Brian M. Roberts
THE COMING WRATH
It has been a while since I have written a blog, not for lack of want but by the time I have finished a day or a week of representing folks accused of crimes, I don’t have much left in me for writing. However, after six months of dealing with the Harris County District Attorney’s Office during a pandemic has encouraged me to find the time to write this little missive.
I considered writing this piece earlier in the week but I figured the two bourbons I had after a long day might inspire a narrative I would regret in the morning. After another day of more of the same from the DA’s office, I am confident the bourbon had nothing to do with my mood. In writing this article I found myself becoming so angry and frustrated that I had to leave it alone, more than once, to let it marinade overnight.
The Harris County District Attorney’s Office has a leadership problem that has created a systemic breakdown. I thought Pat Lykos was bad but Kim Ogg has destroyed the Office and few if any will disagree with me, including her employees. Prosecutors are defecting because they are being mistreated, poorly managed, unappreciated, and, if perceived to be disloyal to the Supreme Leader, investigated, harassed and punished by termination, reassignment or a nastygram in their personnel files. Boss Ogg, as my friend Murray Newman likes to call her, is a political animal and makes prosecutorial decisions based on politics rather than the law. Ogg’s administration is an abomination, the worst thing that has happened to the Harris County District Attorney’s Office and the rule of law in recent memory and she should not only be removed from office but prevented from ever entering any Texas courtroom. The fish rots from the head and the disease of her leadership has infected the rank and file prosecutors under her command. However, that does not excuse the conduct of some prosecutors in how they handle their assigned cases. To be clear, there are still a number of good prosecutors in the office who I respect, not because they give me what I want in a case, they often do not, but because they are professional, conscientious, hard working, and intent on doing the right thing. Unfortunately, there are a number of other prosecutors who aren’t worth their weight in cow manure.
As with other social media, the rarity of interpersonal contact and the rise of Zoom as the primary medium of interaction between the state and the defense bar during the pandemic, has turned some prosecutors into keyboard cowboys – you know, people who make nasty comments and forget courtesy and civility because they are talking to you by video or email. People tend to mind their manners more when they have to deal with one another face-to-face. Unfortunately, the decline of civility is not the biggest problem at the Harris County DA’s Office.
What has become endemic is the total lack of professionalism and professional responsibility prosecutors have to the cases they handle. I cannot tell you how many emails I have sent to prosecutors to discuss a case where the prosecutor does not respond. Ever. The lack of response to emails and phone calls and the lack of work done on pending cases, which has inevitably unnecessarily prolonged the disposition of cases, especially those that are bad for the state and should be dismissed, is inexcusable. I was a prosecutor at the Harris County District Attorney’s Office under Chuck Rosenthal for five years. Whatever your opinion of Chuck, I never had to worry about being second-guessed about my decisions because I did the work that was expected. If a case was bad or could not be proved I dumped it without a second thought. Some cases need to be prosecuted and some need to go away. I was promoted to the Special Crimes Bureau after three years as a number 2 prosecutor when that meant something. I worked hard to get there. I did my job and if I promised a defense attorney I was going to do something, I did it. I never dodged emails or phone calls and if I dropped the ball I owned up to it and fixed it. I would have been ashamed as a lawyer and a professional to not return multiple emails from a defense lawyer or, worse, not live up to my word. When I was a misdemeanor prosecutor, I worked my ass off to get my work done on my cases. I remember getting a call at 11:30 on a Friday night from former judge Brad Hart, who was my division chief at the time, asking me why I wasn’t at the office Christmas party. I told him I had ten cases set for trial on Monday morning and over ninety cases set for trial because I was what was known as a Number 5 prosecutor handling all number 3 and number 2 prosecutor cases. I know, no prosecutor today wants to hear war stories about “Back in the days when I was a prosecutor … ” but maybe they should because too many of the current crop don’t get anything done. I’ll give you some examples:
I had an aggravated assault case where my investigator uncovered evidence through witness interviews that killed the state’s case. Thinking the prosecutor would do the right thing, I shared my investigator’s information. Nothing. I emailed the prosecutor handling the case at least five times and she responded to none of my emails. I had to contact the chief who would then contact her prosecutor and copy me on the emails. To say the prosecutor dragged her feet would be polite. Ultimately, the chief dismissed the case but my client sat in jail longer than necessary because the prosecutor couldn’t get her shit together. And she never replied to my emails.
I have a client charged with assaulting his now ex-wife. The prosecutor handling the protective order dismissed it because I sent her audio and video evidence that the complainant was lying. So the prosecutor handling the assault case dismissed it right? Nope, I continue to get the standard “we’re still evaluating the case” all-purpose bullshit response. What is there to evaluate when you have recordings of the complainant that contradict her statement to police and the DA, recordings that show she lied? Meanwhile, my innocent client is on bond with the specter of a criminal charge hanging over his head, unable to move forward freely with his life. But the prosecutor shows no concern for that. Want to guess if she replied to the email I sent her yesterday?
I have a client charged with a DWI. She has a brain tumor, which is known to affect field sobriety tests, including horizontal gaze nystagmus, balance and gait. The arresting officer left the agency and went to work for another agency in another county. The prosecutor talked to the officer who said he administered the tests incorrectly and thought the case would get dismissed, and, he would rather not testify but will appear if subpoenaed. That was almost two months ago. The chief prosecutor told the Court the state will not take the case to trial but needs to evaluate the case further. That was two weeks ago. This week, the officer testified at the ALR hearing (for those who do not know, the ALR hearing is a separate administrative hearing before an administrative judge, brought by DPS lawyers, to determine whether the defendant’s license should be suspended, and in most cases the license is suspended). The ALR judge found no probable cause for the arrest, which, after an officer testifies at an ALR, is rarer than seeing a rainbow-striped unicorn. I sent the ALR court’s decision to the chief prosecutor. Plenty of evidence to dismiss, right? Nope. The chief told the Court that the last prosecutor handling the case did not evaluate it and they need more time to evaluate the case. Are you kidding me? There is no dead body here. There is no case. What are you holding onto? The case is a turd. Flush it.
Last, but not least, and unfortunately one of many more, I have a client charged with injury to a child – allegedly biting and striking the child’s arm. The child called 911 because he was worried for his mother, not because he was scared of her. When police arrived, she was non-responsive. She was transported to the hospital by ambulance where she remained for seven days and was diagnosed with a seizure disorder. No drugs or alcohol in her system. Her brain short-circuited because of a previously undiagnosed medical condition. The state cannot prove the mental elements of the charge – intentionally, knowingly, or even recklessly because of the medical condition. It’s like charging a person with a crime because he had a heart attack while he was driving a car and crashed into somebody. The state has my client’s medical records. Numerous emails, many with no response. Want to guess the response I get when I do get a response? “We’re still evaluating the case.” My client has made her child available to the prosecutor to meet and interview. I offered my conference room. No response to my emails. Another client with the specter of a criminal charge hanging over her head for no good, justifiable reason.
I understand due diligence. I expect prosecutors to perform their due diligence in every case, but when you prolong a case unnecessarily and use the excuse of performing due diligence because you failed to do your job, I have no use for you. If you have a bad case, do the right thing. How hard is that? Not hard when you know what you are doing and care about doing the right thing. If a prosecutor can’t tell the difference between a pile of cow shit (bad case) and a pile of gold (good case), he or she is in the wrong job. Defense lawyers cannot use the threat of trial to motivate prosecutors to act more quickly because there are no trials right now, not yet. As we work our way out of this pandemic, the number of cases that can be tried will be limited. Custody cases, meaning cases where the defendant is sitting in jail, will take precedence over cases where defendants are out on bond. So, prosecutors figure we can’t push them to trial and very likely they will be transferred to another court and the case will become another prosecutor’s problem before it ever gets to trial. And we will start all over again from square one with nothing getting done. Defendants will have to keep their lives on hold while prosecutors drag their feet. There is no impetus to resolve cases.
Here is the bottom line; one day, we will be back to normal. We will all be back in court, face-to-face. You, DA’s, will have to deal with us in person. And the defense bar, as reasonable as most of us are, will become very unreasonable when the DA’s office and certain prosecutors find themselves overwhelmed with cases. We will remember who blew us off and didn’t respond to our calls and emails. We will remember who screwed with us and our clients, and we will become as disagreeable to work with as you are now. We will start pushing you to trial, and we will put your feet to the fire when you need a continuance, and we will make your lives as miserable as you have made ours and our clients’ lives. We will object to you asking for more time to get done what you should have gotten done long before. We will kick the shit out of you at trial because we are better at it than you are and we will force you to keep trying cases when you have too many set for trial and need a break. Sound fair? When you treat a reasonable person unreasonably, you sew the seeds of contempt. Karma’s a bitch and she keeps score.
I’m pretty user-friendly. I am friendly with and respectful to prosecutors, judges and court staff. Respect and courtesy begets the same in return. The criminal bar is unique because we work with each other daily so it is important to maintain good working relationships with everyone, especially prosecutors, because good working relationships inure to the benefit of the client. There are prosecutors I trust and if they tell me they are going to do something I know I can take their word to the bank. If a prosecutor calls me and tells me they didn’t get a case evaluated in time and promise to have it done in the next few weeks, fine. Things happen and all of us drop the ball at one time or another. But, when a prosecutor doesn’t do what he or she is supposed to do for several months and continues to ignore calls and emails, and hides behind “we’re still evaluating the case,” then I am not so forgiving. I have NEVER been this frustrated or furious with the Harris County District Attorney’s Office and with certain prosecutors because I have never experienced anything like the lack of professionalism and professional responsibility that I have experienced over the last six months. Prosecutors, if you think this is just one really angry defense lawyer and you can ignore what I am telling you, think again. There are more of us than there are of you by at least 3 to 1 and a whole bunch of us are very unhappy with you. Do you really want to get the wrath that is coming your way?
If that doesn’t do it for you, keep in mind that you are government employees subject to public scrutiny and your work records are not private (except for your personal information, of course), so you better hope to the good Lord that one or more of us defense lawyers doesn’t get so irritated with your lack of response and your lack of candor that we file a public information access request for your work records and time sheets to help us figure out why it is taking you so long to do your job. Take a few minutes. Think it over. Let it sink in. I’ll wait, for now.