Verdict is in
DA helps usher in new era for home of death penalty
For those who may still revere Harris County’s lingering reputation as a law-and-order bastion — a place once considered the symbolic home of American capital punishment — the coming years are unlikely to offer much solace.
With a new boss in the corner suite and different priorities unfolding, the local district attorney’s office no longer stands out as a tough domain where prosecutors earn their spurs by packing Houston’s meanest killers off to death row. As far as District Attorney Kim Ogg is concerned, it’s now about common sense and balancing resources.
“People’s attitudes have changed, prosecuting attorneys’ attitudes have changed, and mine have changed,” said Ogg, who once toiled as a felony prosecutor in the administration of Johnny Holmes, whose national renown was built on a hard-edged approach to the death penalty. “That was a different time.”
To say the least. For many years, any discussion of capital punishment in America had to include Houston. Reporters tackling the subject dutifully recounted the gaudy local statistics — the product of Holmes’ insistence the law was on the books for a reason, and that it was not his role to undermine it by overly selective application.
The Houston Chronicle regularly reported on the DA’s approach to capital murder and embarked on a major project exploring the reasons for it — and consequences thereof — when then-Texas Gov. George W. Bush was running for president. Not long after writing some of the articles in that series, I participated in a symposium on deathpenalty trends at a university in Tennessee. Other reporters on the panel worked for more prestigious newspapers — including The New York Times and Washington Post — but it was the writer from bloodthirsty Texas who drew more attention. Were Texans just crazy, they wondered. How could so many people be worth sending to death row?
I did my best to explain the different strains of prosecutorial discretion, but I thought my responses failed to satisfy. While the other reporters barely concealed their disdain for the death penalty, I remained agnostic on the subject, and still am. It was not my role to advocate for its abolition or skew stories to place the local DA in a bad light. Some who came for the discussion failed to grasp that.
“Is there anything that might change your district attorney or make the voters rethink this love for capital punishment?” one student asked during the Q&A session. He went on for another 30 seconds at least, and quite eloquently, about the dangers of such an approach and how it seemed at odds with many other places in the U.S. and the worldwide trend.
The questioner may have been hoping for a constructive outlet for his obvious indignation. But all I could think of was the most obvious answer.
“No,” I said, leaving it at that.
Another sentencing option
As it turned out, I was wrong. There was one thing that could bring about change. Time. Over the years, those states and counties that had aggressively pursued death sentences were undermined by highly publicized appellate reversals, wrongful convictions, a declining crime rate and the slow shift of public opinion. The U.S. Supreme Court decided that juveniles would no longer be eligible for the death penalty — and also those with significant intellectual disability. One state after another adopted a new sentencing option for capital juries — life without parole — and that changed everything, even in Houston.
I recall one afternoon when I sat in Holmes’ office discussing all the national publicity he had received, and all the criticism. He was nonplussed and completely unapologetic. A rumor circulated that his prosecutors would joke about the newly condemned being granted membership into the “silver needle society.” Holmes would not talk about that, emphasizing that he was simply doing the job he was elected to do. Voters could remove him if they disapproved.
They never did. A trusted lieutenant took over when Holmes retired in 2000, only to resign in disgrace in his second term. Now, several DAs later, it’s Ogg’s turn. She liked and respected Holmes, once prosecuting a death-penalty case for him. But she’s cut from a rather different cloth.
Just how different was made clear in her recent decision not to seek the death penalty again for Duane Buck, a double murderer who had spent two decades on death row before the Supreme Court granted him a new sentencing trial earlier this year. Agreeing to allow Buck to live out his days in prison once would have been heresy for an office that defiantly rejected easy compromise. For Ogg, it was the most reasonable choice: His trial was based on old evidence and marred by impermissible testimony, so why go through it all again and potentially deal with another 10 years of appeals?
Giving up the fight for Buck’s execution was perhaps the most obvious reminder that business as usual no longer applies at the local courthouse — and that Ogg is serious about pushing a reform agenda.
“I think she is definitely among the few in the nation who have been elected with a reform mentality and whose time has come,” University of Houston political scientist Brandon Rottinghaus said. “She was elected by a sea of Democratic votes, but she got 20,000 more votes than other Democrats. There is a growing sense that criminal justice reform is needed, and there is bipartisan support to make that happen.”
Progressive agenda
Ogg has promised to make the death penalty a rarely sought punishment. At the same time, she has focused on the other end of the criminal justice spectrum: the “trace” drug cases and nickel-and-dime marijuana arrests that clog dockets and accomplish little. Her office henceforth will have little use for either, she announced.
Former DA Pat Lykos pushed some of the same notions, only to lose in the 2012 Republican primary to a traditionalist promising to turn back the clock. Now Ogg, a Democrat, has seized the office with a progressive agenda that may be in sync with other big-city district attorneys — what Governing Magazine referred to as a “fresh new wave” of top prosecutors — but it surely is at odds with Houston’s fierce history.
Only five years ago, lock-’emup Republican Mike Anderson was handed the prosecutorial reins behind the endorsement of none other than Holmes, whose two decades of uncompromising philosophy toward capital punishment had stocked death row with scores of inmates, so many, in fact, that many states could not equal Harris County’s output. Anderson spoke openly in his campaign about his desire for resurrecting “the good old days.”
For her part, Ogg is dead-set on keeping death-penalty cases to a minimum.
“The changing attitudes of prosecutors are influenced by three things — the life-withoutparole option, the immense cost in a time of limited resources and the human toll of waiting decades for final imposition of that sentence,” Ogg said in a recent interview. “Those are the reasons for my approach.”
Fair enough. But removing a murderer from death row is another matter, especially in cases prosecuted before life without parole was a sentencing option. In agreeing to reduce death sentences to life, Ogg may see the fulfillment of a campaign pledge. Yet each instance has potential as fodder for a “soft on crime” accusation in her next campaign.
Even if there’s consensus that the death penalty is no longer a priority in an era of fewer murders, it’s hard to imagine either Anderson, Mike or Devon, doing likewise with Buck. The question is whether it matters anymore. For Ogg, it’s an important one to answer correctly.
Death-penalty cases from Texas, and Houston in particular, are getting more scrutiny than ever from appellate courts. Buck won’t be the last condemned inmate to have his sentence overturned. It’s likely that most of the erstwhile condemned will end their lives in prison, not on a gurney with a needle in their arm. Which means more future years will look like 2017, when for the first time in three decades no one from Harris County was executed.
“Are there (political) consequences? There could be — down the line,” said Gary Polland, a criminal defense attorney and former county chairman of the Republican Party. “Someone would have to drive the message that what (she) did was hostile to the interests of law and order. But I think she’s doing every politically astute thing she can do to make people think she’s a reformer. There is no downside to that right now.”
Buck hardly presented an inviting case to make a point about overzealous application of the death penalty. His guilt was beyond doubt, and his actions on the night of the crime were cruel. There was no complaint of misconduct by prosecutors or evidence of intellectual disability.
Buck’s lawyers had spent years asking only for a new sentencing hearing because of racially tinged testimony by psychologist Walter Quijano, who cited statistics that showed African Americans were found in the criminal justice system in numbers greater than their overall percentage of the population. When the request finally was granted earlier this year, Ogg’s office didn’t have to do anything other than make a reasonable argument based on his own actions about why he should be sent back to death row. That’s what the relatives of his victims wanted. She balked.
“We had a difficult case to prove with the evidence that was available,” Ogg said. “We had a divided family — one victim did not want death. The children were the witnesses, and I felt they continue to be traumatized. Race had been injected into the case, and that did taint it. Future dangerousness was a question we had to answer, and there had been nothing since he’d been in prison, in contrast to some of those on death row. And it would be another 10 years of appeals.”
Ogg’s decison not to retry Buck was acceptable to his stepsister, who survived a gunshot wound in the chest during his rampage, but it infuriated relatives of his two deceased victims.
“I have concluded that 22 years after his conviction, a Harris County jury would likely not return another death-penalty conviction,” Ogg said in announcing her decision.
That she could be right is remarkable for a county that once had a worldwide reputation as the “capital of capital punishment,” turning out death sentences with assembly-line efficiency. That she did not even try says more.
String of cases
Buck was not the first example of Ogg’s revised attitude toward the death penalty. In April, Randolph Mansoor Greer also was removed from death row. He had been sent there for a crime spree in 1991 that left two women sexually assaulted and the owner of a Bellaire gun shop dead.
In early November, her office agreed to a life sentence for Bobby Moore, whose IQ scores raised the probability of intellectual disability. The Supreme Court threw out his sentence in March, and Ogg’s office chose not to dispute his lawyers’ claims that Moore was ineligible for the death penalty. He had been on death row since 1980.
Murray Newman, a longtime prosecutor who lost his job when Lykos came in, said he expects the future to bring similar decisions more often than not.
“Kim has an agenda she wants to follow through on, and she’s not going to be secondguessed on it,” said Newman, who writes a blog about ongoing developments in the local courts and DA’s office. “She is unabashedly taking that office in a different direction than it’s gone in before.”
Ogg said that the death penalty will still be sought in rare circumstances, including the murder of police officers.
“Some murderers are so bad that they have earned the death penalty,” she said, mentioning mass murderers, serial murderers and cases in which killers “torture and enjoy the suffering of their victims.”
As some of the old death cases from Holmes’ era float back from appellate courts, Ogg applies a different standard, knowing that any particular decision not to seek death again could come back to haunt her. She said she doesn’t worry about it.
“I don’t believe that I should be controlled by fear of political fallout,” she said. “I’m a prosecutor for these times.”
And these times could not be further from Houston’s notorious past. Once synonymous with the death penalty, Harris County prosecutors haven’t sent anyone to death row since August 2014, the longest hiatus of the modern era. Sooner or later that will end, of course, but the era of Houston’s singular commitment to the ultimate punishment is gone, with only the occasional execution to remind us of the status it once so defiantly held.