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February 16th, 2020:

Weekend link dump for February 16

If you’re a fan of Lost and some other shows, you’ll be able to stream them for free soon.

“The New Majority Behind Sex Work Decriminalization”.

Finally got around to reading Diana Moskowitz’s story about the Netflix show Cheer and the uncomfortable truth about concussions in cheerleading. It’s worth your time, whether or not you watch that show.

“These folks are essentially asking the president to hate their enemies for them so that they can remain true to Jesus’s commandment to love their enemies.”

Really, almost any alternate primary system would be better than the one we have now.

RIP, Bob Boykin, who has served as the voice of Big Tex from the Texas State Fair since 2012.

All the EGOTs, including those who got them on technicalities.

Four words: Pablo Escobar’s cocaine hippos. You’re welcome.

“The semiannual national tradition of staying up a few hours past bedtime to know who will control our government is over. From close races to voting by mail to human error, it’s becoming clear that counting votes no longer fits neatly into prime-time television windows. Reporters and politicos should prepare to practice patience when handling and digesting the results.”

“I think he feels like the chains are off now. It’s like things have taken a turn. The gloves are off. And everything that used to be hush hush is now just… out in the open.”

“Pulling Liu’s name from the nomination to the Treasury position doesn’t just punish her for failing to give Trump’s associates the kid-glove treatment they deserved. Pulling her name also keeps her from giving public testimony, either on the kind of sentence Stone and Flynn deserved or on how she feels about the actions that have been taken toward her former office and former colleagues.”

RIP, Paula Kelly, dancer and Emmy-nominated actor for her role on Night Court.

“Was The Conners even the right show to choose for this type of live episode? The utter disinterest of most of these characters was so severe that it arguably defeated the entire purpose of the episode. Maybe black-ish would have been a better fit.”

“McClatchy Co., one of the nation’s largest newspaper publishers, filed for bankruptcy protection Thursday, another harbinger of America’s deepening local news crisis.”

“This is precisely what Vindman did. He did not go to the press, which might have been morally justified but not prescribed by military training. Vindman saw something he believed was illegal and reported it to White House lawyers. That is precisely what they’re trained to do. Later, he received a congressional subpoena to provided testimony and he complied with that subpoena, which is literally what you are supposed to do and indeed must do. We are far into the legal-moral wilderness in which we now seem to see subpoenas as suggestions or requests.”

RIP, Paul English, longtime drummer for Willie Nelson.

RIP, Joseph Shabalala, founder of Ladysmith Black Mambazo.

RIP, Clayton Williams, Texas oilman and onetime candidate for Governor, who lost to Ann Richards.

RIP, Katsuya Nomura, Japanese baseball legend.

Judicial Q&A: Cheri Thomas

(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. This is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates.)

Cheri Thomas

1. Who are you and what are you running for?

My name is Cheri Thomas. I am running to be the Democratic candidate for Justice of the Fourteenth Court of Appeals, Place 7. I am a 15-year lawyer with significant appellate and litigation experience. My husband, Lewis Thomas, is a criminal defense attorney. Together, we have three amazing daughters and one fuzzy Samoyed.

2. What kind of cases does this court hear?

The Fourteenth Court of Appeals is an intermediate appellate court composed of nine justices who hear appeals and original proceedings. The Fourteenth Court has jurisdiction over both civil and criminal appeals from lower courts in ten counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington.

3. Why are you running for this particular bench?

In 2017, I applied for and was selected to be a staff attorney for the Fourteenth Court of Appeals, the same court for which I am now running. In that position, I worked on over 50 civil and criminal appeals, reviewing the record, conducting legal research, and drafting recommendations on various legal matters for the court’s consideration. I know how the court works, and I know what it takes to review appeals accurately and efficiently.

The 2018 election brought new justices to the court, with fresh perspective and a variety of backgrounds. Because the court reviews a wide variety of legal subject matters, justices with different backgrounds act as resources to one another in cases that touch upon their experience. On the Fourteenth Court of Appeals, many of the new justices have experience in criminal law and experience in small firm or solo civil practice. My experience working on complex civil matters in litigation and on appeal will serve as a helpful and necessary resource, balancing the variety of experience on the court.

4. What are your qualifications for this job?

In the last few years, I have worked on more appeals than all my primary opponents combined during the same time period. Not only do I have significant appellate experience, I have significant trial experience. I practiced civil litigation at Baker Botts, LLP, working on a wide variety of civil trial matters, including contract, employment, securities, toxic tort, and personal injury matters in state and federal courts. I then joined Stuart PC, where I represented clients in civil and appellate matters, in state and federal courts all over the country. In 2016, I became a Partner at Stuart PC. I have managed cases at all stages of litigation. My experience as a litigator will give my appellate decision-making depth.

I also clerked for a federal judge. After graduating with honors from the University of Texas School of Law, I secured a federal clerkship working with the Honorable Jorge Solis of the United States District Court for the Northern District of Texas, where I had the opportunity to work on numerous civil cases involving various subject matters.

5. Why is this race important?

Except for death-penalty cases, all cases appealed from district and county courts in the ten counties listed above are considered by the First or Fourteenth Courts of Appeals. Intermediate appellate courts like the Fourteenth Court are often the last courts to review these appeals. The Fourteenth Court must review practically every appeal that comes before it whereas Texas’s highest appellate courts, the Texas Supreme Court and the Court of Criminal Appeals, consider a limited number of appeals.

6. Why should people vote for you in the primary?

I understand that the court affects real people and real families. I am one of eleven children in a blended family. We have had our own unique set of struggles, and we have experienced struggles that most everyone has experienced: divorce, cancer, death. Voters can count on me to care.

My education and experience have given me the skills I will need to be an excellent Justice: good judgment and the ability to perform rigorous, meticulous legal analysis. I am the only candidate in my race that attended a top-ranked law school or graduated with honors. I am the only candidate that has worked at a leading international law firm or made partner at a law firm. I am the only candidate that has worked in an appellate court (or any court). I was named a “Rising Star” by the Texas Super Lawyers magazine five times, and I was recently elected as a Fellow to the Texas Bar Foundation. Texans are entitled to qualified, fair, and impartial justices. If elected, I will serve honorably. I will work hard, make well-reasoned decisions, and I will treat everyone with fairness and respect.

How should we police the police?

This article raises a number of interesting questions.

Kim Ogg

A quarter of the 60-plus law enforcement agencies operating in Harris County have refused to sign agreements to help local prosecutors track problem cops.

Under those agreements, all signed since District Attorney Kim Ogg took office three years ago, 46 agencies have promised to voluntarily turn over information about potentially untrustworthy or unreliable officers. But 17 other agencies declined to sign, a move that forces prosecutors to spend time getting the information through subpoenas and can potentially drag out the resolution of cases.

The Houston Police Department, the Texas Department of Public Safety and Metro Transit Police are among those that signed memoranda of understanding, but all of the county agencies — including all eight constable precincts and the Harris County Sheriff’s Office — declined to sign.

“Based on the County Attorney’s advice, the sheriff’s office has joined with other Harris County law enforcement agencies that are unable to sign the district attorney’s proposed memorandum of understanding at this time,” Sheriff Ed Gonzalez said in a statement to the Houston Chronicle, adding that his agency still “fully cooperates” with prosecutors by “providing all legally required information concerning all pending cases being prosecuted.”

A county attorney’s office spokesman declined to explain why lawyers told agencies not to sign the agreement, saying the office was “not comfortable” commenting on legal advice given to clients.

To Ogg, that’s all far from ideal: Without an agreement in place, her office must send out subpoena orders to make sure agencies turn over everything.

“It’s a great deal of added work,” Ogg said. “I just don’t think this (agreement) is anything that law enforcement agencies should fear.”

Long-time local defense lawyer Patrick McCann agreed that it was a “pretty fair point” that issuing added subpoenas could be a significant burden for prosecutors, and raised concerns about some agencies’ refusal to enter an agreement.

“It is absolutely indicative of the culture of hiding the ball,” he said.

[…]

The three-page agreement asks agencies to tell the DA’s office whenever a potential police witness is charged with or investigated for a crime, relieved of duty or suspended for misconduct allegations, taken off casework, determined to be untruthful through an administrative investigation, or found guilty of misconduct that could call into question their integrity. Getting agencies to sign the agreement, Ogg said, would reduce work time for prosecutors and ensure that they get all the information they need to turn over to the defense.

“We rely upon the agencies to give us the information that we would need to comply with disclosure (requirements),” Ogg said, “and instead of just blindly relying, we’ve asked them to sign written memorandums of agreement.”

To defense lawyers like McCann, the efforts to create a database and get law enforcement on board seem “laudable,” but he pointed out that ultimately it’s up to the DA’s office as to whether or when to turn that material over. “They’re still trying to keep a stranglehold on the information,” he said, “and they’re terrible about timeliness.”

So first and foremost, why is it that the County Attorney advised the Sheriff and the Constables not to sign this MOU? I would definitely have asked this question when I was doing County Attorney interviews if I had known about this. This arrangement has been in place for five years, though it started with just an informal agreement with HPD. Similar formal agreements exist around the country. It’s certainly possible there have been problems with these things in other places, but what about this particular MOU is troubling to the County Attorney? Surely there’s a way to resolve this. I’d like to understand more about this.

The information gathered via this agreement is compiled into a database, which is not publicly disclosed by Ogg. I can understand that – there are privacy concerns, the unions would surely put up a fight, and the possibility exists that a cop could get on this list as a form of retaliation by their department. One might also argue that a cop should be eligible to come off that list after a certain period of good behavior, and that a cop might have some process to challenge their placement on that list. I also understand the argument for making it public. There’s an awful lot of secrecy that surrounds law enforcement agencies, and if we’ve learned one thing in recent years it’s that such secrecy is toxic. I got an email from a person at The Justice Collaborative a little while ago, sending me their documentation about where Kim Ogg and the two main challengers stand on a variety of issues. They had all been sent a questionnaire, and I was given the responses sent by Audia Jones and Carvana Cloud; Ogg did not respond but where her position was known via public statement or her past record, it was noted. The issue of maintaining a disclosure database and making it public was included in the questionnaire – Jones supported having a public list, Cloud said she would not make it public, matching Ogg’s position. I don’t know enough right now to know how I feel about this, but I wanted to share that much with you.

Anyway. Having this arrangement is a good thing. Getting all 63 law enforcement agencies for Harris County on board should be a priority, with the non-participating agencies made known. Whatever is preventing the HCSO and the Constables from joining needs to be resolved. That can and should be a job for all of the relevant elected officials.

Endorsement watch: Supreme Court and SD11

The Chron’s endorsement process has been a bit haphazard this season – there are times when it looks like they’ve got a theme going, then they deviate from it in some head-scratching way that makes it hard for me to do these posts in a coherent manner. They gave us three endorsements on Saturday, two from Supreme Court races and the SD11 race, so I’m just going to roll with it and give them all to you here.

Susan Criss for SD11:

Susan Criss

Within hours of the 2005 Texas City Refinery explosion that killed 15 workers, Judge Susan Criss of the Texas 212nd District Court in Galveston County began meeting with lawyers representing victims and BP to begin handling what would eventually number 4,005 settled claims. After Hurricane Ike in 2008, Criss again oversaw a massive number of disputes over insurance claims even as she struggled to repair her own flooded home.

As a result of her judicial experience, and time as a criminal defense lawyer, Criss has an exceptionally deep understanding of how Texas laws can be improved. She is bursting with ideas for criminal justice reform, mitigating flood damage and making the workings of the Legislature more transparent. We believe all this adds up to make her an extraordinary candidate for the Texas Senate and Democrats’ best choice for Senate District 11 in the March 3 primary.

No argument from me. Susan Criss is a super candidate, and her opponent in the primary doesn’t appear to be running much of a campaign.

Larry Praeger for Supreme Court, Place 6:

Houston lawyer Kathy Cheng sees her race for a seat on the Texas Supreme Court as a prime opportunity for voters to break up what many see as a monoculture among the nine justices currently sitting on the state’s top civil court. There are six men and three women. Of them, only one justice — Eva Guzman — is Hispanic. There are no African-Americans, no Asian Americans and no Democrats, either.

Cheng says her experience as an immigrant, a woman, and a person of color equips her to see the world — and where the law fits into it — with more nuance and depth than her opponent, in part because he is white.

“If you don’t experience, say, racism in your own life, then you won’t have as deep, or as broad, an understanding of what that experience is like or what it means,” she said, describing the extra awareness she believes she’d bring to her role on the bench.

We agree with Cheng that this court could use a greater dose of diversity — and not just along racial lines. More variety in life experience, in legal practice and, yes, political ideology would be welcome. After all, how can judges apply the law to the facts of daily life in legal disputes without ready antennae capable of reading life in all its variegated nuance?

Cheng goes too far, however, to suggest that a vote for her opponent, Larry Praeger of Dallas, would be a missed opportunity to bring diversity of any kind to the court. Praeger, a former prosecutor who has built up his own mostly family law practice over 20 years, would also bring a radically different perspective to the court.

Cheng ran for this same Supreme Court position in 2018, losing to Jeff Brown, who has since stepped down, thus opening the seat and necessitating its spot on the ballot again. I don’t know much about Praeger. Both have received some endorsements, according to the Erik Manning spreadheet.

Peter Kelly for Supreme Court, Place 8:

Justice Peter Kelly of the 1st District Court of Appeals in Houston is our choice between two very qualified candidates in the Democratic primary for Place 8 on the Texas Supreme Court.

Both Kelly and his opponent, Justice Gisela Triana of the 3rd Court of Appeals in Austin, have served a little over a year as appellate court judges — so it is their experience prior to their election in 2018 that is the best gauge for voters in assessing what kind of Supreme Court justice they will make. And on that basis, we find Kelly’s decades-long career as an appellate lawyer, one who has argued roughly 30 cases before the court he now wishes to join, a stronger indicator of success than Triana’s impressively diverse career as a trial court judge.

[…]

Democrats are lucky to have two qualified choices in this race, but we urge them to vote for Kelly.

Not much to add here. Either candidate would have to be replaced on their current bench if they win in November, so Greg Abbott will get to appoint someone. That’s the price we pay for having candidates who have previously won elections.

Endorsement watch: For Menefee

We have our first major endorsement against an incumbent as the Chron recommends Christian Menefee for County Attorney over Vince Ryan.

Christian Menefee

Harris County Attorney Vince Ryan’s decision to spend millions of dollars and waste precious legal resources to prolong the defense of an unconstitutional bail system raises serious questions about his judgment.

That Ryan still contends that the bail process was constitutional demands change.

This is a large part of why we recommend civil litigation attorney Christian Menefee in the March 3 Democratic primary for the job Ryan has held since 2008.

We were also impressed by promises made by Menefee, 31, to bring added energy and fresh perspective to the part of the job that goes beyond serving as a lawyer to county officials and judges. The county attorney also is responsible for using civil enforcement to protect neighborhoods, clean up the environment and shut down illegal enterprises.

“We need a relentless advocate who’s going to fight for the people of Harris County, all the people,” Menefee said in an interview with the Chronicle Editorial Board.

[…]

“I have great respect for Judge Rosenthal, but her finding of an unconstitutional system was, quite frankly, not something we agreed with,” Ryan told the Editorial Board, a stand that puts him in conflict with the courts and a growing body of legal reformers locally and across the country.

My interview with Vince Ryan is here, my interview with Christian Menefee is here, and my interview with Ben Rose is here. The Chron did endorse some challengers in judicial races, but this is a more significant decision. I’ve been saying for a long time that the bail lawsuit was going to be the main factor in this race, and however you feel about Vince Ryan – as I have said, I think he has been a pretty darned good County Attorney overall – Ryan has had to answer for this, and his answers have not been great. I don’t understand why the Chron didn’t stick to their position of strong support for bail reform in the primary between Judge George Powell and challenger Natalia Cornelio, but they are being consistent here. Again, I don’t know what the effect of the expected high turnout for the primary will be. I do expect that this issue has resonated with the Democratic electorate, but I don’t know how deep that goes.