Fired prosecutor, DA fight war of words
They accuse each other of lying to court in 2018 double-murder case as feud erupts
Harris County District Attorney Kim Ogg accused a high-ranking former prosecutor of lying in court more than a year ago during an appeal in a double-murder case, newly filed documents show.
Andrew Smith, the prosecutor who was fired Monday, denied that allegation, saying he told the truth in court and that Ogg defamed him by making a “false filing.”
“If it’s going to get into a slurring match against Kim Ogg, I will be more than happy to put my reputation up against hers,” he told the Houston Chronicle.
In an interview late Thursday, Ogg stood by her decision. She again accused Smith of lying in court before convicted killer Feanyichi Uvukansi’s March 2018 appeal hearing.
“He made a false statement in court that he attributed to me,” Ogg said. “I can’t support that.”
During a courtroom conversation before the hearing, defense lawyer Randy Schaffer questioned why Gretchen Flader — the prosecutor in the original 2014 trial — was let go, suggesting it might be because she was “untrustworthy” or “sneaky.”
Smith said in court that Ogg told him Flader was let go because she was dating another prosecutor who was involved in a politically charged case, though Ogg has denied that.
The blistering accusations stem from a seven-page filing Ogg entered late Wednesday to correct the record in Uvukansi’s appeal.
Uvukansi had argued during the appeal that one of the witnesses against him offered misleading testimony about whether he’d been offered anything in exchange for his cooperation.
Though the witness testified that he hadn’t, that was untrue. And Flader failed to correct him.
In Wednesday’s court filing, Ogg wrote that she only learned this month about Smith’s courtroom statements regarding the reason for Flader's firing.
“On or about November 6, 2019, during an internal conference with other prosecutors reviewing the procedural status of this case, District Attorney Kim Ogg became aware for the first time of writ prosecutor Andrew Smith’s false statement to the trial court when she read a partial transcript,” Ogg wrote, adding that Flader was let go for withholding evidence in a different case.
Though he wouldn’t opine on whether Smith told the truth in court, Schaffer said Thursday that Ogg’s filing was inaccurate for a different reason: She knew of Smith’s claims at least three months earlier, in mid-August, when Schaffer says he notified her both in person and by email.
“I don’t know why she made this misrepresentation to the court, but it’s not true,” Schaffer said. “It’s all politics, it’s not justice.”
After the Chronicle called Ogg’s office with questions, she said she planned to file a second correction, clarifying that she had learned about Smith’s statement in August but only confirmed it in November.
The case as the center of the controversy dates to 2014, when Uvukansi was convicted of firing shots into a crowd and killing two people.
Afterward, he was sentenced to life without parole. In 2016, when Ogg took office, she declined to keep Flader and a few dozen other prosecutor on board.
In the meantime, Schaffer took up Uvukansi’s appeal and managed to win a rare hearing. In the weeks leading up to the hearing, Schaffer asked for Flader’s personnel records, saying that the reason she was forced out of the office could be relevant to her credibility.
“Kim Ogg told me, when she got elected, she said, ‘The hardest decision I’m going to make as D.A. is ... how to handle the misconduct of previous administrations,’” Schaffer told the judge. “‘Do I support it or do I defend it?’”
Getting rid of Flader was a prime example of that, according to Schaffer.
“If she fired her because she found information indicating that Flader is not a credible person or Flader has engaged in misconduct or Flader’s untrustworthy or whatever, that’s absolutely relevant,” he said, “because it shows that the office that is now defending this capital murder conviction threw out the prosecutor that got the conviction, and so why they didn’t rehire her well could be material in this case.” Smith pushed back.
“If we’re getting into personal conversations with Ms. Ogg,” Smith said, “Ms. Ogg told me the reason why she let go of Ms. Flader is because she was sleeping with the man who was dealing with the Jenny case.”
The “Jenny” case was a heated political issue during the 2016 election season. Prosecutors under then-District Attorney Devon Anderson jailed a rape victim, “Jenny,” to ensure she’d appear in court — a move that sparked widespread criticism and harmed Anderson’s campaign.
When Ogg took over, one of the dozens of prosecutors swept out was Flader’s boyfriend, Nick Socias, who handled the Jenny case.
In her filing this week, Ogg wrote that she actually let Flader go for failing to turn over evidence in a different case and not because of her relationship with Socias. According to court filings, that was the same thing Ogg wrote in documents to the Texas Workforce Commission after Flader filed an unemployment claim and alleged she was fired for her relationship.
“The reason is because of prosecutorial misconduct,” Ogg told the Chronicle Thursday. “I did not invite her back to the office for any other reason other than her own misconduct.”
But in an interview with the Chronicle, Smith said he clearly remembered the moment Ogg told him otherwise. On Jan. 11, 2017, Smith met with Ogg to discuss the case of David Temple, whose first murder conviction was overturned after a higher court found prosecutors withheld evidence and denied the former high school football coach a fair trial.
Smith provided images of his Outlook calendar from that month, and he told the Chronicle that the meeting stood out because it was the first time he’d met one-on-one with Ogg, who’d taken office days earlier. But before discussing the Temple case, Smith said, Ogg mentioned that she’d “had” to let Flader go because of her relationship with the “Jenny” prosecutor.
After Schaffer mentioned Smith’s testimony to Ogg in August, he emailed her court records the following day. When he didn’t hear any more about the case — or about whether the district attorney’s office would recuse itself in the Uvukansi case, as he suggested, he said he eventually emailed her, threatening to ask the state bar to investigate.
Last week, Ogg and other office officials confronted Smith. He refused to resign and was fired on Monday morning.
“She has clearly impugned my character and I’m not going to stand for it,” he said. “It is hard for me to even fathom what goes on inside of Kim Ogg’s head.”
To Schaffer, the recent flurry of activity in the case comes too far after the fact. Arguments and hearings are long past, the local trial court already ruled against his client, and the matter is now waiting for a decision from the Texas Court of Criminal Appeals.
“This is cosmetic only,” he said. “It’s the same effect as writing it on a piece of toilet paper and flushing it down the toilet.”