On Character and Suspicion (Harris County ADAs Under Suspicion)

In 63 BCE, during his rise to power, Julius Caesar was appointed to the powerful and sacred office of “Pontifex Maximus,” the chief priest of the Roman state religion. As part of his new role, according to custom, his wife, Pompeia, was required to hostess a religious festival of the “Good Goddess.” The Good Goddess festival was pretty unique, even by strange pagan standards. It was only for women, and was one of the few times women were allowed to drink strong wine, perform animal sacrifices, and stay out late at night. All in all, it was a great, albeit a bit bloody, time.

Problematically if not predictably, a cocky young man named Publius allegedly disguised himself as a woman and snuck into the festivities in order to seduce Pompeia. Rumor spread that Pompeia was having an affair with Publius, and the city was abuzz with the worst kind of gossip. Publius was charged with Sacrilege, a criminal offense back in those pre-separation-of-church-and-state days, and to the credit of the ancient Roman legal system, was entirely acquitted- probably rightfully.

It became apparent that Publius probably didn’t sneak into the festivities at all, and it was certain that he had never had any kind of contact with Pompeia, let alone any conduct that might…besmirch her virtue, so to speak.

Still, Caesar divorced Pompeia immediately, in spite of knowing that she was innocent. When asked why he would divorce his wife for doing nothing wrong, Caesar said, “Caesar’s wife must be beyond suspicion.” (We forgive darling Julius for referring to himself in the third person. Sometimes even your dearest Allison is guilty of such.)

At first, it seems pretty wildly unfair for ol’ Julius to divorce the luckless Pompeia, who was summarily kicked into the ash-heap (or perhaps ash-hole?) of history with this one disappointing little story. But if you think about it, really, shouldn’t she have been beyond suspicion? Don’t we all want to be the kind of people who, when someone whispers a filthy little rumor about us, the listener says, “Wait, actually I know her, and there’s no way she would do that. Don’t come around here spreading lies about the most honest person I know. Good day, sir.”

I think that as attorneys, and especially as attorneys who practice criminal law, we have to be the kind of people who are beyond suspicion. We are ethically bound to be honest to the tribunals before which we appear, and to other officers of the court, including opposing counsel. While we are not obligated to tip our hands to the adversary, we should endeavor to play fair.

While an accused enjoys “innocence until proven guilty beyond a reasonable doubt,” we, as attorneys, from an ethical and moral standpoint at least, do not.

The recent shake-up at the Harris County District Attorney’s Office is an example of the failure of attorneys to be beyond suspicion. The allegations that at least three prosecutors who were recently “asked not to return” to the office under the incoming Ogg administration have contacted crime victims and their families and spread false information and panic are truly horrifying. I hope, for the sake of the victims, for the honor of this profession, and for the future careers of those attorneys, that those allegations are not true. I will not speculate on the professionalism of the three ADA’s named, other than to say that one of them, Nick Socias, was the ADA who recently made news for jailing a rape victim to ensure she testified against an attacker, and was defended by Devon Anderson in an odd and ill-advised YouTube video.

I hope (though I’m afraid that this is hope trumping experience in this case) that these prosecutors have worked hard throughout their careers to develop a shining and honorable reputation. That they will be beyond suspicion, that the allegations are not only false, but that the people who know these individual prosecutors will refuse to believe it anyway.

Unfortunately, the solitary fact that these prosecutors worked under outgoing DA Devon Anderson may make any protestations harder to believe. Anderson has proved herself, time and again, to be untrustworthy and deceptive. Even now, at the twilight of her tenure, rumors are swirling about the odd circumstances of her recent, personally-signed dismissal of a misdemeanor DWI for a prominent Houston attorney who also happens to be a former campaign donor to Anderson. Maybe Anderson’s dismissal was reasoned and just. I hope that it was. But whatever the facts of the situation may be, it’s fair to say that the public doesn’t think her character is above the suspicion that she would engage in such blatant cronyism and a trade-off of favors. Attorneys who worked under Anderson and had her favor, especially those who were promoted by her and were protected by her, have a bit of a fetid tang that is going to be hard to wash off.

Kim Ogg’s recently publicized decision to refuse to renew the contracts of 37 prosecutors, many of them in senior and supervisory roles, has come under a considerable amount of fire in the past days. The continued circus of the Anderson administration and the constant, dripping faucet of indications of a culture of unethical (at best) behavior by attorneys who not only should know better but are obligated to do better shows that Ogg’s massive layoff was not only acceptable but necessary. I have great hope that Ogg will find people to fill the empty positions who have earned reputations that are not only above suspicion but also beyond reproach.

As for Devon Anderson, kick her in the ash-hole.

Spring Cleaning at Precinct 4

What the hell is going on at Harris County Constable Precinct 4? That’s been the question on everyone’s mind for the last few weeks since the news broke that over 20,000 items of evidence were destroyed. It’s hard to even visualize what 20,000 pieces of evidence looks like, how much space it consumed in the Precinct 4 evidence room. According to a September 2, 2016 article written by Zach Despart for the Houston Press, the number of missing individual pieces of evidence is 21,500, affecting 1,072 open cases and an additional 600 defendants who were already convicted. In the time since the debacle came to light, the Harris County District Attorney’s Office has dismissed 142 cases.

The numbers don’t add up. It is believed that the bulk of the evidence destroyed is drug evidence. The vast majority of drug cases involve a minimal amount of drugs, usually less than one gram and by a wide margin, cocaine in either powder or rock form, is the most prevalent controlled substance seized. Less than a gram of cocaine can be anything from residue in a crack pipe to one or two rocks of crack. If 21,500 individual pieces of evidence were destroyed, it defies logic that only 1,672 past and current cases and defendants are in question. If we are to believe the numbers, there are, rather were, 13 pieces of evidence per case.From the looks of things, District Attorney Devon Anderson, Precinct 4 Constable Mark Herman and former Precinct 4 Constable and current Harris County Sheriff Ron Hickman are chasing their tails in circles and don’t have any idea how many cases are really affected. Or maybe they do but are unwilling to disclose the real scope of the damage until they figure out how they’re going to handle it. Frankly, as a law enforcement agency, Precinct 4 has never been well-regarded for the quality of its officers or investigations. Brian Rogers of the Houston Chronicle, reported on September 2, 2016, that Precinct 4 has been unable to provide the DA’s office with a complete list of pending cases affected. It seems more likely that considerably more cases are involved than the 1,672 reported by the DA’s office.

How could something like this happen? Was it criminal conduct or just plain stupidity. Mark Herman said he did not learn about the destroyed evidence until March or April of this year and fired the deputy responsible after an internal affairs investigation determined the deputy committed “some gross policy violations” but whether there was “a gross violation of the law” he will leave to Devon Anderson and investigators. How does one make a mistake of such epic proportions? How did Herman miss this? I thought about the movie The Untouchables and the speech Kevin Costner as Eliot Ness gave to police officers assigned to his task force to dismantle Al Capone’s bootlegging business during Prohibition. I looked all over for it and couldn’t find it but it goes something like this, “If you’re going to drink, drink whiskey and not vodka. I would rather know you’re drunk than think you’re stupid.” In this case we can’t help but walk away with a clear sense that this was a monumental case of stupid. There is a chain of command, policies and protocols or at least we would think there are. Did the deputy at the center of this embarrassment do it on his own? Was he supervised? Was he given a list of evidence to destroy and if he was who gave it to him? How was the evidence destroyed? Where was it destroyed? But these are not the most important questions, not by a long shot.

The most important question is why in the hell did the DA’s office wait five months to notify the defense bar?

I understand that the DA’s Public Integrity Division has been investigating the case since Herman first told them about evidence being destroyed. I understand that investigations are confidential to maintain integrity and prevent further loss of evidence. However, in this case, Precinct 4’s Internal Affairs division conducted an investigation (not saying it was complete by any means) and the offending deputy fired. The DA’s office investigation was already compromised. But defendants were sitting in jail awaiting court dates and pleading guilty in cases the DA’s office was unable to make because the evidence had been destroyed and nobody said a word. There is no excuse, no justification for not immediately informing lawyers whose clients were affected.

The second most important question is when were the rank and file prosecutors told the cases they were responsible for prosecuting were compromised?

From what I have seen so far, it appears the administration didn’t tell the line prosecutors until the story broke. And why weren’t they told earlier? We can’t blame the rank and file for the administration’s blunders; however, this should serve as a lesson in humility. I can’t count the number of times a prosecutor — usually not one of the good ones — has scoffed or bluntly told me he or she does not believe anything my “lying piece of shit client says” when I have presented a defense but they sure took offense when I questioned the integrity of an officer or investigation. Prosecutors, this case right here is why we question the integrity of some, not all, officers and some, not all, police investigations. And the administration’s handling of this cluster is why some are questioning your integrity. Not a good feeling, is it? Most of the prosecutors I deal with are good people, people I respect and who treat my clients fairly. For the prosecutors who could benefit from a little more training in how they wield their authority, perhaps you should consider this situation before your next smug remark or before you mount your high horse and ride it all over a defendant.

Police agencies have a sacred duty to preserve all evidence and maintain the integrity of their investigation because as often as evidence seals the fates of our clients that evidence has in many cases also served to exonerate them. If the State can’t prove it’s case because an officer, a police agency or a prosecutor screwed the pooch that’s the State’s problem. Don’t wait. Don’t sit on the problem while defendants rot in jail. Do the right thing and dump the case because it’s, I don’t know, one of those quaint little constitutional things. Justice demands it.