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Kim Ogg

More on Abbott’s stay-in-jail order

Here’s that more detailed Chron story I referenced yesterday. I’m just going to quote the newer information about Greg Abbott’s executive order that attempts to basically stop most releases of inmates from the jail regardless of the coronavirus situation.

The newly appointed monitor over Harris County’s misdemeanor bail protocol, Duke law professor Brandon Garrett, said the decree violated “many state and federal constitutional provisions.”

Alec Karakatsanis, a civil rights attorney who represents thousands of indigent defendants awaiting trial at the lockup on felony charges, called the governor’s stance illegal and perilous.

“The edict is dangerous, unprecedented, chaotic, and a flagrantly unconstitutional attempt to infringe fundamental constitutional rights,” he said. “If enforced it would have catastrophic public health consequences.”

[…]

The governor’s order suspends portions of the Texas Code of Criminal Procedure and statues related to personal bonds, barring any personal bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He also outlawed releasing inmates with prior violent convictions on electronic monitoring.

In a barely veiled reference to the preparations taking place by Harris County Judge Lina Hidalgo, the governor suspended portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. He said criminal court judges who handle misdemeanor and felony cases may still consider such releases on an individualized basis for health or medical reasons proper notice to prosecutors.

Among prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.

Multiple plans for lowering the jail population have evolved in the past two weeks, including an executive order by Hidalgo that never came to fruition and a request by the lawyers who sued the county over its bail practices. District Attorney Kim Ogg also entered the discussion, telling the sheriff and presiding district judge that she wanted to weigh in and expedite releases of low-risk inmates in the “high likelihood” of a federal court order dictating either substantive bail hearings or outright release on personal bonds.

“As the legal representatives of the State of Texas, we also have the duty to be advocates for victims and the community in a full and fair bail hearing related to the proposed release of individuals who do pose a substantial risk to public safety,” Ogg wrote, in the letter obtained by the Houston Chronicle.

Hours before Abbott’s announcement, Chief U.S. District Judge Lee H. Rosenthal convened an emergency hearing by phone to address incomplete plans by plaintiffs in a federal civil rights case to craft the a release order for people accused of some nonviolent offenses, along with lawyers for the sheriff and the county judge.

An official from Attorney General Ken Paxton’s office told the federal judge that Paxton was poised to appeal any order by Rosenthal that called for blanket releases of inmates.

See here for the previous post. The Trib adds on.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Though the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have in recent years had their bail practices deemed unconstitutional for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

According to Abbott’s order, a judge may consider a defendant’s release for health or medical reasons, after the district attorney is notified and there is an opportunity for a hearing.

You can see the executive order here, and a brief analysis of why it doesn’t pass constitutional muster here. Rep. Gene Wu was on a call with Abbott and reports that the Governor is either misinformed or not telling the truth about his own order. The ACLU of Texas has responded to Abbott’s order, and I presume we’ll have some action in the federal court today. I should note that Ken Paxton jumped out in front of this parade ahead of Abbott’s order, which prompted a couple of folks to observe that Ken Paxton is himself under a felony indictment and out free on bail. Hey, irony went into hospice care sometime back in 2002, so just keep swimming. The Texas Observer has more.

2020 primary results: Harris County

Let’s start with this.

Long lines combined with a lack of voting machines turned into frustration for voters at several election sites in Harris County on Super Tuesday.

Margaret Hollie arrived at the Multi Service Center on Griggs Road at 11 a.m. She finished just after 2:45 p.m.

“It was horrible,” she said. “The worst since I’ve been voting. And I’ve been voting for 60 years.”

She decided to stick around and vote at the location in the city’s South Union area. Others did not, opting to find polling sites that were less busy. Under recent changes implemented by county leaders, voters can now cast their ballot at any precinct.

In Kashmere Gardens, at another Multi Service Center, the line of voters stretched from the entrance of the voting room to the exit of the facility.

Bettie Adami was one of about 100 people in the line about 4 p.m. Healthcare, higher paying jobs and raising the minimum wage top the list of her concerns this election season.

She isn’t letting the line prevent her from voting. “I’ll stand as long as I have to to cast my vote,” she said.

[…]

The county’s political parties are in charge of deciding which polling places will be open for primary elections, said [Rosio Torres, a spokesperson for the Harris County] Clerk’s office.

DJ Ybarra, Executive Director of the Harris County Democratic Party , said the decision was made to not include some polling locations in negotiations with Republicans to keep countywide voting in the primary. The parties agreed on the final map of polling locations in January, said Ybarra.

“In that negotiation, we had to come up with what locations we wanted,” said Ybarra. “We wish we could have had more locations, but we had to negotiate and we had to keep countywide voting.

“In the future, we’re going to try our best to get all our polling locations we want earlier in the process, so we’re not put in a position where we don’t have all the locations we want,” Ybarra said.

To sum that up in a couple of tweets:

In other words, there were about twice as many Dems voting yesterday as there were Republicans, but there were an equal number of Dem and Rep voting machines, which is the way it works for separate primaries. Had this been a joint primary as Trautman’s office originally proposed and which the HCDP accepted, each voting machine at each site could have been used for either primary. Oh well.

I had asked if the judicial races were basically random in a high-turnout election like this. The answer is No, because in every single judicial election where there was a male candidate and a female candidate, the female candidate won, often by a large margin. That means the end for several incumbents, including Larry Weiman, Darryl Moore, Randy Roll, Steven Kirkland, and George Powell, some of which I mourn more than others. Alex Smoots-Thomas, who had a male challenger and a female challenger, trails Cheryl Elliott Thornton going into a runoff. I saw a lot of mourning on Twitter last night of Elizabeth Warren’s underperformance and the seeming reluctance many people had to vote for a woman for President. Well, at least in Harris County, many many people were happy to vote for women for judge.

Three of the four countywide incumbents were headed to victory. In order of vote share, they are Sheriff Ed Gonzalez, Tax Assessor Ann Harris Bennett, and DA Kim Ogg. In the County Attorney race, challenger Christian Menefee was just above fifty percent, and thus on his way to defeating three-term incumbent Vince Ryan without a runoff. I thought Menefee would do well, but that was a very strong performance. Even if I have to correct this today and say that he fell just short of a clear majority, it’s still quite impressive.

Commissioner Rodney Ellis easily won, with over 70%. Michael Moore and Diana Martinez Alexander were neck and neck in Precinct 3, with Kristi Thibaut a few points behind in third place.

Unfortunately, as I write this, Democrats were on their way towards an own goal in HCDE Position 7, At Large. Andrea Duhon, who is already on the Board now, was leading with just over 50%. If that holds, she’ll have to withdraw and the Republican – none other than Don Freaking Sumners – will be elected in November. If we’re lucky, by the time all the votes have been counted, she’ll drop below fifty percent and will be able to withdraw from the runoff, thus allowing David Brown, currently in second place, to be the nominee. If not, this was the single lousiest result of the day.

Got a lot of other ground to cover, so let’s move on. I’ll circle back to some other county stuff tomorrow.

Endorsement watch: Ogg and Moore

Two (*) big endorsements on Sunday, in the races for District Attorney and Commissioners Court, Precinct 3. Let’s do the thing.

Kim Ogg for District Attorney:

Kim Ogg

“We are in the midst of righting a lot of wrongs,” Ogg told the Editorial Board during a meeting with all four candidates in the race. “What needs to be done is the prosecution of the officers involved, the reform of the way we prosecute and, eventually, the reform of the way drug cases are investigated.”

That’s a lot of talk of change for an incumbent who has left herself open to attack over her apparent tepidness on bail reform, most notably her last-minute objection last year to the settlement in the lawsuit over misdemeanor cash bail. Two of her opponents — senior prosecutors who left the district attorney’s office last year — have centered their campaigns on arguments that she’s failed to live up to her own reform pledges.

It’s true — Ogg has expressed concerns about the way the bail reform agreement has been implemented. But voters shouldn’t mistake her calls to tap the breaks — even if her foot is sometimes a little heavy — as a disavowal of her record, which is overwhelmingly for change.

During her first term, she has supported bail reform, expanded jail diversion for low-level misdemeanor offenders with mental health issues, and implemented a diversion program for people caught with small amounts of marijuana, cutting pot arrests by more than half and saving the county millions. She was years ahead of other reform-minded district attorneys in America’s big cities, from Dallas to Philadelphia.

I would encourage you to go listen to the interviews I did with the three main DA candidates (Todd Overstreet isn’t running a visible campaign) if you haven’t done so already: Kim Ogg, Carvana Cloud, Audia Jones. The Chron endorsement does a good job of capturing what this race is about, however you feel about the candidates. Kim Ogg has made real progress, not as much as people might have liked or expected and not without some missteps and backsliding, in an office and a culture that was long overdue for that kind of change. Whether you think she can and should have done more, and whether you think she can and should be doing it at a more rapid pace, will inform your vote in the primary.

Michael Moore for County Commissioner, Precinct 3:

Michael Moore

Moore’s attention to detail and practical focus on flood mitigation, infrastructure, traffic, an underfunded hospital district and other challenges in a growing region are why we recommend him for Precinct 3 Commissioner in the Democratic primary.

Moore, 57, whose private sector work includes communications for BP and regional vice president for Texas Central Partners’ high-speed rail, is well-versed in the intricacies of issues and policies that face county government. Thanks to his communications background, he can also explain the stuff in plain English.

White, his former boss, vouches for Moore’s “servant’s heart and personal integrity.” And Moore is trying to prove that White’s brand of bipartisan pragmatism isn’t passé in this increasingly polarized political climate. His pledge to “work with anyone, anywhere to get results” may not charm partisans, but it’s a more productive mentality than sometimes prevails among Democrats on the court these days.

While Moore has insider cred, he pledges to govern with transparency and efficiency. Based on his six-year track record with White, we believe him.

Let me tout my interviews here as well: Diana Alexander, Michael Moore, Morris Overstreet, Kristi Thibaut. The Chron didn’t think Overstreet or Alexander had sufficient relevant experience, and didn’t think Thibaut articulated a good case for herself. You can listen to the interviews and judge that for yourself.

The endorsements we are still waiting for: US Senate, Congress (all races), Railroad Commissioner, Supreme Court and Court of Criminal Appeals, SD13, Tax Assessor, HCDE, and County Commissioner, Precinct 1.

(*) – They also endorsed Brenda Stardig on the Republican side for Precinct 3, and Amy Klobuchar for President, which shocks me not at all.

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.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.

Interview with District Attorney Kim Ogg

Kim Ogg

Hard to believe, but we are one week out from early voting for the 2020 primaries in Texas. It’s been a busy interview season for me, as I’m sure you can imagine. This week we will wrap things up with the highlight race on the Democratic side, the primary for District Attorney. Kim Ogg is serving her first term as Harris County DA after winning decisively in the 2016 blue wave. Ogg began her career in the DA’s office in 1987, serving as a chief felony prosecutor during that time. She was appointed Houston’s first Anti-Gang Task Force Director by Mayor Bob Lanier in 1994, and served as the Executive Director of Crime Stoppers of Houston from 1999 to 2006. She made an unsuccessful run for DA in 2014 before her winning campaign two years later. I interviewed her for each of those, and you can listen to the 2016 interview here. You can listen to this year’s interview right here:

The Erik Manning spreadsheet is back! You can track information for candidates on the Harris County ballot here.

    PREVIOUSLY:

Elisa Cardnell – CD02
Travis Olsen – CD02

Michelle Palmer – SBOE6
Kimberly McLeod – SBOE6
Debra Kerner – SBOE6

Chrysta Castañeda – RRC
Kelly Stone – RRC

Vince Ryan – Harris County Attorney
Ben Rose – Harris County Attorney
Christian Menefee – Harris County Attorney

Ann Harris Bennett – Harris County Tax Assessor
Jolanda Jones – Harris County Tax Assessor

Ann Johnson – HD134
Ruby Powers – HD134
Lanny Bose – HD134

Akilah Bacy – HD138
Josh Wallenstein – HD138
Jenifer Pool – HD138

Sarah DeMerchant – HD26
Lawrence Allen – HD26
Rish Oberoi – HD26
Suleman Lalani – HD26

Rodney Ellis – Commissioners Court, Precinct 1

Diana Martinez Alexander – Commissioners Court, Precinct 3
Michael Moore – Commissioners Court, Precinct 3
Morris Overstreet – Commissioners Court, Precinct 3
Kristi Thibaut – Commissioners Court, Precinct 3

Cite and release

This has been a long time coming.

Sheriff Ed Gonzalez

Harris County law enforcement officials on Tuesday will begin a “cite and release” program that treats some misdemeanor charges like court citations for speeding tickets, just days after the district attorney’s office said it could not fully comply with the initiative.

The program, which applies to six charges handled in Harris County’s misdemeanor courts, comes amid countywide discussions about bail reform and over-incarceration, as well as District Attorney Kim Ogg’s repeated requests that Harris County Commissioners Court fund more prosecutors for her office.

The Harris County Sheriff’s Office is the first policing agency in the area that is reported to be participating in the program approved by a working group that includes judges. After voicing concerns in a letter to the sheriff, Ogg’s office agreed to the new procedures.

Ogg’s office sent the Chronicle a copy of the letter but declined further comment.

Sheriff Ed Gonzalez noted that Harris County is behind the curve on using cite and release, as other Texas counties began employing it after the state Legislature in 2007 authorized such programs. The hope is that fewer bookings will allow deputies to have more time to patrol neighborhoods, while people who are eligible can stay with their families and keep going to work, he said.

“This administrative policy should help reduce our pre-trial county jail population and provide local costs savings to taxpayers,” the sheriff said. “Citations can divert lower risk individuals from detention, reserving limited space and resources for more dangerous individuals.”

The class A and B misdemeanor charges that apply are criminal mischief, $100-$750; graffiti, $100-$2,500; theft, $100-$750; theft of service $100-$750; contraband in a correctional facility; and driving while license invalid.

If a resident is stopped on one of those offenses, the sheriff’s office will run a check for active warrants and contact the district attorney’s office to see if the person is eligible for cite and release, according to an internal memo about the procedures.

Once prosecutors accept the charges, the deputy completes the citation as long as it’s signed off by the defendant. The suspect is given a court date on the spot and then released.

These are exactly the types of defendants who would be at the top of the list for a personal recognizance bond, so it makes sense to treat them this way. I feel like we’ve been talking about this for a long time, including with HPD, but it just hasn’t happened before now. As the story notes it’s happened as a direct result of the 2018 election, as the Democratic misdemeanor court judges were a driving force behind it. This is the moment, and it’s clearly the way to go. And now that the Sheriff’s office has adopted this policy, maybe HPD will follow.

January 2020 campaign finance reports: Harris County

As you know, New Year’s Day brings a new round of campaign finance reports, for all levels of government. I’m going to be working my way through these as I can, because there’s lots to be learned about the candidates and the status of the races from these reports, even if all we do is look at the topline numbers. Today we start with Harris County races, as there’s a lot of action and primary intrigue. With the Presidential primary and of course the entire Trump demon circus dominating the news, it can be hard to tell where the buzz is in these races, if any buzz exists. The July 2019 reports, with a much smaller field of candidates, is here.

Kim Ogg, District Attorney
Carvana Cloud, District Attorney
Audia Jones, District Attorney
Curtis Todd Overstreet, District Attorney

Lori DeAngelo, District Attorney
Mary Nan Huffman, District Attorney
Lloyd Oliver, District Attorney

Ed Gonzalez, Sheriff
Jerome Moore, Sheriff
Harry Zamora, Sheriff

Joe Danna, Sheriff
Paul Day, Sheriff

Vince Ryan, County Attorney
Christian Menefee, Harris County Attorney
Ben Rose, Harris County Attorney

John Nation, County Attorney

Ann Harris Bennett, Tax Assessor
Jolanda Jones, Tax Assessor
Jack Terence, Tax Assessor

Chris Daniel (SPAC), Tax Assessor

Rodney Ellis, County Commissioner, Precinct 1
Maria Jackson, County Commissioner, Precinct 1

Diana Alexander, County Commissioner, Precinct 3
Erik Hassan, County Commissioner, Precinct 3
Michael Moore, County Commissioner, Precinct 3
Morris Overstreet, County Commissioner, Precinct 3
Kristi Thibaut, County Commissioner, Precinct 3

Tom Ramsey, County Commissioner, Precinct 3
Susan Sample, County Commissioner, Precinct 3
Brenda Stardig (SPAC), County Commissioner, Precinct 3


Candidate     Raised     Spent     Loan     On Hand
===================================================
Ogg          106,572    83,276   68,489     385,908
Cloud         33,881    17,382        0      16,889
Jones         49,186    29,177        0      29,973
Overstreet         0     1,250        0           0

DeAngelo         500     2,012        0         500
Hoffman            0    41,089        0           0
Oliver             0         0        0           0

Gonzalez      95,636    47,317        0     317,264
Moore         28,595    15,896        0      12,698
Zamora         4,500    18,177        0           0

Danna         78,820    39,274    7,000       9,857
Day                0         0        0           0

Ryan          33,655    18,779        0     101,039
Menefee      135,579    41,249        0     128,547
Rose          89,476    80,932   20,000      53,341

Nation             0     1,369        0           0

Bennett       20,965     8,734        0      39,845
Jones         16,320     1,250        0      16,320
Terence        1,000     1,400        0           0

Daniel            35         1        0         454

Ellis        122,631   396,998        0   3,881,740
Jackson      110,230    71,241    8,000      19,353

Alexander
Hassan          750      4,442        0           0
Moore       209,391     13,248        0     199,052
Overstreet   17,950      2,025        0      15,925
Thibaut      51,180      4,536        0      45,761

Ramsey      154,315     24,281        0     126,619
Sample       26,624      1,828        0      26,620
Stardig      43,700     39,985        0      75,930

I guess I expected more from the District Attorney race. Audia Jones and Carvana Cloud have raised a few bucks, but nothing yet that would lead me to believe they will be able to effectively communicate with a primary electorate that could well be over 500,000 voters. Kim Ogg is completing her first term, but this will be the third time she’s been on the ballot – there was an election for DA in 2014 as well, following the death of Mike Anderson and the appointment of his widow, Devon Anderson, to succeed him. Neither of those primaries had a lot of voters, but a lot of the folks voting this March will have done so in one or both of the past Novembers, and that’s a boost for Ogg. On the Republican side, you can insert a shrug emoji here. I assume whoever wins that nomination will eventually be able to convince people to give them money. If you’re wondering how Mary Nan Hoffman can spend $41K without raising anything, the answer is that she spent that from personal funds.

Sheriff Ed Gonzalez is the only incumbent here without a serious primary challenger. I’d never advise anyone to coast in an election where they have an opponent, but he doesn’t need to have the pedal to the metal. More than half of the amount Joe Danna raised was in kind, so don’t spend too much time thinking about that.

Both County Attorney challengers have done well, though again the question will be “is it enough?” I actually got a robopoll call the other day for the County Attorney race, but I didn’t stay on the line till the end – they started asking “if you knew this about this candidate” questions, and since they didn’t say up front how long the survey might take, I didn’t want to stick it out. As above, the main challenge for Christian Menefee and Ben Rose is that Vince Ryan has been on the ballot multiple times, going back to 2008. The voters know who he is, or at least more of them know who he is than they do who the other candidates in that race are. That’s the hill they have to climb.

The one challenger to an incumbent who can claim a name ID advantage is Jolanda Jones, who is surely as well known as anyone on this ballot. That has its pros and cons in her case, but at least the voters deciding between her and Ann Harris Bennett won’t be guessing about who their choices are.

I didn’t mention the Republicans running for County Attorney or Tax Assessor for obvious reasons. Chris Daniel could be a low-key favorite to surpass the partisan baseline in his race in November, but after 2016 and 2018, he’ll need a lot more than that.

In the Commissioners Court races, Maria Jackson has raised a decent amount of money, but she’s never going to be on anything close to even footing there. Precinct 1 is one-fourth of the county, but a much bigger share of the Democratic primary electorate. In 2008, there were 143K votes in Precinct 1 out of 411K overall or 35%. In 2012, it was 39K out of 76K, or 51%, and in 2016 it was 89K out of 227K, or 39%. My guess is that in a 500K primary, Precinct 1 will have between 150K and 200K voters. Think of it in those terms when you think about how much money each candidate has to spend so they can communicate with those voters.

In Precinct 3, Michael Moore and Tom Ramsey stand out in each of their races so far. For what it’s worth, the three Dems have raised more (270K to 224K) than the three Republicans so far. I don’t think any of that matters right now. Steve Radack still has his campaign money, and I’d bet he spends quite a bit of it to help the Republican nominee hold this seat.

All right, that’s it for now. I’ll have state offices next, and will do Congress and US Senate later since those totals aren’t reliably available till the first of the next month. Later I’ll go back and fill in the city numbers, and maybe look at HISD and HCC as well. Let me know what you think.

Where the primary action is

It’s on the Democratic side in Harris County. This should come as a surprise to no one.

The crowded Harris County Democratic primary field reflects a new reality in Houston politics: With the county turning an even darker shade of blue in 2018, many consider the real battle for countywide seats to be the Democratic primaries, leading more candidates to take on incumbent officeholders.

“This is the new political landscape of Harris County. Countywide offices are won and lost in the Democratic Primary,” said Ogg campaign spokesperson Jaime Mercado, who argued that Ogg’s 2016 win “signaled a monumental shift in county politics” and created renewed emphasis on criminal justice reform now championed by other Democratic officials and Ogg’s opponents.

In the March 3 primaries, Ogg, Bennett, Sheriff Ed Gonzalez and County Attorney Vince Ryan — all Democrats — face at least two intra-party opponents each, while Democratic Commissioner Rodney Ellis has a primary challenger in former state district judge Maria Jackson.

Excluding state district and county courts, 10 of 14 Harris County Democratic incumbents have at least one primary foe. In comparison, three of the seven county GOP incumbents — Justice of the Peace Russ Ridgway, Precinct 4 Constable Mark Herman and education department trustee Don Sumners — have drawn primary challengers.

At the state level, Republicans from the Harris County delegation largely have evaded primary opponents better than Democrats. All but three GOP state representatives — Dan Huberty, Briscoe Cain and Dennis Paul — are unopposed.

On the Democratic side, state Sen. Borris Miles and state Reps. Alma Allen, Jarvis Johnson, Senfronia Thompson, Harold Dutton, Shawn Thierry and Garnet Coleman each have primary opponents.

Overall, the 34 Democratic incumbents seeking re-election to federal, state and county seats that cover at least a portion of Harris County — not including state district and county courts — face 43 primary opponents. The 22 Republican incumbents have 10 intra-party challengers.

It should be noted that a few of these races always draw a crowd. Constable Precincts 1, 2, 3, and 6 combined for 22 candidates in 2012, 21 candidates in 2016, and 17 this year. Three of the four countywide incumbents – DA Kim Ogg, Sheriff Ed Gonzalez, and Tax Assessor Ann Harris Bennett – are in their first term, as is County Commissioner Rodney Ellis. There are fewer Republican incumbents to target, so Dem incumbents get to feel the heat. The bigger tell to me is that Republicans didn’t field candidates in nine District Court races. As I’ve said ad nauseum, it’s the judicial races that are the best indicator of partisan strength in a given locale.

The story also notes that the usual ideological holy war in HD134 is on hold this year – Greg Abbott has endorsed Sarah Davis instead of trying to primary her out, and there’s no Joe Straus to kick around. Republicans do have some big races of their own – CD07, CD22, HD26, HD132, HD138, County Commissioner Precinct 3 – but at the countywide level it’s kind of a snoozefest. Honestly, I’d have to look up who most of their candidates are, their names just haven’t registered with me. I can’t wait to see what the finance reports have to say. The basic point here is that we’re in a new normal. I think that’s right, and I think we’ll see more of the same in 2022. Get used to it.

Filing update: Focus on Harris County

One more look at who has and hasn’t yet filed for stuff as we head into the final weekend for filing. But first, this message:


That’s general advice, not specific to Harris County or to any person or race. With that in mind, let’s review the landscape in Harris County, with maybe a bit of Fort Bend thrown in as a bonus. Primary sources are the SOS candidate page and the Patrick Svitek spreadsheet.

Reps. Sylvia Garcia and Lizzie Fletcher do not have primary opponents, though the spreadsheet does list a possible opponent for Garcia. As previously discussed, Rep. Al Green has a primary opponent, and Rep. Sheila Jackson Lee has three so far, with at least one more to come. Elisa Cardnell and Travis Olsen have filed in CD02. Mike Siegel and Shannon Hutcheson have filed in CD10, and none of the three known contenders have filed yet in CD22. (Before you ask, no, I don’t know why some candidates seem to wait till the last minute to file.)

In the Lege, the big news is that Penny Shaw has filed in HD148, so the voters there will get their third contested race in a four month time period. At least with only two candidates so far there can’t be a runoff, but there’s still time. Ann Johnson and Lanny Bose have filed in HD134, Ruby Powers has not yet. Over in Fort Bend, Ron Reynolds does not have an opponent in HD27, at least not yet. No other activity to note.

Audia Jones, Carvana Cloud, and Todd Overstreet have filed for District Attorney; incumbent Kim Ogg has not yet filed. Christian Menefee and Vince Ryan have filed for County Attorney, Harry Zamora has entered the race for Sheriff along with incumbent Ed Gonzalez, and Jack Terence, last seen as a gadfly Mayoral candidate in the late 90s and early 2000s, has filed for Tax Assessor; Ann Harris Bennett has not yet filed. Andrea Duhon has switched over to HCDE Position 7, At Large, which puts her in the same race as David Brown, who has not yet filed. Erica Davis has already filed for Position 5, At Large.

In the Commissioners Court races, Rodney Ellis and Maria Jackson are in for Precinct 1; Michael Moore, Kristi Thibaut, Diana Alexander and now someone named Zaher Eisa are in for Precinct 3, with at least one other person still to come. I will note that Precinct 1 Constable Alan Rosen has not yet filed for re-election, but three other candidates, two of whom filed within the first week of the period, are in for that position. Rosen’s name has been bandied about as a possible Commissioners Court challenger to Steve Radack, and if he is planning to jump to that race it makes sense that he’d take his time, since he’d have to resign immediately afterward. I have no inside scoop here, just a bit of idle speculation. There are no Dems as yet for either Constable or JP in Precincts 5 or 8.

This brings us to the District Courts, and there’s some interesting action happening here. There are a couple of open seats thanks to retirements and Maria Jackson running for Commissioners Court. Herb Ritchie is retiring in the 337th; two contenders have filed. One person has filed in Jackson’s 339th. Someone other than George Powell has filed in the 351st, and someone other than Randy Roll has filed in the 179th. I’m not sure if they are running again or not. Steve Kirkland has a primary opponent in the 334th, because of course he does, and so does Julia Maldonado in the new 507th. Alexandra Smoots-Thomas does not yet have a primary opponent.

Fort Bend County went blue in 2018 as we know, but Dems did not have a full slate of candidates to take advantage of that. They don’t appear to have that problem this year, as there are multiple candidates for Sheriff (where longtime incumbent Troy Nehls is retiring and appears poised to finally announce his long-anticipated candidacy for CD22, joining an insanely large field), County Attorney, and Tax Assessor (HCC Trustee Neeta Sane, who ran for Treasurer in 2006, is among the candidates). The Dems also have multiple candidates trying to win back the Commissioners Court seat in Precinct 1 that they lost in 2016 – one of the candidates is Jennifer Cantu, who ran for HD85 in 2018 – and they have candidates for all four Constable positions.

There are still incumbents and known challengers who have been raising money for their intended offices who have not yet filed. I expect nearly all of that to happen over the weekend, and then we’ll see about Monday. I’ll be keeping an eye on it all.

Filing report update

We’re a week out from the official filing deadline for the 2020 primaries. There’s still a lot of known candidates who haven’t filed yet, but I expect there will be a mad flurry of activity this week, as is usually the case. Don’t be surprised if we hear of an out-of-the-blue retirement or two, as that is known to happen at this time as well. I’m going to take a quick look at where we stand now, and will provide other reports as needed before the deadline on Monday. My sources for this are as follows:

The Patrick Svitek spreadsheet.
The Secretary of State Candidate Information page, which is quite handy and reasonably up to date.
Texas Judges, whose provenance is unknown to me, but they have the most information I’ve found about candidates for statewide and Courts of Appeals judicial races.
Jeff Blaylock’s Texas Election Source – I may be too cheap to subscribe, but the free info he includes is always worth noting.

SBOE

We have a third Democrat in the race for SBOE6, Kimberly McLeod. She is Assistant Superintendent of Education & Enrichment at HCDE and a former professor at TSU. She joins former HCDE Board member Debra Kerner (who has filed) and teacher Michelle Palmer (who had not yet filed, at least according to the SOS, as of this weekend).

We have a filing for SBOE5, the most-flippable of the SBOE districts up for election this year, Letti Bresnahan. Google tells me that a person by this name was a Trustee at San Antonio’s Northside ISD (she is not on the Board now). She was elected in 2008, narrowly re-elected in 2012, and I guess didn’t run in 2016; the Bexar County Elections report for May 2016 doesn’t list the NEISD Position 6 race, so who knows what happened. In 2015, she voted to keep the name of San Antonio’s Robert E. Lee High school; it was subsequently changed to Legacy of Education Excellence (LEE) High School in 2017, by which time as far as I can tell she was no longer on the Board. That’s a whole lot more words than I intended to write about her or this race – and mind you, I can’t say for sure this is the same Letti (Leticia) Bresnahan. I noted this because I’ve been keeping an eye on this race – the district was carried by Hillary Clinton in 2016, it was the bluest of the Republican-held SBOE districts in 2018, and the incumbent is a wingnut. So I was gonna write something when a Dem filed, I just didn’t expect it to be this.

State Senate

Someone named Richard Andrews has filed as a Democrat against Sen. Borris Miles. The Svitek spreadsheet has him as a General Election opponent, but his website clearly says “Democrat”, and the SOS has him as a Democrat. He’s a doctor, and that’s all I know about him.

State House

Current SBOE member Lawrence Allen, Jr, who is the son of State Rep. Alma Allen, has filed in the increasingly crowded Democratic primary in HD26. It’s one of the nine GOP-held districts that Beto won in 2018. Rish Oberoi, Suleman Lalani, and 2018 candidate Sarah DeMerchant have also filed.

Travis Boldt has filed in HD29, in Brazoria County. That was one of two near-miss districts (Beto got 47.0%) in which no Dem was on the ballot in 2018; HD32, which does not yet have a candidate filed, was the other.

Sandra Moore, who lost in the 2018 Dem primary to Marty Schexnayder, has filed to run again in HD133.

Ashton Woods has changed the name of his Facebook page to indicate he plans to run in the primary for HD146, currently held by second-term Rep. Shawn Thierry. He has not filed as of this writing.

So far, no one else has filed to run in the primary for HD148, where Anna Eastman is in the runoff for the special election, and has made her filing for 2020.

First Court of Appeals

I hadn’t gotten into the Courts of Appeals in my previous discussions, but especially after the sweep of these races by Dems in 2018 (and not just on this court), they will surely be of interest to multiple candidates.

Veronica Rivas-Molloy, who has officially filed, and Dinesh Singhal are in the race for Place 3 against incumbent Russell Loyd, who was elected in 2014. The Texas Judges website also lists Keith F. Houston as a candidate, but he appears to have decided not to run.

Amparo Guerra and Tim Hootman have both filed for Place 5, which had been held by the now-resigned Laura Carter Higley. There are three Republicans running so far, and there may be another if Greg Abbott appoints someone to fill the still-vacant seat prior to the filing deadline.

14th Court of Appeals

Jane Robinson is the (so far, at least) lone Democrat running for Chief Justice. I saw her at the HCDP Friendsgiving last month but did not have the chance to walk up and say Hi. The position is held by Justice Kem Thompson Frost, who is not running for re-election. Justice Tracy Christopher, who holds Place 9, is running for Chief Justice. She was last elected in 2016, so she would not otherwise be on the ballot. My assumption is that if she wins, she will move over from Place 9, which will make Place 9 vacant, and Abbott will appoint someone who would then run in Christopher’s spot in 2022. If she loses, she’ll remain in her spot and run for re-election (or not, as she sees fit) in 2022.

Wally Kronzer, who has filed, and Cheri Thomas are running for Place 7. Kronzer ran for Place 5 on this court in 2010. Ken Wise, in his first term, is the incumbent.

District courts

I don’t see any primary challengers yet for incumbent Democratic district court judges. I have heard someone is circulating petitions to challenge Judge Alex Smoots-Thomas, which I think we can all understand. I’m not in a position to say anything more than that as yet.

County offices

Audia Jones has officially filed for Harris County DA. Christian Menefee and Vince Ryan have both filed for County Attorney. Michael Moore has filed for County Commissioner in Precinct 3; Kristi Thibaut and Diana Alexander both announced their filings on Facebook over the weekend, but the SOS has not caught up to those filings yet. Bill McLeod, of accidental resignation fame, has filed to win his old seat on County Civil Court at Law #4 back. Incumbent Judge Lesley Briones has not yet filed. We will have a contested primary for at least one of the two HCDE at large positions, as Erica Davis has filed in Position 5; here’s her appointment of treasurer. Andrea Duhon, who had run for a different HCDE position in 2018, has already filed an appointment of treasurer for this race. David Brown is running for the other spot, Position 7, and as far as I know has no Dem opponent as yet.

Now you know what I know. We’ll all know a lot more in a week’s time.

Judge officially approves final Harris County bail settlement

It’s officially finally final and official.

A federal judge has signed off on a historic bail reform agreement for Harris County, setting in place new protections for people accused of minor offenses in the country’s third largest criminal justice system.

The sweeping agreement and consent decree, officially approved Thursday by Chief U.S. District Judge Lee H. Rosenthal, seeks to level the playing field for the thousands of people arrested each year on misdemeanor charges. For years, judges jailed poor people by default while they awaited trial, while those with money to cover bail could walk free and return to their families and livelihoods.

[…]

Rosenthal wrote that her ruling was rooted in extensive legal findings over the past three years.

“No system can guarantee that all those accused of misdemeanors who are released on personal bonds — rich or poor — will appear for hearings or trial, or that they will commit no crimes on release,” Rosenthal said in a 55-page opinion. “No system can guarantee that all those accused of misdemeanors who are detained pending trial — rich or poor — should have been detained. But Harris County … can stop systematically depriving indigent misdemeanor defendants of their constitutionally-protected rights by detaining them simply because they cannot afford to post money bail.”

Her opinion acknowledged the objections brought up by “amici,” or friends of the court, including the state Attorney General’s Office, District Attorney Kim Ogg and County Commissioner Steve Radack, who voiced concerns at the final hearing that the deal limited judicial discretion and did not do enough to ensure the safety of communities.

“The court does not question the amici and objectors’ good faith,” she wrote. “The public safety and public resource concerns they raise are important.

“The proposed consent decree and settlement agreement are approved because these concerns are fully recognized and addressed,” the opinion said.

Harris County Judge Lina Hidalgo issued a statement following the judge’s decision, saying it “puts to rest the arguments used to instill fear regarding the impact of bail reform.”

“We do not have to choose between protecting the constitutional rights of defendants and protecting public safety,” she said. “In fact, by reforming our broken bail system, we are taking a step toward rebuilding trust between our system of justice and the residents it serves.”

Precinct 1 Commissioner Rodney Ellis said: “After decades of harmful injustice and three years of a legal battle waged in defense of our core principles of liberty, equal treatment and due process for all — no matter how much money you have or the color of your skin — Harris County’s oppressive and discriminatory misdemeanor cash bail practices are ending.”

You know the story by now. At this point, we need to focus on making this work as it is supposed to, to ensuring that we are making adjustments to the risk assessment tool as needed, and just generally measuring everything so a year from now we can present some metrics to show how it all has gone. There are still political fights to be had – just ask the people running against Vince Ryan and Kim Ogg, for starters, and the Lege still needs to address bail reform in a meaningful way – and there are still legal fights to be had – the second bail lawsuit, which is about felony defendants, and the Dallas County bail lawsuit, among others – but this was a huge step forward. A copy of the consent decree is here, and a copy of the settlement agreement is here. Kudos to everyone who helped make this happen.

Filing period preview: Harris County

Previously: Congress, Statewide, and SBOE/Senate/House.

For County races, I cannot use the Patrick Svitek spreadsheet, as it doesn’t include local races. I am instead using the Campaign Contribution and Expenditure Reports for Various County Offices link on the County Clerk webpage, as it includes Appointments of Treasurer. I set the filter for a time frame beginning July 15, and including all offices. Not perfect, and may miss candidates who filed Appointments of Treasurer, but it’s close enough. Earlier candidates will have been included in my roundup of July finance reports for county candidates.

So with all that said, here we go. I’m not looking for incumbents’ campaign webpages, we already know about them. I’m trying to identify the party for each of the candidates I found, but some are not easy to determine, so I left them as “unknown”. Feel free to correct me if you know more.

District Attorney

Note: I used some information in this Life at the Harris County Criminal Justice Center post in the following.

Kim Ogg (D)
Audia Jones (D). Has been running for several months.
Carvana Cloud (D). Former division chief within the DAO (see link above).

Mary Nan Huffman (R) Former ADA in the Montgomery County DA’s office, now working for HPOU.

Lori DeAngelo (Unknown) Another former assistant DA (see link above again). I can’t find much else about her.
Todd Overstreet – (Unknown). I have no new information about him since the July post.

Finally, rumor has it that our old buddy Lloyd Oliver is running for DA as a Republican. I don’t see any filings for him so I can’t readily confirm that, but 1) I’m sure he has an appointment of treasurer always on file, and 2) Lloyd Oliver is a barnacle on the body politic, so it pays to always expect something annoying from him.

Sheriff

Ed Gonzalez (D)
Harry Zamora (D). I have no new information on him since the July post.
Jerome Moore (D). Ran in the Dem primary in 2016. No new info on him, either.

Paul Day (R). He is a “Pro-Life, Christian Conservative”, and he ran in the Republican primary for Sheriff in 2008, against then-incumbent Tommy Thomas, getting 17% of the vote.
Joe Danna (R). As noted in July, a multi-time candidate for Constable in Precinct 1.

Lawrence Rush (Unknown). Current employee of the HCSO.

County Attorney

Vince Ryan (D)
Christian Menefee (D)
Ben Rose (D)

Nothing new here, both of these challengers have been running for months. I don’t see any evidence of a Republican candidate for County Attorney as yet.

Tax Assessor

Ann Harris Bennett (D)

Chris Daniel (R)

Daniel is the former District Clerk, elected in the 2010 wave and then un-elected in the 2018 assertion of Democratic dominance. His Appointment of Treasurer was filed on Wednesday but not yet viewable. His Friends of Chris Daniel PAC reported $438 on hand and $25K in outstanding loans as of July.

Commissioners Court, Precinct 1

Rodney Ellis (D)
Maria T. Jackson (D). We know about this one. I could not find any web presence for her – her personal Facebook page still lists her occupation as a Judge – but I did find this Houston Style article about her campaign launch. I will be very interested to see what her January finance report looks like.

Commissioners Court, Precinct 3

Steve Radack (R)
Brenda Stardig (R)

Diana Alexander (D)
Michael Moore (D)
Kristi Thibaut (D)
Erik Hassan (D)
Luis Guajardo (D)

The first three Dems, we know about. Alexander was the first candidate in. Moore is the former Chief of Staff to Mayor Bill White. Thibaut served one term in the Lege in HD133. Erik Hassan was a candidate in the 2016 Dem primary for Precinct 3, losing to Jenifer Pool. Luis Guajardo is a very recent filer whose personal Facebook page lists him as an urban planner. As for Brenda Stardig, soon to be former Council Member in District A, she filed her Appointment of Treasurer on November 8. Chron reporter Jasper Scherer says that Radack is running for re-election, so there’s another contested primary for you. Radack has a pile of cash on hand, and he may have to spend some of it in the next couple of months. As with Maria Jackson, I will be very interested to see what Brenda Stardig’s January finance report looks like.

I’m going to stop here, in part because this is long enough and in part because I’m not prepared to do the same exercise on Constables and Justices of the Peace. Just remember that Beto carried all eight Constable/JP precincts in 2018, so ideally every Republican incumbent should have a challenger, this year and in 2022 as well. I may take a stab at this next week, but for now this wraps up my look ahead at the filing period. I’m sure I’ll have more to say as actual filings pile up.

Last bail lawsuit hearing

At least I assume it’s the last one. I’ve been thinking this was all over but for the formality for months now, so what do I know?

Dianna Williams has witnessed the “collateral damage” of jailing on the fabric of a family. The 61-year-old criminal justice advocate told a federal judge Monday that for generations, her relatives lived paycheck to paycheck and could not afford cash bail when her father and then her brother and her son were held pretrial on low level drug charges.

Mary Nan Huffman offered an opposing take to the judge presiding over a deal upending Harris County money bail for low level offenses. She recounted how her friend was walking with her 3-month-old when a man in a red truck trailed her and later showed up in her yard, masturbating with a knife in his hand. Under the new bail deal, the man would never see a judge and no one would hear that he was a three-time felon who’d been to prison for rape, indecent exposure or kidnapping, said Huffman, a spokesperson for Houston Police Officers’ Union.

Ultimately, the sheriff who oversees the third largest jail in the country sought to assuage fears of constituents on both sides of this contentious issue, telling Chief U.S. District Judge Lee H. Rosenthal the consent decree approved last summer provides fundamental guarantees of justice enshrined in American law and warning against the inclination to let scary scenarios involving particular cases be the foundation of a bail system.

“I don’t think it’s effective for us to develop public policy on outliers,” Sheriff Ed Gonzalez said during the court gathering known as a fairness hearing. “We have to rely on research and facts.”

The hearing attended by six misdemeanor judges who support the historic settlement and three commissioners court members, two of whom oppose it, and about 100 stakeholders lasted three hours, with the judge saying she would consider the input and issue an order soon.

[…]

In a typical class action, a fairness hearing offers class members a chance to express concerns with a settlement. The hearing Monday was unique in that nearly all the speakers were not parties in the lawsuit.

Here’s a preview story of the hearing. I think we all know the basic outline at this point, so all I really care about is when we’ll get the final order from Judge Rosenthal. And then we can relitigate everything in the 2020 elections.

Ogg continues to have problems with the bail settlement

I don’t like this.

Kim Ogg

District Attorney Kim Ogg is rallying police officers across Harris County to show up in federal court en masse to oppose to a landmark bail reform agreement at a final hearing set for this month.

She emailed about 100 police chiefs to invite them to attend an Oct. 28 court proceeding before Chief U.S. District Judge Lee Rosenthal to lend support on an issue she says “endangers the public.”

In addition to recruiting top brass to the hearing, Ogg also requested that her lieutenants be present to support her concerns about portions of the settlement that allowed most defendants arrested on minor offenses to await trial at home without posting up-front cash bail, according to her spokesman, Dane Schiller.

Ogg expressed misgivings about the proposed consent decree approved last summer by Commissioners Court after months of intensive meetings between county leaders, judges and the lawyers for the plaintiffs in the 2016 class action.

Ogg, who is not a defendant in the lawsuit, is among a number of parties, including many from the bail bond industry, who submitted concerns about the settlement in court during the summer.

“The district attorney has always supported bail reform, so that nobody is held just because they are poor, but she also says public safety should always be considered,” Schiller said.

[…]

The county public defender, who has been friends with Ogg since law school, said he suspects Ogg’s approach will be perceived as overkill by Rosenthal, the region’s highest ranking lifetime appointee to the federal bench.

“A courtroom full of police officers is not going to intimidate her,” said Harris County Public Defender Alex Bunin. “She might be insulted that they would do that to her.”

“It’s over the top, and this kind of bravado backfires every time,” Bunin added. He said the majority of the concerns Ogg raised were resolved by a judicial rule passed in January.

See here and here for the background. I agree with Alex Bunin here, this is not going to help and will serve as fuel for Ogg’s primary opponents. The fears being expressed are overblown, and frankly it’s fine by me if the county has to experience a little inconvenience to accommodate a non-violent offender who need assistance getting back to court. As I’ve said before, I’d much rather pay for an Uber for that guy than pay to feed, clothe, and house him for some number of weeks or months. Maybe – stay with me here – we could arrest fewer of these non-violent mostly drug offenders in the first place, which would go a long way towards reducing inconvenience for everyone. In the meantime, the bail agreement is in place and it is going to be the law. Let’s all do what we can to make it work.

One more step towards the bail lawsuit settlement

We’re almost there. I know it feels like we’ve been there for awhile and are just waiting for it all to become official, but there were still a few checkpoints to get through first, and this is one of them.

In a move that signals she will likely approve a landmark bail agreement, a federal judge in Houston issued a lengthy opinion Thursday meticulously addressing concerns raised by outside parties to the proposed consent decree that would govern bail practices in Harris County for the next seven years.

The 55-page document from Chief U.S. District Judge Lee H. Rosenthal is not the norm in that preliminary approvals at this point in most class action suits usually take up half a page, at most two pages, according to lawyers familiar with typical dockets.

In the opinion, the judge addresses whether the deal was properly negotiated, whether it addressed the needs of all parties and whether the solution was adequate given the potential delays, costs and impact on public safety.

Specifically, she said the plan hit on the key factors required: it addressed the constitutional violations, protected poor defendants, safeguarded the public and reduced the chances that defendants would miss hearings.

While atypical, Rosenthal’s comprehensive memorandum and opinion are in keeping with how the judge runs her office, according to a former law clerk who served in the Houston federal courthouse.

“I’d say this is pretty standard for a judge who is thorough to a fault,” the former clerk said. “It definitely signals ultimate approval, but the point isn’t to telegraph.”

The clerk, who asked to remain anonymous, continued, “It’s simply to respond to the filings in a complete and timely way.”

[…]

Two county commissioners who opposed the resolution — Jack Cagle and Steve Radack — submitted their concerns to the judge along with District Attorney Kim Ogg, the Pasadena police chief and several organizations. The objectors included the Harris County Deputies’ Organization, the Houston Area Police Chiefs Association, the Texas School District Police Chiefs’Association, the Professional Bondsmen of Harris County, Equal Justice Now, Crime Stoppers of Houston, Inc. and the Harris County Domestic Violence Coordinating Council.

The parties directly involved in the case then submitted detailed responses to these amicus or “friend of the court” briefs.

Rosenthal said “the amicus briefs and objections do not identify an adequate basis to deny preliminary approval of the proposed settlement and consent decree.”

See here for the background. Ogg, who continues to talk about the imminent settlement in a way that makes one think she’s asking for trouble in her forthcoming primary election, made a statement about how it’s now all up to the judges to make this work. It’s always been all up to the judges, it’s just that in the past they did a lousy job of that. There’s a “final fairness hearing” set for October 21, and I’m guessing we’ll get the officially signed and sanctioned settlement agreement some time after that. I’m ready for this to be over and done.

Ogg’s objections

This kind of came out of the blue.

Kim Ogg

Harris County District Attorney Kim Ogg — who has been aligned with bail reformers during an ongoing legal conflict over the disparate treatment of poor defendants — filed a brief Thursday opposing portions of the consent decree governing the misdemeanor bail system, prompting fellow Democrats on the bench to question why Ogg is raising her concerns at the eleventh hour.

Ogg’s amicus brief landed on the docket this week amid a flurry of eight or nine pleadings and letters from individuals and groups opposing the bail agreement, including briefs by Republican Commissioners Steve Radack and Jack Cagle, who both voted against the settlement and have opposed what they consider “bells and whistles” the parties added which they say extend beyond the scope of the lawsuit.

[…]

The district attorney said in her court filing that the bail deal disproportionately favors the convenience of defendants over the needs of victims, witnesses and other stakeholders.

Ogg also expressed concern that the settlement removes the role of the prosecutor in getting defendants to show up for court and sets sanctions for noncompliance with the new bail process without providing clarity about what’s expected from prosecutors.

“It is fundamentally unfair to expose the District Attorney and her employees to federal sanctions for noncompliance with the proposed settlement absent appropriate clarity on her rights and responsibilities under the Proposed Settlement,” it says.

In addition, the DA objected to the “unfettered and unreviewable discretion” allowed to judges to delay or “outright excuse” defendants from appearing in court, which Ogg says violates Texas law.

Judge Darrell Jordan, the presiding jurist on the County Courts at Law, said he and his fellow judges welcome all criticism, but he said Ogg had ample opportunity to give this input while the settlement was being hammered out.

Jordan said Ogg’s office played an essential role in developing rule 9.1, which allows about 85 percent of defendants to be released on no-cash bond.

“Her former First Assistant Tom Berg was a great asset during the entire process,” Jordan said. “Once he left the office Kim Ogg was a ghost.”

“She has not attended any meetings or sent a representative since Mr. Berg’s departure. I have called, texted and emailed the District Attorney and she does not respond,” Jordan continued. “Government cannot function the way it should when there is no communication.”

Jordan said the judges have set an emergency meeting for the misdemeanor judges to review Ogg’s brief “line-by line” and “address all concerns raised by the District Attorney.”

You can read her filing here. I skimmed through it and it seemed more superficial than substantive, but I Am Not A Lawyer so take that for what it’s worth. Alec Karakatsanis, who is a lawyer and in fact represented the plaintiffs, is quoted in the story saying these are “some minor objections that are not significant issues”, so take that for much more than what my comments are worth. They have until Sunday to respond to this and any other brief. Judge Rosenthal will get the final say, presumably some time in September. Grits for Breakfast has more.

David Temple convicted again

New trial, same result.

A Harris County jury on Tuesday convicted David Temple of murder in the 1999 death of his pregnant wife, opening the door for the former Katy-area football coach to be sent back to prison several years after an appeals court reversed his original guilty verdict because of prosecutorial misconduct.

The panel of seven men and five women handed down the decision following almost eight hours of deliberation and 18 days of witness testimony, including evidence prosecutors withheld during the initial trial and which led to the reversal. In the end, jurors convicted David Temple of murder for a second time, rejecting the defense attorneys’ claim that an alternate suspect, a teenage neighbor, fatally shot Belinda Temple.

As state District Judge Kelli Johnson read the verdict, Temple cast his face downward, sweating and suppressing tears while his family members, including his adult son, burst into a chorus of sobs.

Just feet away, siblings and friends of Belinda Temple let out audible sighs of relief, comforted that the man they have long believed killed her could be locked up once more.

[…]

Testimony in the retrial revolved around two competing timelines of events on Jan. 11, 1999, the day Belinda was found shot to death in her master bedroom closet. David Temple told authorities that he came home from a trip to the park and store with his 3-year-old son and found his wife dead amid an apparent burglary.

Prosecutors argued that the husband — who was in the throes of a secret relationship with a coworker — had executed Belinda with a close-contact shotgun wound shortly after she arrived home from a work and a trip to pick up soup for her sick child. He washed his hands, changed his clothes, and left for the store, before returning home and staging a crime scene, state attorneys said. At some point during his shopping trip, prosecutors said, he ditched the murder weapon, which was never located.

Temple’s defense lawyers contended that their client didn’t have time to murder his wife, given a “narrow window” of opportunity when they were both home alone. They argued that the killing occurred while Temple was at the store, and was carried out by a 16-year-old neighbor who had a bone to pick with Belinda, who was also his teacher at Katy High School.

The neighbor testified during the retrial, telling jurors that he skipped the last class period of the day on Jan. 11, 1999. He said that he spent much of the afternoon on a mostly fruitless quest to find marijuana, and several of his high school friends corroborated parts of his story.

See here and here for the background, and here for the rest of my blogging about this. The re-trial was due to Temple’s attorneys successfully arguing that he had not received a fair trial in 1999 because of misconduct by then-Assistant DA Kelly Siegler. Current District Attorney Kim Ogg recused her office from the do-over, with prosecutors from the Attorney General’s office handling the case. In the end, it seems the jury didn’t buy Temple’s defense. Sentencing is still to come, but I imagine he’ll be spending some more time in prison.

Once more with more prosecutors

This time, it might work.

Kim Ogg

The Harris County District Attorney’s Office is asking county commissioners once again for more prosecutors to handle fallout from the botched Houston drug raid that left a Pecan Park couple dead earlier this year.

The latest $1.96 million funding request that will go to Commissioners Court for consideration Tuesday would add 10 positions to the office, including seven felony chief prosecutors and three investigators housed in the Civil Rights Division.

“What leaders fund speaks to what they think is important and our investigation of the Harding Street shootings is one of the most significant matters we have seen in decades,” District Attorney Kim Ogg said in a statement to the Houston Chronicle. “Community trust depends on us getting to the truth sooner than later; we need to add experienced prosecutors to our Civil Rights Division to handle an investigation this deep and wide.”

[…]

Already, it seems the latest proposed expansion may have more support from the politicians who hold the county’s purse strings. Previously, two Republican commissioners generally voiced their support for adding prosecutors, but this time Democrats look poised to back it as well.

“I’m proud that the district attorney and I have reached common ground in working with an independent consultant to help create a strategy that fosters public confidence in our criminal justice system,” Precinct 2 Commissioner Adrian Garcia said. “This additional resource is critical to supporting our law enforcement officers.”

Similarly, Precinct 1 Commissioner Rodney Ellis — who opposed the request last time around — said he will back it.

“The Harding Street tragedy raises concerns that are bigger than one officer — it’s about an entire system that needs to be held accountable,” he said. “I have worked with the DA to ensure this new request includes robust oversight by an independent third party to identify the failed safeguards that allowed for any miscarriage of justice to occur.”

See here for the previous update. If nothing else, it looks like Ogg took to heart the reasons why her previous asks were rejected. She’s already got the two Republican commissioners in line, so passage appears assured, and it’s just a matter of whether or not Judge Lina Hidalgo makes it unanimous. (Also of note: unlike the previous times, I’ve not gotten an email from the ACLU or TOP opposing the request.) Assuming nothing unexpected happens and this does go through, I’ll be very interested to see what they turn up. I feel confident saying there’s more to that botched raid than we know about right now.

July 2019 campaign finance reports: Harris County

Before we get to the numbers, please read this.

El Franco Lee

The widow of former Harris County Precinct 1 Commissioner El Franco Lee has emptied most of her late husband’s $3.8 million campaign account by donating to community groups and charities.

Ethel Kaye Lee, the campaign treasurer, said Thursday she chose the recipients based on the intentions of her husband’s donors.

“The campaign monies were given for two reasons, for support of existing Precinct 1 programs and keeping him elected, so that’s the formula,” she said.

The account donated $3.01 million to 12 groups, including $500,000 to the Precinct 1 Aquatics Program, $200,000 to the St. Paul Scholarship Foundation and $150,000 to the Julia C. Hester House in Houston’s Fifth Ward, according to the campaign’s July finance report. The report covers the period from Jan. 1 to June 30.

The largest expenditure was $1.5 million to the Precinct 1 Street Olympics, a program Lee founded in 1986. The summer event serves thousands of children annually and includes swim lessons, a basketball tournament and career fair. It also supports the North East Adolescent Program, created by Lee in 1989, which seeks to lower rates of teen pregnancy, birth defects and sexually transmitted diseases in poor Houston neighborhoods.

[…]

The Lee campaign also donated to $200,000 to the Baylor College of Medicine’s teen health clinic and $50,000 to St. Jude Children’s Research Hospital. Two Catholic groups, the Dominican Sisters of Houston and Dominican Friars, Province of St. Martin De Porres, received $50,000 each.

According to the finance report, the campaign had $791,140 remaining on hand as of June 30, which Ethel Kaye Lee has been allocated. Under state law, the campaign has until 2022 to close the account.

See here for the last update, from April. I had noticed all of the activity when I looked at Lee’s report. I’m glad to see this money going to good uses.

Now, on with the show…

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

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

Lloyd Oliver, District Attorney
Audia Jones, District Attorney
Curtis Todd Overstreet, District Attorney

Harry Zamora, Sheriff
Joe Danna, Sheriff

Ben Rose, County Attorney
Christian Menefee, County Attorney

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

El Franco Lee
Diana Alexander, Precinct 3

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

Andrea Duhon, HCDE Position 5, At Large
David Brown, HCDE Position 7, At Large


Candidate     Raised     Spent     Loan     On Hand
===================================================
Hidalgo      318,967   162,328    1,400     192,572
Trautman      11,325     5,778        0      22,450
Osborne        1,000       155        0       1,201
Burgess        9,626     9,681        0       7,263

Ogg          135,860    22,773   68,489     330,425
Gonzalez     178,024    14,344        0     276,714
Ryan          41,925    15,417        0      85,318
Bennett       21,925    19,205        0      37,313

Oliver
Jones         23,669    11,234        0       9,967
Overstreet
Zamora             0     3,026        0           0
Danna        111,268    66,442    3,500      38,338
Rose          22,345     2,257        0      11,605
Menefee       34,869       326        0      34,542

Ellis        715,266   240,145        0   3,823,509
Garcia       552,590   289,169        0     810,149
Radack         5,000    96,250        0   1,634,106
Cagle        398,900   240,512        0     361,787

Lee                0 3,095,767        0     791,139
Alexander      4,210       445        0       1,982

Moore
Dick               0         0        0           0
Cantu          1,250     1,132        0         337
Flynn
Wolfe              0         0        0           0
Norris
Sumners

Duhon            155       262        0         389
Brown            700       406        0         313

County Judge Lina Hidalgo isn’t taking money from vendors, but that hasn’t stopped her from doing well in the fundraising department. At this rate, she’ll be well funded for her first re-election campaign. On the other end of the spectrum…what’s up with Steve Radack? He knows he’s up for election next year, right? I mean, he does have plenty of money, so one low-activity reporting period is no big deal. It still looks weird.

More aware of their ballot status next year are DA Kim Ogg and Sheriff Ed Gonzalez, and both responded as you’d expect. I’ll get to their situations in a minute, but the person I’ve got my eye on at this time is County Attorney Vince Ryan. He’s never been a big fundraiser, but he brings in a few bucks. If there’s a cycle where he’s going to need them, it’s this one.

And that’s because Ryan now has two primary opponents, Ben Rose and Christian Menefee, and while he has a cash on hand lead, it’s hardly insurmountable. In this high-turnout environment that the 2020 primary will be, Ryan’s biggest advantage will be the name recognition he has after 12 years in office. With a half million people or so likely to vote, it will take a pile of money to reach enough of them to make an impression. In a more typical year, you could hit the club and CEC meetings and hope to interact with enough of the old reliables to have a shot. In 2020, you’re going to have to do much broader outreach. That takes money, and it’s not clear that kind of money exists in the County Attorney race. We’ll see.

And speaking of opponents, we have them in the DA and Sheriff races. If your reaction to seeing Lloyd Oliver’s name wasn’t basically this, I don’t know what to say to you. Audia Jones we know about; she doesn’t appear to have gotten much traction yet, but there’s still time. I can’t tell from the limited information I have seen about Curtis Todd Overstreet to discern whether he’s running as a D or an R. I’m sure that will be clear enough soon. I can say the same about Harry Zamora running for Sheriff, I can’t tell his party just yet. Joe Danna is a Republican who has run for Constable in Precinct 1 a couple of times. His amount raised is not as impressive as it looks – about half of the total is in-kind donations for a fundraiser, and nearly half of the actual cash he got was a single $25K donation from Janice McNair.

Beyond that, not much we didn’t already know. I’m sure there will be a lot more raised in Commissioners Court Precinct 3, and for sure there will be more candidates. At some point I need to take a closer look at the Constable and JP races, because those are another good source of Dem takeover opportunities. For now, this is where we are.

David Temple re-trial is now underway

I continue to be fascinated by this.

It’s 1999 in Katy, Texas.

A seemingly perfect couple is falling apart at the seams. David Temple, a high school football coach, is having an affair with a beautiful teacher on campus. His wife, a beloved special education instructor, is becoming anxious. She’s also eight months pregnant.

It was an act of disloyalty, David Temple’s attorneys conceded with opposing state prosecutors. The legal parties disagree, however, on the events of Jan. 11, when Belinda Temple was found shot to death in the closet of her master bedroom.

Lawyers began to reconstruct the murder of Belinda Temple for Harris County jurors on Monday, launching testimony for her husband’s second criminal trial in 12 years. Unlike the first trial, when jurors found David Temple guilty in the killing – a decision that was later overturned by an appeals court – attorneys were tasked with making the panel understand a story from another era.

“We’re going to go back in time,” David Temple’s attorney, Stanley Schneider, began his opening argument on Monday. “We’re going to hear a story of betrayal, two betrayals.”

The lawyer told jurors that while the defendant was unfaithful to his wife, law enforcement also betrayed citizens by operating with “tunnel vision” in the case, which rocked the Katy area in the early 2000s and has maintained a hold in the county ever since.

[…]

“There was only one person on this Earth who had the motive, the means and the opportunity to cause her death,” said Lisa Tanner, a state prosecutor re-trying the case in lieu of the Harris County District Attorney’s Office, which recused itself after the initial verdict was reversed. Investigators didn’t charge anyone with the crime at first but had questions about Temple’s account, Tanner said. The family’s dog was aggressive and made it difficult for police officers to even gain entry into the yard, making them wonder how a burglar could have made it past. The break-in also seemed staged, Tanner said, as evidenced by the location of broken glass on the floor.

Surveillance videos located Temple being where he said he was on two instances, but the videos are separated by a nearly 45-minute gap, Tanner said.

See here for the background and here for all posts. Again, I don’t have anything to add. We just don’t see many re-trials like this, especially in cases where the original prosecutors had been found to have withheld possibly exculpatory evidence. We’ll never know the answer to the questiof what might have happened if they had played by the rules back then, but we’ll see what happens now that this evidence is known to all. I’ll be keeping an eye on this.

Still no more prosecutors

I remain fascinated by this dynamic.

Kim Ogg

Harris County Commissioners Court on Tuesday rejected District Attorney Kim Ogg’s request for more staff to handle fallout from the Houston Police Department’s botched Pecan Park drug raid, the second time this year commissioners have turned down Ogg’s push for more prosecutors.

The court voted 3-2 along party lines after a feisty debate involving the court’s reform-minded Democratic majority, officials from Ogg’s office and the outnumbered conservative commissioners. In the end, Commissioners Rodney Ellis and Adrian Garcia joined County Judge Lina Hidalgo in turning down the request.

Added to the court’s agenda late Friday, Ogg’s request would have granted the district attorney’s office 10 new positions — seven felony chief prosecutors and three investigators — to handle what officials in Ogg’s office characterized as an overwhelming caseload aggravated by the Jan. 28 Harding Street raid.

The court’s decision came a day after HPD agreed to give prosecutors thousands of pages of records relating to their use of confidential narcotics informants, avoiding a legal showdown that loomed after prosecutors from Ogg’s office threatened to issue grand jury subpoenas to get the records.

Instead of granting Ogg more staff, Hidalgo, Ellis and Garcia voiced support for an external review by an independent third party. They also cited a Chronicle report that raised questions about caseloads and Ogg’s push for more than 100 new lawyers earlier this year, which the court also rejected.

[…]

In a statement, Ogg said her office “remains dedicated to fully investigating the Harding Street shootings” and said the shooting victims’ family members “and our entire community deserve to know the truth sooner, not later. Unnecessary delay creates hardship for everyone associated with this tragedy. If police misconduct led to the wrongful convictions of anyone, then every extra day served in the penitentiary waiting for justice increases the potential financial liability for Harris County taxpayers.”

Ellis, a longtime criminal justice advocate, told officials from the district attorney’s office that he did not feel comfortable receiving Ogg’s request late Friday, and urged King to meet first with an independent prosecutor before having commissioners vote on additional staff.

Hidalgo suggested that Ogg’s request was a reaction to coverage of the botched raid, telling King that Commissioners Court members “don’t write budgets based on headlines.”

See here for more on the first time Ogg asked for more prosecutors, here for more on that Chron story about caseloads, and here for more about the late ask for more prosecutors this time around. I can think of three things to say. One is that Kim Ogg should listen to Rodney Ellis and consult with someone outside Harris County about their staffing needs before taking any further action. Two, that consultation should include reviewing and revising those numbers the Chron cited, if only to present an alternative report that conforms to the specifications cited. And three, one way or another she needs to build or rebuild trust between her office and the Democrats on Commissioners Court, because she sure isn’t getting the benefit of the doubt from them. The campaign ads for her primary opposition are being written for them.

David Temple re-trial starts

The beginning of the next chapter in a long story.

For the second time in 12 years, a former Katy-area football coach is standing trial in the murder of his pregnant wife, seeking exoneration after prosecutorial misconduct caused his first conviction to be reversed.

David Temple’s return to court takes place almost 20 years after his wife’s death, which he has insisted was the result of a botched break-in at their home. The murder and trial in 2007 became drew national attention and the case has remained controversial ever since.

Jury selection began Thursday and will continue this week, with testimony due to begin next month. State District Judge Kelli Johnson, special prosecutors from the Texas Attorney General’s Office and defense attorneys are choosing from a pool of 240 potential jurors.

The amount of time that has lapsed usually benefits the defense, said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston. It remains to be seen what evidence withheld from the first trial will be presented.

“We probably shouldn’t expect any surprises,” she said. “The question is how much the prosecutors’ case has degraded over time.”

See here for all the background I have on this. The case is being prosecuted by a lawyer from the Attorney General’s office, as DA Kim Ogg recused her office due to the allegations of misconduct against the office from the past. Suffice it to say that this case is a hot potato, and people have strong feelings about it and about David Temple. I’m just interested in seeing how it plays out this time around.

On prosecutor caseloads

I’m still thinking about this.

Kim Ogg

When a line of prosecutors stepped up to the microphone at Harris County Commissioners Court in February, they told tales of long hours, endless to-do lists and bloated caseloads well into the triple digits.

Their impassioned pleas and barrage of data were part of the push by the Harris County District Attorney’s Office for an unprecedented $21 million expansion that would add more than 100 lawyers to its staff.

But despite a weeks-long campaign, District Attorney Kim Ogg’s budget request failed. Now, four months later, records obtained by the Houston Chronicle and The Appeal indicate that the attorney caseload figures used to justify the request appear to overstate the office’s workload.

The data presented to commissioners and the public did not reflect that about two-thirds of the felony trial bureau attorneys consistently handle a smaller number of complex cases. Instead, it frequently presented the caseloads of the remaining third of the attorneys — those who handle over 900 cases on average — as representative of the whole trial bureau. The office also counted every charge in an arrest as a separate case and included more than 200 cases put on hold after defendants had not yet been arrested or had fled after violating the conditions of their bonds.

Based on the numbers provided by the DA’s office, an average caseload for “felony two” and “felony three” prosecutors combined would be less than 600, if all positions were filled in each court — and would be even lower if chiefs were included. Exact staff assignments that month were not released with the data.

[…]

Four members of the Commissioners Court—including all three Democrats who voted against the budget request in February—did not comment on the caseload figures.

But Commissioner Steve Radack, a Republican who offered staunch support for Ogg during the budget cycle, said that he did not feel the DA’s office misrepresented data and reiterated his concern about the county’s refusal to fund Ogg’s request for more prosecutors.

“It’s extremely unfortunate that she didn’t get it,” he said. “Frankly, it’s a misjustice.”

During budget discussions in February, County Judge Lina Hidalgo — the Democrat who heads up Commissioners Court —questioned whether prosecutors could simply lower their caseloads by charging fewer people and leaning more heavily on diversion alternatives.

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

Though Adam Gershowitz — a William & Mary Law School professor who co-authored a 2011 study on district attorney caseloads — raised concerns about the representations in the data, such as the inclusion of bond forfeitures, he stressed that too few prosecutors can have a negative effect on the legal system, leaving people waiting behind bars as their cases get reset instead of resolved.

“We could have debates about if (prosecutors) should charge less and maybe they should,” he said. “But they are overburdened and it’s bad on so many levels when the district attorney’s office is overburdened.”

There’s a lot more, so read on for the methodology and the questions about how cases were counted. One issue was with classifying all types of prosecutors as having similar workloads even though one group has many more cases than the others, and classifying things as active cases that aren’t really. The explanations for why things were counted as they were don’t really make sense. Even with that, there’s support – not unanimous by any stretch, but it’s there – for more prosecutors, and for managing caseloads. Maybe if we can all agree on what the case numbers actually are, we can better agree on what the number of prosecutors should be.

Lineup shuffling at the DA’s office

This was a surprise.

Kim Ogg

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

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

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

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

[…]

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

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

Some local attorneys chalked up the departures to leadership issues.

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

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

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

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

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

Best of luck to David Mitcham.

County brings charges related to ITC fire

Bring it on.

Kim Ogg

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

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

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

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

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

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

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

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

[…]

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

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

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

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

Prosecuting polluters

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

Kim Ogg

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

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

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

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

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

[…]

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

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

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

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

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

Ogg hires Bradford

A familiar face for the DA’s office.

C.O. “Brad” Bradford

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

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

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

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

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

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

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

Marijuana diversions

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

Kim Ogg

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

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

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

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

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

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

[…]

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

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

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

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

January 2019 campaign finance reports: Harris County

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

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

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

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

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


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

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

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

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

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

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

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

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

Ogg’s second ask

We’ll see how this goes.

Kim Ogg

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

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

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

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

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

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

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

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

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

Commissioners Court rejects Ogg’s request for more prosecutors

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

Kim Ogg

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

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

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

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

[…]

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

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

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

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

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

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

And speaking of next year:

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

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

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

How many prosecutors do we need?

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

Kim Ogg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Bail lawsuit 2.0

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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