters in the GOP primary.

As I’ve said, I’ve got no dog in that fight. Sometimes you know which candidate you want to be your opponent, but I don’t know who I’d pick in this race. I’m as interested as anyone to see who emerges from that election.

Chron profiles of Lykos and Anderson

We’ve already had an overview of the GOP DA primary, but that race is apparently too big for just one story, so now we have profiles of the two candidates, Pat Lykos and Mike Anderson. I figure if you’re following this race closely there’s not much stories like these are likely to tell you that you don’t already know, but they do sometimes remind you of things you may have forgotten about. That was the case for me in the Lykos story:

In this corner...

Going in to this political season, she has had to contend with two grand jury investigations of her office, both of which ended without returning any indictments.

One was an inquiry in to a former prosecutor’s allegation that she was made to under-report her overtime.

The other investigation, about HPD’s troubled breath alcohol testing vehicles, lasted six months and regularly was in the public eye because several court documents were released about the machinations of the process.

After the grand jury disbanded without any action, the members released a letter blasting Lykos for “unexpected resistance.” They also said she investigated them, which she denied.

The district attorney railed against the grand jurors and said the letter showed that the investigation was politically motivated.

The back and forth led to yet another investigation, this one by the Texas Rangers about whether county resources were used to investigate grand jurors. That investigation continues.

I’d forgotten about the first grand jury, and while I hadn’t forgotten about the Rangers investigation it hadn’t occurred to me recently to wonder what its status was. Now I know. As for the Anderson story, I did learn something new:

...And in this corner

“As a judge, Mike Anderson was very formal,” said defense attorney Norman Silverman. “I never had a problem with him, although as a judge he was state’s-minded. I had to have all my i’s dotted and t’s crossed.”

His detractors also say that his candidacy is an exercise in revanchism – revenge by members of an old guard resentful that an outsider, Lykos, wrested the office from their grasp in 2008.

Silverman, who is backing Lykos, holds to that theory. “When [Johnny] Holmes and (Chuck) Rosenthal ran that office, it was very much of a good-ol’-boy network,” he said. “We had to copy offense notes by hand and could only take notes. Lykos has just brought a much more refreshing let-the-chips-fall-where-they-may attitude. She’s been much more forthcoming with sharing information.”

Anderson rejects the idea of revenge but agrees that he represents a return to an earlier way of running the office. “There are some things from the good, old days that are very, very important – honor, integrity, ethics,” he said. “I mean all of those things should just flow like a heart beat at that office.”

Holmes, who retired in 2000 after 21 years as district attorney, supports his former colleague. “I have no personal animosity toward Pat Lykos,” he said, “but what’s been happening in her office tells me she doesn’t know what she’s doing. This isn’t on-the-job training.”

Holmes added that if Anderson lost to Lykos in the primary, he would vote in the fall for the likely Democratic nominee, former assistant district attorney Zack Fertitta.

I figure after most hard-fought primaries, especially ones where there’s some bad blood to begin with, there are loyalists of the losing candidate who refuse to back the winner. I also figure that in most cases, the effect is fairly minimal, and that party affiliation usually wins out. This one may be an exception. I admit I was a bit stunned to see Johnny Holmes say for the record that he would not vote for Lykos if she gets re-nominated. Will that make a difference in the fall? Would there be the same effect if Anderson wins? I really can’t say, but it’ll sure be worth keeping an eye on. As a reminder once again, you can listen to my interview with Lykos here and with Anderson here.

Nasty yet nice

The Chron’s characterization of the GOP primary race for District Attorney as a nasty fight between polite people strikes me as apt.

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Complaints about Harris County District Attorney Pat Lykos buzz through Houston’s criminal courthouse.

Assistant district attorneys, police officers and criminal justice bloggers talk about her being targeted by two grand jury investigations and being roundly criticized by law enforcement.

She even drew a challenger, retired judge Mike Anderson, in the May 29 Republican primary.

...And in this corner

According to political scientists and consultants, however, the voters most likely to decide between the two do not seem to care about insider talk. Lykos is raising more, spending more and enjoying support from other office holders and high-ranking Republicans.

“The stuff that’s gone on now is decidedly nasty, but it’s not something non-lawyers can really get their arms around,” said Democratic strategist Joe Householder, who is not connected to the race. “The stakes are large, but the interest level is low because people just don’t follow that kind of thing.”

Most voters, he said, are focused on presidential politics.

For better or worse they have less to focus on now. Be that as it may, I’d say that if the predictions about this primary being a low-turnout affair are correct – I’m not convinced they are; I think we’re in for a more or less normal level of turnout, say like what we had in 2004 – then it seems to me that the people who will be voting are the ones who care about it more and thus are likely to pay attention to races beyond the top of the ticket. Who that may or may not help in this race is a question I’m not qualified to answer. I don’t have a dog in this fight, I’m looking at November and Zack Fertitta. Having said that, I do have a couple of quibbles with this story. First:

Jones and others said the warring, although fierce in the trenches of social media, is not likely to be noticed by most Republicans until a month before the May 29 primary.

Lykos said she has been appalled by the allegations against her. “They’re running a vicious campaign against me,” she said.

Anderson said he stays out of the acrimony that has surfaced in online forums.

“Those guys have been fighting it out,” Anderson said of bloggers who have been exchanging body blows about the candidates. “I don’t read that stuff – people get nasty sometimes.”

The article spends a lot of time talking about the fact that there’s a proxy war going on in blogs and elsewhere on the Internet, but it never gives any specific information about who’s saying what about whom. I don’t understand the reason for being so oblique. Why not at least mention that Murray Newman and David Jennings are the main combatants? For goodness’ sake, they both have Chron blogs and have done some of that sparring on the Chron’s very pages. What’s with the They Who Must Not Be Named routine?

Lykos also lowered the penalties for suspects found with crack cocaine residue or crack pipes, infuriating area police.

District attorneys don’t have that power. What Lykos did was establish a policy that her office would not pursue felony charges against people arrested for possessing trace amounts – i.e., less that 0.01 grams – of drugs. This policy has been in place since 2010 (it was announced in December of 2009), and for the record I agree with it. It would not have been any longer or more complicated to get this right.

Anyway. In case you missed them the first time around, you can find my interview with DA Lykos here and with challenger Mike Anderson here.