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pre-trial diversion

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.

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.

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.

Back to Buzbee

Looks like we’re not done with this yet.

Kim Ogg

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

More on the Buzbee DUI saga

This just keeps getting weirder.

Devon Anderson

“It appears to have been an under-the-table deal with Devon Anderson,” said Tyler Flood, the president of the Harris County Criminal Lawyer’s Association. “I already have clients calling me saying they want the ‘Tony Buzbee deal.'”

Flood and other defense lawyers have questioned the treatment Buzbee received from Anderson and the judge presiding over the case.

[…]

A request to the district attorney’s office for a copy of the pretrial diversion contract, which outlines conditions and consequences of failing to meet those conditions, was sent to the office’s general counsel, who said lawyers for Buzbee have objected to its release. Such contracts generally are publicly available. The office of general counsel said Buzbee’s lawyers have informed it that they will seek an order from the Texas Attorney General’s Office forcing the district attorney to withhold the contract.

[…]

Another reason this case and its resolution is unusual is that the judge presiding over it is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. County Court-at-Law Judge Bill Harmon is opposed to any DWI pretrial diversion program and often cites Harris County’s record number of drunken-driving fatalities as the reason.

When a DWI case eligible for the pretrial diversion program lands in his court, it is often transferred to a different court. That did not happen in Buzbee’s case.

Earlier this week, Harmon acknowledged that he signed the dismissal forms and said he had not approved any diversion for DWI suspects. He said he would continue to refuse to participate in the program.

It’s those inconsistencies that bother Flood and other members of the Harris County Criminal Lawyers Association.

“Our target is not Tony Buzbee. That’s not what HCCLA is about. He hired good lawyers and got a good result,” Flood said. “Our problem is the appearance of impropriety between the district attorney and the judge.”

The deal Buzbee was able to obtain from Anderson was extraordinary, Flood said.

“He’s the only person in the whole county who is not excluded from filing for an expunction immediately after his case is dismissed on a DWI on a pretrial intervention.”

See here for the background. It’s weird enough that any of this happened, but it’s possible to imagine that there’s nothing untoward about any of it, it was just maybe handled in a clumsy fashion. But for Buzbee’s attorney to then file to keep the normally-public pretrial diversion contract under wraps, I mean that’s like putting up a giant blinking neon sign saying “THERE IS SOMETHING SUSPICIOUS HERE THAT WE DON’T WANT YOU TO SEE”. Under no circumstances should that file be withheld from public scrutiny. Let’s make the facts known, and then we can see if there’s something that requires a response.

Do the words “appearance of impropriety” mean anything to you?

Seriously?

Devon Anderson

Outgoing Harris County District Attorney Devon Anderson personally has dismissed the drunken-driving case against prominent Houston lawyer Tony Buzbee.

Buzbee, who was arrested on March 31, had his case dismissed Dec. 9, after completing “pretrial intervention” a type of informal probation that, if successfully completed, means a case will be tossed. It is common among first offenders, especially shoplifters or other nonviolent crimes.

On Monday, Anderson stood by her decision and issued a brief statement: “Based on the circumstances of the case, this was the right thing to do. He qualified for pretrial intervention and completed all of the requirements typically mandated for a first offender DWI defendant,” she said. “He did not contribute to my campaign in 2016 cycle.”

The dismissal raised eyebrows around the courthouse for several reasons.

First, the elected district attorney signed off on the case personally, which is exceedingly rare, especially misdemeanors.

Second, the DWI pretrial intervention program, which lets people walk away from their first offense without a conviction, generally lasts a year. Buzbee went from arrest to completion in just over 8 months.

Also, the judge presiding over the case is the only jurist in Harris County who does not allow pretrial diversions for DWI cases. The DWI pretrial diversion program, formerly known as DIVERT, has firmly drawn guidelines – the terms of which generally are spelled out in a contract that a judge signs off before it begins. There is no such contract in Buzbee’s file.

Generally, when a DWI case that is eligible for the pretrial diversion program falls in County Court at Law Judge Bill Harmon’s court, it is transferred to a different court. That did not happen in Buzbee’s case.

[…]

Buzbee said it was “silly” to link political connections to a dismissal by the elected district attorney 21 days before she leaves office.

“I give money to most of the politicians in Houston and the state of Texas. To try to connect one thing to the other is silly.”

Courthouse observers said Buzbee’s statement makes the dismissal look like a gift from Anderson as she prepares to leave the office.

“Based on what (Buzbee) said, this is definitely not a diversion. If it’s not, then it is nothing but a political favor,” said JoAnne Musick, past-president of the Harris County Criminal Lawyer’s Association. “Unless (Anderson) just completely lied on a court document, because it appears, on the dismissal, that he completed a diversion – that he participated in some sort of program in lieu of prosecution.”

Buzbee claimed that the case was dismissed for lack of evidence, but that’s not what the form indicates. Maybe there’s nothing to any of this – I’m not a lawyer, I don’t know how these things work – but if so, it would be nice to hear that from someone who isn’t Devon Anderson or Tony Buzbee. Maybe there are more people who got a similar “early dismissal” of their nominally year-long diversion program. Maybe Devon Anderson had a specific reason for intervening on this one case. Maybe the dismissal form was filled out incorrectly and it really was a lack of evidence. Maybe there’s something else we don’t know about. Because if not, on the surface this sure looks like special treatment for a big shot. The Press has more.

(There’s now a bigger controversy breaking out at the DA’s office. I didn’t have a chance to get to it yesterday, but I’ll have something to say about it tomorrow.)

Video fraudsters to go to trial

All righty then.

Right there with them

Right there with them

David Robert Daleiden, 27, and his colleague, Sandra Susan Merritt, 63, both of California, have rejected a plea deal that would have effectively put an end to the criminal charges against them, their lawyers confirmed Friday.

“I don’t advise my clients to accept responsibility for cases that they haven’t done anything wrong in,” said Dan Cogdell, Merritt’s attorney.

The pair were charged in January with tampering with a governmental record, a second-degree felony with a possible sentence of up to 20 years in prison. Daleiden also faces a misdemeanor charge of attempting to buy human organs.

After a brief status hearing Friday, attorneys said they will not accept offers of pretrial diversion, a low-level probation that would have allowed the charges against them to be dismissed if they did not break the law for a year. It’s commonly offered by the Harris County District Attorney’s Office to first-time offenders with minor charges such as shoplifting.

Earlier this month, attorneys for Daleiden filed motions to quash the indictments against him, arguing that the Harris County grand jury that handed down the indictments was not properly empaneled.

See here and here for the background. The defense has alleged that DA Devon Anderson is in cahoots with Planned Parenthood, the defendants are utterly convinced of their righteousness and are prepared to martyr themselves for their cause. This will be…interesting. There’s no mention of a court date, so we’ll just have to be patient.

Video fraudsters offered probation

First the one, on Wednesday.

Right there with them

Right there with them

A California woman charged last week for her role in the production of undercover videos at a Houston Planned Parenthood clinic will be offered probation, a Harris County prosecutor said in court.

Sandra Susan Merritt, of San Jose, Calif., appeared in court Wednesday morning on charges of tampering with a governmental record, a second-degree felony which carried a possible sentence of up to 20 years in prison.

[…]

On Wednesday, Merritt made her bail, was processed by the Harris County Sheriff’s Office and turned herself in to state District Judge Brock Thomas. Dressed in her regular clothes, she appeared with a team of defense attorneys. She was also accompanied to and from the court by a handful of sheriff’s deputies because of the intense media scrutiny the case has generated, according to one official.

Merritt, who sat in the gallery with supporters, did not appear before the judge or speak in court. During a scheduling conference at the bench, Assistant District Attorney Sunni Mitchell said she is not considered a flight risk. The prosecutor said Merritt will be offered pre-trial diversion, a form of probation that typically does not require a guilty plea or stringent conditions. Typically reserved for low-level non-violent first offenders, like shoplifters, a suspect is diverted out of the court system. If they stay out of trouble, the charges are eventually dismissed. Merritt’s case was rescheduled until next month to work out the parameters of her probation.

Officials with the Harris County District Attorney’s Office would not discuss whether Daleiden would be offered a similar deal when he appears in court Thursday.

They did offer him a similar deal, and he rejected it.

Anti-abortion activist David Daleiden, one of the videographers indicted after infiltrating a Houston Planned Parenthood facility, on Thursday rejected prosecutors’ offer of a probation deal, according to his attorney.

[…]

County prosecutors this week offered both activists pre-trial diversion, a form of probation. But Daleiden rejected the offer and plans to fight the charges, said attorney Jared Woodfill. It’s unclear whether Merritt has accepted or rejected the deal.

[…]

Pre-trial diversion, a sort of probation, is offered to many first-time nonviolent offenders. If offenders keep a clean record for a predetermined length of time, their charges can be dismissed. Prosecutors have not drawn up a specific contract and conditions for Daleiden and Merritt.

Don’t bother. He ain’t taking it, whatever it is.

“The only thing we’re going to accept is an apology,” said Daleiden’s defense attorney Terry Yates. “We believe the indictments are factually and legally insufficient.”

Harris County District Attorney Devon Anderson responded that she has offered the videographer and his associate, Sandra Susan Merritt, 62, of San Jose, Calif., an “exit from their legal predicament.”

She also accused the activists of using their criminal charges to grandstand in a case that has drawn national attention due to heated opinions on both sides of the abortion debate.

“Currently, no evidence has been presented to me that gives me legal grounds to dismiss the indictments against Mr. Daleiden and Ms. Merritt,” she said by email. “Among those familiar with criminal prosecution, my offer would be immediately accepted as ‘an offer you can’t refuse;’ unless of course, your goal is not to avoid prosecution, but rather to keep the circus going and going.”

[…]

“It’s unusual because a pre-trial diversion is a pretty sweet outcome for an alleged felony,” said Geoffrey Corn, a professor at South Texas College of Law. He said Daleiden could have several reasons for refusing the offer, including believing that the law is not justified, that a jury would never convict him or that being convicted would add significance to his anti-abortion crusade.

“This guy thinks that what he did is morally justified,” Corn said. “Every now and then you encounter a defendant who, for whatever reason, says ‘I don’t believe in the law.'”

It’s more than fine by me that Daleiden rejected this offer, because I want them to be convicted of something, and I think their “we’re journalists and we did what journalists do” defense is deeply flawed. They don’t need to have jail time – honestly, this is not the sort of crime that really calls for jail time – but there needs to be an example set, to at least make any future copycats think twice. The reason why a conviction really matters is because the real potential for punishment will come from the civil courts, and nothing will help the various lawsuits against these clowns like a guilty plea or verdict. I’m not surprised that Daleiden rejected the plea – these people are believers, and I suspect more than willing to play the martyr – and I won’t be surprised if Merritt does as well. And if/when that happens, I want to see them nailed at trial.