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Pat Lykos

DA’s office ends trace case prosecutions

Good.

Kim Ogg

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Ogg does some housecleaning

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

Kim Ogg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Checking in with Kim Ogg

That’s District Attorney-elect Kim Ogg now.

Kim Ogg

Kim Ogg

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

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

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

[…]

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

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

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

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

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

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

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

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

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

Chron overview of the County Attorney race

It’s the one with the one Democratic incumbent running for re-election.

Vince Ryan

Vince Ryan

Vince Ryan calls himself the Doberman pinscher of Harris County.

The Democrat county attorney campaigned in 2012 as a government watchdog. He cannot point to any “dramatic” instances he has played the part, but said that is the point: deterrence through Doberman-like intimidation.

“A good watchdog, hopefully, doesn’t have to bite anybody,” Ryan said.

As Election Day nears, his Republican opponent, Jim Leitner, has another explanation: a reluctance to investigate government officials. Leitner said he would bring aggressiveness.

“If you’re the watchdog, you’re doing something,” Leitner said.

On Nov. 8, voters will have a chance to re-elect Ryan, 69, for a third term as county attorney, an office political scientists called immensely powerful but poorly understood by the public.

Ryan’s challenger is Leitner, 66, a criminal defense lawyer who studied with Ryan at the University of Houston law school some 40 years ago. Leitner has served in the Harris County District Attorney’s office, but it will be his first time running for county attorney.

The winner will oversee an office of more than 200 employees and represent the county when it is sued, such as the current civil rights lawsuit accusing the county’s bail bond system of discriminating against the poor.

Ryan was endorsed by the Chron, which noted that even his opponent thinks he’s done a pretty good job. Ryan had a bit of a bumpy relationship with Commissioners Court in his first term, but this one has gone much more smoothly. That said, some Democrats are not pleased with his handling of the bail practices lawsuit, which may dampen support for him. On the other side, Leitner’s work in Pat Lykos’ DA office likely means there are still some Republicans who won’t vote for him, as that blood feud will only ever be settled by the sufficient passage of time. Ryan was re-elected by a decent margin in 2012, and I expect him to win without too much difficulty this year. I’ll publish an interview with him in the near future, so you have that to look forward to.

Commissioners Court to get deposed

This ought to be interesting.

Harris County Judge Ed Emmett and all four county commissioners are scheduled to be deposed Monday in a federal lawsuit filed by former Houston Police Department crime lab supervisors who said they experienced retaliation after exposing problems with a mobile DUI testing program.

Amanda Culbertson and Jorge Wong say the Harris County District Attorney’s Office and county commissioners colluded in having them fired after they revealed problems in HPD’s breath-alcohol testing vehicles, known as “BAT vans.”

At the time of the terminations, Culbertson and Wong were working at a Lone Star College laboratory that supervised under-the-influence testing for the Harris County Sheriff’s Office. They say they lost their jobs when commissioners voted to cancel the Lone Star contract.

While working as analysts for HPD, Culbertson and Wong exposed problems with the BAT vans that complicated DUI prosecutions.

In retaliation, their 2012 lawsuit says, former Harris County District Attorney Pat Lykos and Assistant District Attorney Rachel Palmer lobbied commissioners to cancel the county’s long-standing contract with their employer, Lone Star. The county subsequently signed a more costly deal for lab work with the Texas Department of Public Safety.

In September, U.S. District Judge Lynn Hughes authorized the depositions of commissioners El Franco Lee, Jack Morman, Steve Radack and Jack Cagle as well as Emmett and his criminal justice adviser Doug Adkinson. The judge also limited each inquiry to one hour.

[…]

HPD began using the BAT vans in 2008. Into early 2011, Culbertson reported temperature and electrical irregularities with instruments that could influence the integrity of tests, the lawsuit said.

In May 2011, Culbertson testified in a DUI trial that she could not verify a device had been working properly during a test. In July 2011 testimony, she said she could not trust the accuracy of a van analysis. That same month, Palmer, the assistant district attorney, wrote a memo to a supervisor in which she concluded that Culbertson “could not be trusted to testify in a breath test” and that she was “gravely concerned” about Culbertson’s ability to “testify fairly” in the future.

Culbertson and Wong resigned from HPD in 2011 to become technical supervisors at Lone Star.

In the fall of 2011, the college’s contract of nearly three decades with the county – which had been renewed annually – was terminated in favor of a more expensive DPS deal. Culbertson and Wong were fired by Lone Star in October 2011, shortly after the commissioners transferred the testing business.

Hughes dismissed the lawsuit in August 2013, but that decision was reversed by the 5th U.S. Circuit Court of Appeals in June. All claims against Lykos have been dismissed or settled, and all claims against Palmer have been tossed.

See here and here for some background. As I’ve said before, I haven’t followed this story closely enough to have a firm about about it, but as having all five members of the Court deposed in a lawsuit is an unprecedented situation, I figured it was worth noting. The Press has more.

Lawsuit against county by former crime lab supervisor partially reinstated

It’s a bit of a convoluted story.

A federal appeals court has reinstated portions of a lawsuit filed by two former Houston Police Department crime lab supervisors who contended that Harris County prosecutors retaliated against them after they exposed problems with the city’s breath-alcohol testing vans, or “BAT vans.”

In a 36-page opinion issued on Monday, the U.S. 5th Circuit Court of Appeals remanded some claims asserted in the 2012 lawsuit filed by Amanda Culbertson and Jorge Wong back to a Houston federal trial court.

Most of the original lawsuit, which was largely dismissed on the pleadings before any substantial discovery such as depositions, now returns to U.S. District Judge Lynn Hughes for further consideration and a possible trial.

[…]

The original lawsuit alleged that the lab supervisors lost their jobs after raising concerns about the reliability of tests conducted by HPD’s breath-alcohol testing vehicles because of a retaliatory campaign by then-Harris County District Attorney Pat Lykos and Assistant District Attorney Rachel Palmer.

Houston began using the mobile instruments in 2008. By mid-2009, Culbertson began to notice temperature and electrical irregularities with vans that could influence the integrity of tests, the lawsuit said. Culbertson and Wong expressed concerns about problems that could have led to test inaccuracies into early 2011.

In May 2011, Culbertson testified in a trial that she could not verify that an instrument had been working during a test. She testified in a July 2011 case that she could not trust the accuracy of a van analysis.

That same month, Palmer wrote a memo to a supervisor in which she concluded that Culbertson “could not be trusted to testify in any breath test” and that she was “gravely concerned” about Culbertson’s ability to “testify fairly” in the future.

See here for the background. Culbertson and Wong then resigned from HPD and went to work for Lone Star College, which at the time had a contract with Harris County to supervise breath-alcohol testing for the Sheriff’s office. That contract then got terminated, Culbertson and Wong got fired, and the lawsuit was filed. The Fifth Circuit determined that Judge Hughes erred in dismissing the suit against the county (former DA Lykos settled in 2013 and is no longer a party to the litigation), so back to district court it goes. I don’t have anything clever to say about it, it’s just that this was a nasty little piece of business when it happened, and it serves as a reminder that not all of the problems with the HPD crime lab were the city’s responsibility. I’d guess that a settlement of the lawsuit is the most likely outcome at this point, but we’ll see. Hair Balls has a lot more details, as well as a copy of the Fifth Circuit’s decision, so go read that story if you’re still confused.

Chron overview of DA race

There’s a simple question at the core of the race for Harris County District Attorney.

Kim Ogg

Kim Ogg

For two years, in the early 1990s, Kim Ogg and Devon Anderson worked in the same office under legendary Harris County District Attorney Johnny Holmes.

Houston at the time was in the throes of a crime spike that sent the city’s homicide numbers soaring as crack cocaine and drug-related violence were roiling cities across the nation. Harris County led the country in death penalty verdicts, cementing the reputations of Holmes and the district attorney’s office as among America’s toughest and most aggressive prosecutors.

Ogg already was a senior prosecutor when Anderson joined the office in 1992 as a “baby DA.” Though they rarely crossed paths at the time – the office employs more than 200 lawyers – the two carved out reputations as hard-charging assistant district attorneys with more than 100 prosecutions to their names.

Whatever experience they may have shared as prosecutors, the two have taken widely divergent paths since getting their starts in the office they now want to lead. And it is those differing paths that inform their ideas on how the office should be run.

[…]

Her long experience at the office is one of the reasons former district attorney Chuck Rosenthal is supporting Anderson.

“I just think she’s a better candidate and would do a better job,” he said. By working as a prosecutor, then as a judge, he said, Anderson has stayed in the courthouse and knows more about how the office should be run.

Robert Scardino, a criminal defense lawyer for more than 40 years, said he is supporting Ogg because he hopes she will modernize the office.

“I think that office needs to have a change in its entire perspective and approach,” he said. “It’s been going in the same direction for many, many years. I think she’ll bring it into the modern age with some ideas on how to make it run more efficiently.”

That last bit encapsulates what I’ve said before about this race. Putting all partisan considerations aside, if you like the way the DA’s office has been run for however long it’s been since Johnny Holmes was first elected, minus the four years that Pat Lykos was in office, then Devon Anderson is the DA for you. If you think it’s time for a change, and/or if you liked Lykos, then you should vote for Kim Ogg. That’s about all there is to it. Partisan considerations may overshadow that dynamic, in which case it may get re-litigated in 2016. If not – if Harris is close to 50-50 overall – then we’ll at least have an answer to that question.

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.

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.

More on Kim Ogg

Here’s the full Chron story about Kim Ogg’s declaration that she will run for Harris County DA as a Democrat in 2014.

Kim Ogg

“I have the varied experience in policy, in prevention and in prosecution that I think gives me a broad overview of the system,” Ogg told reporters on the steps of the historic 1910 Harris County Courthouse. “The problems we face are complex.”

Ogg, 54, is the first Democrat to announce a run against Devon Anderson, who was appointed last week to complete her recently deceased husband’s term and is expected to run in the Republican primary in March.

Ogg said she applauds Anderson, 47, for taking over the unexpired term, but said the widow is not yet the GOP nominee.

“I look forward to debating real issues with whoever the Republican nominee is,” she said.

Ogg said her first order of business would be to reverse the district attorney’s so-called “trace case” policy.

[…]

Ogg also said the district attorney’s office should be working harder to keep the mentally ill out of jail.

“I’m afraid we’ve got the jails full of low-level mentally ill people rather than the truly dangerous people who are running our streets.”

See here for the background. Ogg is right to focus on the causes of the uptick in the Harris County jail population, which definitely is something a DA can affect. Focusing on mental illness and the need to divert the mentally ill from jail to treatment is a good and productive thing to do, too. (Expanding Medicaid would also have a significant positive effect on this problem, but alas, that is something that the DA – and the Sheriff, and the County Judge – do not have any control over.) I’d like to see Ogg address the issue of personal recognizance bonds as well, but this is a good start.

One more point of interest from the story:

Among dozens of other supporters who watched Ogg announce, former First Assistant Jim Leitner said he is behind Ogg.

“I’m supporting her because she the right person for the job,” Leitner said. “I’ve been able to see firsthand how she works ‘outside the box’ to get the problem of crime solved in Harris County.”

Leitner ran unsuccessfully in the GOP primary in 2008 and became the top lieutenant for the eventual winner, Lykos.

This may be a suggestion that the Pat Lykos supporters will fight their battle in November rather than March, which if so would seem to be a wise choice given that the result last March was lopsided while the result last November was close. I don’t know if Leitner is representing a group or just speaking for himself, and either way that doesn’t mean Devon Anderson will have a clear path to the GOP nomination. Nonetheless, it’s worth noting. Murray Newman has more.

The Lykos era officially ends

That’s all she wrote.

Pat Lykos

A grand jury scrutinizing former District Attorney Pat Lykos and her administration declined Thursday to indict Lykos regarding allegations of misuse of public resources.

The Harris County grand jury’s decision to end its term without action ends a yearlong probe. It was initiated when the Texas Rangers asked for a special prosecutor to look into allegations that members of the Lykos administration had investigated members of another grand jury who spent six months looking into evidence collected by the Houston Police Department’s troubled breath alcohol testing vehicles.

Attorney Eric Nichols was appointed as a special prosecutor weeks after the Rangers’ February 2012 request.

Because grand jury proceedings are secret, Nichols said little Thursday except that its term had ended and no indictments were handed down.

See here, here, and here for the background. To say the least, this was a bizarre story, involving no small amount of inside-baseball Republican politics. I never really thought there was anything to this, but it’s hard to believe that the story didn’t damage Lykos’ prospects in last year’s primary. Be that as it may, and barring anything strange, this is the end of the line.

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.

Former HPD lab supervisor files sues Lykos, county

Here’s a nice little going away present for District Attorney Pat Lykos.

DA Pat Lykos

Two former Houston Police Department crime lab supervisors have filed a federal lawsuit against Harris County District Attorney Pat Lykos, saying the county’s top prosecutor retaliated against them after they spoke out about problems with HPD’s breath-alcohol testing vans.

The lawsuit, filed Monday, was brought against Lykos, prosecutor Rachel Palmer and Harris County by Amanda Culbertson and Jorge Wong, identified as “citizen whistle-blowers” in the lawsuit.

Among several allegations, the lawsuit says that officials with the DA’s office retaliated against Culbertson and Wong by lobbying the Harris County Commissioner’s Court to cancel a contract with a local private laboratory, where the two found jobs after leaving HPD.

The lawsuit also alleges that retaliatory actions taken by Lykos and Palmer included harming Culbertson and Wong’s reputations and putting their licenses as technical supervisors for the state’s breath-alcohol testing program at stake.

Culbertson and Wong said the retaliation began after they expressed concerns about the reliability of tests conducted in HPD’s breath-alcohol testing vans.

“It’s important for citizens to be able to speak openly and publicly about matters of public concern, such as problems with the (breath-alcohol testing) vans and problems with the crime lab,” said attorney Scott Cook, who represents Culbertson and Wong. “That is the heart of the First Amendment.”

I didn’t follow this saga very closely, so let me refer you to some other people who did:

Grits for Breakfast

Paul Kennedy

Murray Newman

See also this Grits post, in which he makes the point that breathalyzers and their efficacy should be under the purview of the Forensic Science Commission but aren’t, and this Big Jolly post, which has video from the plaintiffs’ press conference and a copy of their statements and the lawsuit itself. I’m sure there’s more but that’s plenty for now. I’m also sure Murray’s prediction that this will move along slowly is accurate. Anyone in the peanut gallery want to add something to this?

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?

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.

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.

Interview with DA Pat Lykos

DA Pat Lykos

For my interviews this week, I’m going to take a brief detour from the Democratic primaries to converse with the two candidates in the highest profile Republican primary in Harris County. That would be the District Attorney race, and we begin today with incumbent DA Pat Lykos, who bucked the Democratic tide in 2008 to succeed the disgraced Chuck Rosenthal. Lykos was a judge for 14 years in County and District Criminal Court, including a stint as chief judge of the Harris County criminal district courts. She has also served as a senior district judge and as a special assignments judge.

A couple of notes before I get to the interview. I generally try to meet candidates at their office or home, but that doesn’t always work out. In this case, we met at a restaurant, and while it was fairly empty there was a fair amount of background noise. I could always hear Lykos when she was speaking, and I think that she sounds clear enough on the recording, but be forewarned. Also, I generally do interviews more than a week in advance, sometimes two or three weeks before they run, since schedules are unpredictable and I need to keep a steady publication pace. This interview was conducted last Wednesday, which is to say after the grand jury hearings concluded and the news of the FBI and Texas Rangers responding to a complaint had hit. My interview with Mike Anderson was done before all of that, so the questions to him were different. I hope that answers any questions you may have about that. With that all said, here’s the interview:

Download the MP3 file

You can find a list of all interviews for this cycle, plus other related information, on my 2012 Harris County Primary Elections page. You can also follow this blog by liking its Facebook page.

FBI looking into DA’s office over grand jury “investigation”

Oh, boy.

DA Pat Lykos

Eyewitness News learned from people interviewed that the FBI and Texas Rangers are asking questions inside the DA’s office. The questions aren’t about BAT vans, but about the DA and her team and how they reacted once the grand jury decided to investigate her.

Remember, at first Lykos said she didn’t authorize any investigation of grand jurors.

“I know nothing of that, I certainly didn’t authorize the investigation — and, you know, give me a name,” said Lykos.

But once we got that name, Lykos admitted she ordered her chief investigator Don McWilliams to conduct internet searches on grand jurors, special prosecutors and two judges.

At least some of those searches were conducted with county paid for databases.

“Does that constitute a misuse or abuse of official information?” KTRK Legal Analyst Joel Androphy said.

After reviewing Texas law, Androphy suggested the DA searches may have crossed the line. Grand jurors’ names were sealed by court order months before the DA told her chief investigator to dig up their political past.

“They had access to the names and they were searching out the names that no one else had the ability to search out,” Androphy said.

“And that may cause legal problems for them?” we asked Androphy.

“Absolutely. And at least it will cause someone to review this,” he replied.

See here for the backstory. None of this means that there will be any charges brought, or that any wrongdoing will be alleged. But one way or another we ought to get an answer to the question about whether or not there had been an “investigation” of some of the people involved in that grand jury hearing.

What is an investigation?

Remember when I said that the grand jury saga wasn’t over yet?

DA Pat Lykos

After denying any investigation into the grand jurors who for six months investigated her office, Harris County District Attorney Pat Lykos disclosed that she directed her chief investigator to run “a cursory Internet search.”

Meanwhile, sources say an investigation by the DA’s office into grand jurors, two judges and a political opponent of Lykos was ongoing during the grand jury’s probe.

On Tuesday, a grand jury ended its investigation of possible problems with evidence from the Houston Police Department’s DWI testing vehicles and the DA’s office involvement. The grand jury then accused Lykos’ office of investigating them.

“I know nothing of that,” she said at a news conference Tuesday. “I certainly did not authorize an investigation.”

But Lykos surprised many when she issued a statement a day later saying that because her office was “unfairly attacked” she had ordered an Internet search of members of the grand jury. “We were simply trying to learn if there was a political motivation behind the attacks,” Lykos said.

On Thursday, Lykos released another prepared statement, attempting to draw distinctions of the meaning of “investigation.” Her statement said an “investigation” involves obtaining confidential information, accessing law enforcement databases, conducting surveillance, or interviewing witnesses.

She apparently was making the case that a simple Google search did not rise to the level of “investigation.”

“The purpose of the Internet search was to simply try and determine what were the reasons for this grand jury’s radical, erratic and what we believed to be unlawful actions,” according to her statement.

KTRK’s Ted Oberg has been doing a lot of reporting on this story – see here and here. Is doing a Google search on someone an “investigation”? David Jennings, a Lykos supporter, says no.

[Lykos] insists, and I’ve come to believe her, that her definition of what “investigate” means is entirely different than mine. Hers is a formal, working definition that would include the full weight of the HCDA’s office, including the use of investigators, law enforcement databases, background interviews with neighbors, employers, etc. After a long career as a police officer, a judge, and now as a district attorney, that is what the term means to her.

The DA’s argument has been that the grand jury, including the jury’s foreperson and Judge Susan Brown in whose court it was operating, were politically biased against her. Jennings goes into some of the evidence for that. He then continues:

So back to the original question, do you believe that DA Lykos ordered an “investigation” (remember her definition) or do you believe that the team at the HCDAO felt that they were under a political attack and did a Google search to find out who was attacking them? Using her definition, it is easy to see why she would have answered that question at the news conference the way she did. In other words, I believe her. As they say, your mileage may vary but before you quickly jump to a conclusion, at least do yourself a favor and consider what you would have said in her shoes with her background. Also consider that if they had performed a full investigation, public information requests would prove that. Alas, there are none.

And that last one is critical. Notice that near the end of Mr. Oberg’s report, he states that “county paid for, password protected internet databases” would have to be used to find out this information. Nonsense. Lots of people did the same searches on the same people because that grand jury leaked like a sieve. I assure you that I don’t have access to “county paid for, password protected internet databases” and I found everything they did and more. As did Mark Bennett, whom Mr. McWilliams references in his statement about the issue. Once [grand jury foreperson Trisha] Pollard put her name in the press, it was easy. If Mr. Oberg has something that proves his assertion, he needs to show us.

I’ll buy the explanation that “investigate” has a specific meaning to law enforcement, and I am inclined to agree that searching public domain information – i.e., Googling – does not rise to that definition. If that’s all there is, then I agree with Jennings that this wasn’t an “investigation”. But in that post Jennings didn’t address Oberg’s subsequent report, which contains this detail:

Using the confidential list of grand jurors’ names, the DA’s chief investigator looked at Facebook, Google, the state bar and then accessed a county paid for, password-protected database called Accurint—which gave him a list of grand jurors’ addresses, jobs, relatives, bankruptcies, all sorts of information and connections.

The question of how the DA’s office got the list of grand jurors’ names is a separate one. I think it’s fair to say there have been enough leaks coming from the grand jury room to cast doubt on how confidential that information really was, but I’m more interested in that bit about Accurint. In Jennings’ subsequent post, he prints a statement from DA investigator Jim McWilliams, from which we get this:

On Saturday, October 22, First Assistant District Attorney Jim Leitner called me and said that he had spoken to Judge Lykos earlier that morning, and that it was their belief that the Grand Jury was acting in violation of the law. Specifically, the Grand Jury had barred the District Attorney’s Office from the Grand Jury room. They had then proceeded to take testimony from witnesses at a time when our office had not yet been disqualified, nor had Attorneys Pro Tem been appointed. Mr. Leitner voiced his concern that the Grand Jury was leaking information to the DWI criminal defense bar and the news media. I believe that he also voiced a complaint that the Grand Jury was compromising the ability of our office to prosecute DWI cases, although I may be recalling this fact from another conversation with him.

Mr. Leitner told me that a Grand Juror shared the same uncommon last name with a DWI defense attorney who had been quoted in media sources. He thought that this was suspicious with regard to possible leaks of secret proceedings, and directed me to research whether there was a familial relationship between these persons. I told him that I could research familial relationships via subscription databases. Primarily by accessing Accurint and TLO, two .subscription databases that “míne” or collect information from a variety of third party sources, it appeared to me that there was no relationship, and that their common last name was mere coincidence.

Mr. Leitner also told me that the foreperson of the Grand .Iury was an attorney. He directed me to research what kind of law she practiced, and whether there was evidence of ties to outside parties who might have access to Grand Jury actions. I asked him if, for example, he wanted me to look for her having practiced criminal defense or DWI law. or whether she had served as counsel for a media organization. He confirmed that these were the kinds of “red flags” I was to look for. I told him that our subscription databases would give me information on professional associations. Again, primarily by accessing TLO and Accurint, I found no suspicious associations. I terminated my inquiry at this point, and called Mr. Leitner to tell him that I had found nothing upon which to proceed.

I called the District Attorney later that afternoon and left her a voice message. I did not discuss specific databases or search tools used, nor did I give her a detailed “blow by blow” account of my findings, other than that I had essentially found nothing.

[…]

In summary, my actions on the 22nd were predicated on the widely held belief of this office, piausible that the law Wa# iaeing The First Assistant directed me to conduct an inquiry to try to find information to that effect. Finding no such information, I made no further inquiries.

My actions of the 29th were made in response to a request from the First Assistant for my help. Those actions did not involve the use of any county equipment or property, nor were any law enforcement or otherwise proprietary data sources accessed, nor did I engage in those actions in the course and scope of my duties as a law enforcement officer.

What I have recounted in this document was provided to the Attorneys Pro Tem when I met with them, outside the presence of the Grand Jury, in November.

I suspect the lack of detail given to Lykos after that first search may explain the “investigation” confusion. Jennings doesn’t mention the contradiction, but he does point out that if the Attorneys Pro Tem – that is, the attorneys that were appointed by the judge to advise the grand jury – knew about this, it shouldn’t come as a surprise to the jurors. In responding to the Oberg reports, Mark Bennett calls Accurint “an investigative tool” that accesses information that is not “in the public domain”. He also notes that one must declare one’s purpose for using Accurint, whose allowable uses are proscribed by federal laws, and that he “[bets] that Accurint keeps a record of what purpose searchers declare”. If so, then we ought to be able to get an objective answer to the question of whether or not there was an “investigation” of the grand jurors and other associated people or not. Of course, to get that answer from Accurint would require an “investigation”, and at the end of Oberg’s second report he says “The FBI tells us at this point it is not investigating, saying there is no evidence of a federal crime.” So for now at least, we get to decide that for ourselves.

Grand jury no-bills DA’s office

Thus endeth one of the most fascinating local stories in recent memory.

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney’s office and the Houston Police Department’s DWI testing vehicles with a blistering report, but no indictments.

“There was no evidence of a crime,” said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA’s office for “unexpected resistance” and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

“The stain upon the HCDAO will remain regardless of any media statements issued or press conferences issued by anyone,” according to the statement.

That may be all they wrote, but something tells me we have not heard the last of this. Like Grits, I look forward to reading the jury’s report. Hair Balls has more.

UPDATE: Here’s the statement from DA Lykos about the grand jury’s decision. I am greatly intrigued by this bit at the end:

The Harris County District Attorney’s Office has long been eager to share what we know with the public. Now that the grand jury’s proceedings have ended, we will be responding—vigorously.

In the days to come, our website—HarrisCountyDA.com—will feature a new section devoted to setting the record straight.

The Harris County District Attorney’s Office is confident that anyone willing to review the full set of facts, in an unbiased and fair-minded manner, will conclude we have acted responsibly and with integrity in every respect.

I’m sure I’ll be taking a close look at that. In the meantime, the grand jury’s statement is here.

January finance reports: Harris County

January is a very busy month for campaign finance reports, since they are due for all levels of government. I’ve been busy updating the 2012 Primary Election pages for Harris County and elsewhere in Texas with reports as I can find them. Here’s an overview of some races of interest in Harris County. I’ll have similar reports for State Rep and Congressional races next week.

Let me preface this post by saying that I loathe the County Clerks’ Campaign Finance Reports page. You can’t search for an individual by name, you can only search for all candidates whose last name starts with a given letter. All of the reports are scanned PDFs, which means that most of them are handwritten, though even the ones that are electronically generated are then apparently printed and scanned. This has the effect of creating much larger files, which are then harder to navigate, and Adobe being what it is they managed to crash Chrome on my PC and IE9 on my laptop. They do open in the browser with a direct link, unlike the city’s reporting system which opens each report as an Acrobat file for download, which I then have to upload and share to make available on my page, so as long as your browser continues to function that’s nice. All I know is that when I am named Supreme Commander of the world, my first official action will be to outlaw paper filing of campaign finance reports. It’s 2012, for Pete’s sake.

OK, rant off. Here are the highlights:

District Attorney

Incumbent Pat Lykos starts the year in good shape, having raised $194K with $320K on hand; she spent $40K during the cycle. Primary opponent Mike Anderson reported no money raised or spent. He was a late entrant and likely hasn’t had any fundraisers yet. I’m sure he’ll have sufficient resources to wage a campaign. On the Democratic side, Zack Fertitta had an impressive haul, taking in $170K, with $141K on hand. I don’t know exactly when he named a treasurer, but I’m pretty sure he didn’t start raising money until a couple of months into the cycle. His primary opponent Lloyd Oliver, who is listed for some bizarre reason in the county financial reporting system as “Oliver Lloyd” – I only found his report by accident, looking for other L-named candidates – reported no money raised or spent.

Sheriff

Sheriff Adrian Garcia will have a tough race in November, and he starts the year well armed for it, having collected $187K and maintaining $302K. He has two primary opponents – Delores Jones has $1,038 on hand, while perennial contender Charles Massey El had no report visible; yes, I checked under M and under E. There are eight Republican hopefuls, but only four filed reports. Ruben Monzon raised $33K; Carl Pittman raised $13K and reported $24K in loans; Brian Steinacher claimed the princely total of $750 raised. The most interesting report belonged to Louis Guthrie, who claimed to raise $96K with $30K in loans. That caught my eye at first, but he only listed $21K on hand, which made me suspicious enough to read the whole report. The individual contributions he detailed added up to only $6450 in cash plus about $18K in kind for things like printing and food, which are usually considered expenses. Something is definitely off there, but even if you took him at his word, the four of them together raised less than Garcia did.

County Attorney

Not really on anyone’s radar since it’s a lower profile office and there are no contested primaries, but Democratic incumbent Vince Ryan raised $29K and has $126K on hand. Republican challenger and former State Rep. Robert Talton raised $14,650 and had $10,500 in loans, but spent $14,978 and was left with $10,367 on hand.

Tax Assessor

In the battle of Guys Whose Surnames Both Start With The Letter S And Are Thus Convenient To Find In The Otherwise Wack Harris County Finance Reporting System, incumbent Don Sumners reported no cash raised and $3,911 on hand, while current Council Member Mike Sullivan made good use of his remaining Council campaign fund, which allowed him to report $53K on hand. He actually raised $8200 for this cycle, and had $15K in loans outstanding. Democratic challenger Ann Harris Bennett, who was listed under the Bs, raised no money and had $1,856 on hand, presumably left over from her 2010 race for County Clerk. Remind me to ask Clerk candidates in 2014 about how they propose to overhaul the finance reporting system.

Constable

I didn’t bother looking at a lot of these reports, as there are just so many Constable candidates. Among those I did look at were ones for the open Precinct 1 seat. Alan Rosen did the most, raising $43K with $37K on hand. Cindy Vara-Leija raised $22K and had $15K on hand; Grady Castleberry, who also had a July report, raised $2K but had $19K in loans and $23K on hand. Quincy Whitaker’s January report was not visible as of this publication; his July report claimed $5K raised and $18K spent but did not list any loans or cash on hand.

That’s your Harris County finance report. I’ll have state and federal candidates next week. The one other county race I’m watching is the Democratic primary for Travis County DA, featuring incumbent Rosemary Lehmberg and former judge Charlie Baird. The Statesman noted their totals, and I have their reports linked on the non-Harris page – here’s Lehmberg, and here’s Baird. Check that page and the Harris page for more reports as they come in. Greg has more.

UPDATE: It has been pointed out to me that there is a “Friends of Mike Anderson” finance report, which I would have found if I could have searched by name and not by letter, and that this report shows contributions of $152K and cash on hand of $135K. That report lists his office sought as the 127th District Civil Court bench, but that’s neither here nor there.

Lykos appears before the grand jury

DA Pat Lykos

And that’s all we know about it.

Harris County District Attorney Pat Lykos testified Tuesday in a grand jury investigation of the Houston Police Department’s controversial mobile DWI testing vehicles.

Because grand jury subpoenas and testimony are secret, it is unclear how long the elected district attorney testified or what she said, but a source close to the investigation confirmed that she appeared and answered questions about HPD’s breath alcohol testing vans.

The rest of the story is basically a rehash of what we know so far, which also isn’t very much where the grand jury is concerned. Here’s some of what I’ve blogged about it so far. If and when the grand jury returns indictments, then we’ll know more.

Lykos subpoenaed

That grand jury keeps stirring things up.

A grand jury investigating possible wrongdoing within the DA’s Office has officially subpoenaed DA Pat Lykos. The probe centers around problems with the Houston Police Department’s DWI testing vans.

The DA’s Office will neither confirm nor deny that there’s been a subpoena issued. They say that due to the secrecy of the grand jury proceedings, they can’t talk about it. But we do know that the DA has been subpoenaed and that some time in the next few weeks, she will be testifying.

This is an ongoing grand jury investigation that’s already seen some of the DA’s top assistants take the stand. At question are the DA’s use of so-called BAT vans used in drunk driving cases, and whether the DA’s Office knew of flaws with those testing vans without informing defense attorneys of those potential problems.

There are several links to prior coverage on that story, if you need to catch up a bit. Let’s just say that if this is true and it does happen, it’s going to be a big deal. Mark Bennett has more.

Inmate outsourcing on the way out

This is unequivocally good news.

Dropping inmate numbers at the Harris County Jail will let the county end its nearly 5-year-old practice of shipping overflow inmates to Louisiana and other Texas counties within days, Sheriff Adrian Garcia said this week.

The jail population has fallen 31 percent since 2008, to 8,573 inmates. The jail has a capacity of 9,434, but has at times held more than 12,000. Garcia hopes the expense of contracts with far-flung jails – totaling $31 million in the last two years – has ceased for the foreseeable future.

As of Friday, the sheriff had no inmates in Louisiana and just 21 elsewhere in Texas; more than 1,600 inmates had been outsourced as recently as June 2010.

“I don’t want to be overly optimistic that this is forever a thing of the past,” Garcia said. “There are factors outside our control that could occur at any given time. But we’re excited that today’s reality is that we no longer will be having people outsourced outside of Harris County and that it will be a savings to the taxpayers.”

We’ll discuss those outside factors later. I want to pause for a moment to take credit for the use of the term “outsourcing” for sending inmates elsewhere. I’ll be even happier if a few years from now we’ve forgotten that it was ever needed. The fact that (nearly) all of our inmates are now here in Harris County should not obscure the fact that there are still too many of them; at least, there are still too many of them for the number of guards in the jails. We have patched this problem, for which the county’s multiple-year hiring freeze is an exacerbating factor, by squeezing a lot of overtime out of the guards, a solution that is both unfair to them and expensive to us. Now that we’re not paying Louisiana to house some of our prisoners, maybe we can take some of the money we’d been spending on that and use it to hire a few more guards. The Sheriff will make that request at the Tuesday Commissioners Court meeting. I can’t wait to hear what their excuse to turn him down will be this time.

So why are there fewer inmates to outsource, anyway?

Officials attribute the drop in inmates to several factors:

Local and national crime rates are down. There were 36,851 new felony cases filed in Harris County last year, down from 38,133 in 2010, and 44,006 the previous year. Misdemeanor courts also are sending fewer inmates to jail.

Harris County District Attorney Pat Lykos’ decision to stop filing felony charges against suspects found with trace amounts of illegal drugs as of Jan. 1, 2010. Those carrying used but empty crack pipes or other drug paraphernalia now face misdemeanor tickets.

[…]

“We did the right thing and then all these other benefits flowed from it,” Lykos said. “There are more officers on the streets, we have jail cells for dangerous criminals, and we can get to trial quicker.”

The county has launched various diversion programs. In April 2010, Garcia began allowing nonviolent inmates who enroll in educational or work programs to earn three days’ credit for each day served. As of mid-December, 3,661 inmates had been released early under the program, which can shave up to two months off the maximum county jail sentence.

Again, as you know, I agree with and applaud Lykos’ policy. It was the right thing to do, for the reason she states, and you can see the benefit we have reaped from it, in dollars and cents. The Sheriff’s new diversion programs, aimed as Lykos’ trace-amount policy is at non-violent offenders, is also showing measurable results. The old maxim about locking up those we fear and not those we’re just mad at has a lot of wisdom in it. If we make better choices about who we throw in jail, it costs us less money. You may say that comes at the expense of public safety, except that the violent crime rate is down, in Houston and in Harris County. It’s not locking up more people, it’s locking up the right people that makes a difference.

As good as all this news is, there is still a lot of room for improvement:

Earl Musick, president of Harris County Criminal Lawyers Association, cheered the drop in jail population, but said his group remains concerned at the number of inmates who are awaiting trial, unable to make bail.

The number of pretrial detainees fell along with the jail head count last year, but their share of the total population stayed at about 60 percent. On Friday, 6,220 of the jail’s 8,573 inmates – or 73 percent – were pretrial detainees.

“I’m not saying everyone in jail is innocent, but there are innocent people that are having to make that decision: ‘I guess I’ll give up my right to a trial so I can get out of jail,’ ” Musick said. “We’ve been shouting this message for years that not everyone charged with a criminal act needs to be locked up.”

Musick praised the Criminal Justice Coordinating Council, and said judges are beginning to examine their pretrial and sentencing choices.

Those numbers include a lot of people who will not be convicted of any crime, or at least of any crime that would normally include jail time, who are nonetheless going to spend days, weeks, even months in jail because they couldn’t make bail. Some of these people will wind up being acquitted, having their charges dropped, having their charges pleaded down to non-jail offenses, or being convicted and ultimately being sentenced to less time than they served pre-trial. This is the judiciary’s responsibility, and while they are making improvements, they have been responsible for this for a long time. Get enough of them to adopt more sensible practices, or to be replaced by those who will, and Sheriff Garcia won’t need to grovel before Commissioners Court for more jailers, as reducing the numerator in the inmate-to-guard ratio also accomplishes the task. Whether we do this the more cost-effective way or not is all our choice. Grits has more.

Lykos v Anderson

I obviously don’t have a dog in the Republican District Attorney primary fight, but I like a good high-profile political battle as much as the next junkie, so stories about it are interesting to me.

[DA Pat] Lykos argues she is a reformer with three years of improvements under her belt while Mike Anderson, a popular 30-year veteran of the courthouse, is trying to convince voters the machine used to be better run.

“A prosecutor needs to run that office,” said Anderson, who was an assistant Harris County district attorney for 16 years before spending 12 years as a felony criminal court judge.

“It’s an enormous undertaking for anybody,” Anderson said. “It would be very hard for anybody who has never been a prosecutor and never tried a case as a prosecutor to run that office.”

Lykos scoffs at the criticism. She insists that her experience as a former police officer and a former judge lets her put together the big pieces of the criminal justice puzzle.

“We cannot go backwards. Those days are gone,” Lykos said. “We have to work smart, we have to be tough and always fair.”

Like I said, I have no dog in this fight, but at the risk of making Murray Newman‘s head explode, I do think Lykos has been an improvement over Chuck Rosenthal. Might Kelly Siegler have been a similar improvement over Rosenthal? Maybe, though I felt strongly at the time that bringing about change necessarily required a genuine housecleaning. From a crassly political perspective, I preferred to have our candidate C.O. Bradford run against Rosenthal’s top lieutenant than against some outsider. Maybe Mike Anderson would be an improvement over Lykos – maybe the Rosenthal problem was the man himself more than anything else, so that any change would have been sufficient – I have no idea. What I know is that Rosenthal was a clown and an embarrassment, and Lykos, whatever else you may say about her, has not been.

“She is someone who Republican women, who are the heart and soul of the Republican party in Harris County, would die for,” said Harris County GOP chairman Jared Woodfill. “She has earned their respect.”

Woodfill heartily endorsed Lykos.

“She came in to that office at some challenging times and has done a great job,” Woodfill said. “Pat has a very successful record, and the last thing we need is a big primary fight at the top of the ticket.”

I marvel at this, because Democrats would openly revolt if our party chair picked a side in a primary between two candidates of good standing. I can see the merit of Woodfill’s position, though I disagree about the merits of a big primary fight, but we do our business differently, and I prefer it that way.

Republicans will have to decide between the two in April, but there won’t be any confusion about where either stands.

Anderson has attacked Lykos for DIVERT, a program she created that allows the equivalent of deferred adjudication for first offense DWIs, and her “trace case” policy, which lessened penalties for possession of trace amounts of crack cocaine or crack pipes.

Lykos says the trace case policy has lowered the jail population by 1,000 inmates and freed up resources for more severe crimes.

As you know, I agree with Lykos on this. That causes some conflict for me when I think about this politically. On the one hand, I’d rather see Anderson win because I like my opponents to be wrong about important things. On the other hand, I’d rather see Lykos win because we’re all better off when bad ideas get rejected. So yeah, I’ll be staying neutral.