Houston area DA’s intake policy faulted
Thousands jailed where judges find no legal basis
Harris County District Attorney Kim Ogg’s office filed criminal charges in more than 4,500 cases in 2022 that judges said lacked probable cause, the lowest burden of proof needed to detain and prosecute someone.
That’s more than double the number of cases tossed in 2016, the year before Ogg took office. It means prosecutors are sending more and more Houstonians to an already overcrowded jail with no legal basis, sometimes causing them to lose income or even temporary access to their children, a Houston Chronicle investigation found.
The data brings fresh scrutiny to the way the county’s top elected prosecutor, a Democrat, is running her office as she faces a wellfinanced opponent in Tuesday’s primary election. It also draws attention to the rigor of an intake process that serves as the gateway to the judicial system for tens of thousands of Houston-area residents.
The reason for the increase, based on interviews with more than a dozen current and former DA staffers and criminal defense attorneys, is a change that Ogg made to the intake unit soon after she took office.
The intake unit takes hundreds of calls a day from police officers, who must get prosecutors’ permission before arresting people for criminal offenses. Intake prosecutors determine whether the officers have established probable cause to arrest people and charge them with a crime.
Before Ogg was elected, about 350 attorneys from around the DA’s office worked in intake on a temporary rotational basis, and all were required to have experience prosecuting cases in a courtroom.
That has changed. More than two dozen prosecutors are permanently assigned to the division, and 18 more serve on a voluntary basis on weekends. While some have decades of experience in criminal law, others have been hired right out of law school.
In a statement, Ogg said she made the changes so that police officers calling the intake unit “would receive a consistent response from a specially trained group of prosecutors operating within uniform policies.” She said the proof of the new unit’s success is that her office is filing fewer criminal cases overall.
Critics say the division is now failing to weed out thousands of baseless criminal accusations on the front end, and that is putting innocent people behind bars and further clogging an overburdened court system. Three new felony courts recently opened in Harris County, with an annual budget of $9 million, to help ease the system’s load.
“There is apathy down there. These cases aren’t real people to them,” said Lauren Byrne, a former senior Harris County prosecutor who worked hundreds of hours in the intake division both before and after Ogg made the changes.
Byrne is a supporter of Ogg’s Democratic primary opponent, fellow former prosecutor Sean Teare, who has vowed to immediately reinstate the old rules in the intake division if elected. Teare resigned from Ogg’s administration last year to run against her.
“Potentially the worst thing that (Ogg) has done in her tenure there is quite frankly ruining the intake division,” said Teare, who supervised intake prosecutors for years before Ogg became DA and also in the first year of her administration. “It permeates every level and layer of the DA’s office because intake is so broken.”
Ogg’s intake division chief, Jennifer Keith, dismissed the criticism.
“I don’t think it’s fair to make that generalization that intake is bad based solely on a set of numbers on a piece of paper,” Keith said in an interview.
She said judges, not prosecutors, are responsible for the increase in rejected cases.
Keith pointed out that soon after Ogg became the DA, voters elected a wave of new Democratic judges, many of them with “much less experience” than their predecessors. She said they are making different decisions about probable cause due to “maybe a different ideological perspective or a philosophical perspective.”
She also said that prosecutors can still present a criminal case to a grand jury even after a judge has found no probable case. In 2022, the DA’s office presented more than 400 rejected felony cases to grand juries that ultimately indicted the suspects.
Misdemeanors are a different story. Prosecutors could also present those cases to a grand jury after a “no probable cause” finding, but they rarely do so, said Shannon Baldwin, who presides over all 16 misdemeanor judges in Harris County.
Kelli Johnson, a district judge who presides over felony cases, said grand juries would not hear a case until days, weeks or even months after a judge had rejected it for lack of probable cause. If a grand jury approves a case later, “all that tells me is it was filed prematurely,” she said.
Johnson, who was a prosecutor for Ogg’s predecessor before she was elected to the bench in 2016, said she does not let personal beliefs get in the way of probable cause decisions.
“I’m not going to hold a citizen in detention or on bond for something that the facts don’t rise to,” she said. “That’s a really big deal in a person’s civil liberty.”
Spending even a few hours in jail can wreak havoc on someone’s life. That’s what happened to Sofia Siloyan last fall.
‘I was so scared’
On the evening of Sept. 21, Siloyan was waiting with her 1-year-old son to board a flight to Turkey at George Bush Intercontinental Airport. She had left her husband. Shortly before 8 p.m., a U.S. Customs officer — who had been alerted to a possible child abduction case — detained Siloyan.
Then a Houston Police Department officer showed up.
“Did you know you have to have permission to take your child away from the country?” Sofia remembers someone saying.
“What asked.
Officers insisted that Siloyan was violating a custody order by leaving the country with her son. As they detained her in a small room in the airport, they called the Harris County DA’s intake division, she remembers, and said something about a “child abduction.”
The custody order was no longer in effect. It had been signed when Siloyan was in divorce proceedings, but those proceedings had been dismissed. Siloyan called her lawyer, who promptly sent prosecutors documents to prove it.
“I want to be very clear: There are no child custody orders in place in the Siloyan case,” the lawyer, Kyle McFarlane, wrote in an email to two intake prosecutors shortly after midnight. “Your office is making a baseless arrest and you are putting this child and mother in grave danger.”
In the early morning hours of Sept. 22, police arrested Siloyan for the felony offense of interference with child custody.
“I was so scared because I didn’t want to go to jail,” Siloyan recalled. “I didn’t want to be away from my child.” (The child’s father flew to Houston and picked up their son later that day.)
Siloyan was booked in the jail about 6:30 a.m., more than 10 hours after authorities had approached her at the airport. That afternoon, prosecutors, defense lawyers and Magistrate Judge Eva Flores traded emails about the case. When Flores began asking for more documentation of the custody order, intake prosecutors agreed to drop the felony charge — but they insisted on charging her with “attempted interference with child custody,” a misdemeanor. Flores was skeptical.
“How is it attempted if there are no court orders restricting anyone’s travel?” she asked.
A half-hour later, she tossed the case. kind of permission?” she
“Defendant is the child’s mother, and is entitled to possession of or access to the child equal to that of the father,” Flores wrote to prosecutors and Siloyan’s lawyers.
The judge said the state failed to provide sufficient evidence to warrant criminal charges.
Authorities released Siloyan about 3 a.m., 24 hours after her arrest. By then her son was in Colorado with his father, and she would not see him for three weeks, she said. She is now separated from her husband and has primary custody of her son, her lawyers said.
Keith, the intake division chief, defended prosecutors’ actions.
“We have to rely on information the officer provides to us, which they have gotten as part of their investigation, to which they have sworn,” she said. “One of our obligations is public and victim safety. I think we’re always going to err on the side of caution.”
As for the documents that Siloyan’s lawyer had sent to two intake prosecutors proving there was no custody order, Keith said one of the prosecutors never read the message, according to the DA’s email records. She said she did not know whether the other prosecutor saw the message or not.
Byrne, the former Harris County prosecutor, called that response “offensive.” She said prosecutors should never depend on police to interpret legal documents such as custody orders.
“You don’t simply rely on the information an officer provides,” said Byrne, who was a supervisor in the DA’s family violence division before she left the office in 2020. “They’re relying on you to verify it. It’s your job.”
Prosecutors last year also filed more than 70 felony charges of evading arrest while in a motor vehicle that judges later tossed for lack of probable cause. In one such case, a Houston man had driven an extra 1.2 miles after a deputy constable tried to pull him over for driving without his headlights on, his lawyer said.
The man explained to officers that his car had a bad alternator and would have died if he’d tried to stop earlier, but they arrested him anyway, courts documents show.
A magistrate judge initially agreed that the case met the burden of probable cause. But the felony judge who assessed the case did not. By the time it was resolved, the man had been in jail for more than 12 hours.
His attorney, Vikram Vij, said he has seen an increase in such cases under Ogg.
“There’s a lot of crappy cases that wouldn’t have been filed before,” said Vij, who has been a criminal defense attorney in Houston for the past decade.
Changes to intake
In most Texas counties, police do not need a sign-off from a prosecutor before filing criminal charges and arresting someone. But in Harris County, prosecutors, not police, must sign the charging documents. That means they can screen out cases that might not pass muster much earlier than neighboring counties do.
“People used to come from around the nation to check out our intake division because it ran like a well-oiled machine,” said Amanda Peters, a professor at South Texas College of Law who worked as a prosecutor in Harris County from 1999 to 2007.
At that time, attorneys could make overtime pay by picking up eight-hour intake shifts on nights and weekends. It was a popular system, helping many pay mortgages, clear law school debt or even finance their weddings.
Most important, Peters and others said, the system helped ensure that experienced attorneys were making the decisions. Only attorneys who had tried a felony case in court were allowed to take calls from law enforcement officers who wanted to file felony charges, and the same was true for misdemeanors.
When Ogg became DA, her critics say, everything changed. Teare, who served on Ogg’s hiring committee from 2017 to 2023, said the unit has become filled with unqualified attorneys.
“When we rejected someone for whatever reason, like a bad interview … we would turn around and offer them intake,” he said. “It’s staffed by literally people who weren’t good enough to be real prosecutors.”
PFM, a consulting firm, agreed with Teare and other critics’ concerns in a 2022 report to the Harris County Commissioners Court. The authors wrote that Ogg’s senior prosecutors told them the office “is accepting cases that should not be prosecuted due to lack of probable cause or lack of evidence.”
“Trial experience is crucial to understand the value and requirements of a case,” the report says. When staffing the intake unit, the DA “should assign only seasoned and well-qualified attorneys.”
Keith, Ogg’s division chief, disagreed. She said many prosecutors in the intake unit have experience working as defense lawyers or prosecutors in other states. She further argued that experience alone isn’t necessary to be a good intake prosecutor.
“Some people just don’t want to be a trial lawyer, but their skill set, the work ethic … they excel at intake,” she said. “That’s a good place for them.”
Ogg has not shown any signs of making changes to the intake division. Instead, she has publicly accused judges of being soft on crime and even filed grievances against two of them for unfairly rejecting cases. The State Commission on Judicial Conduct, which investigates such grievances, found one of those claims had merit and disciplined the judge for it. The judge, Franklin Bynum, is no longer on the bench.
Harris County commissioners have sought for years to encourage Ogg’s office to improve her intake process. In 2022, they awarded her an additional $4 million to hire more intake prosecutors and pay for extra overtime shifts.
She instead used the money to pay for raises for her senior staff and asked for additional funding several months later. Without it, she told county budget officials, she might have to shut down the intake unit over the weekend, a potential catastrophe for the jail.
Commissioners agreed to give the DA’s office another $4 million. This time, they said, she should use most of it for a pilot program in which at least five intake prosecutors would work directly inside the county’s jail processing facility. The idea came from Commissioner Adrian Garcia, who used to oversee the jail as county sheriff.
“It was with the anticipation that it would help overcrowding at the jail,” Garcia said.
Commissioner Rodney Ellis against the funding at the time.
“The problems with intake at the District Attorney’s office are well documented, as is the office’s refusal to adopt best practices that would improve the intake division,” he said in a statement, calling the money a “blank check.”
He and Garcia asked Ogg’s office to submit a report to commissioners on how the money was spent. More than a year later, they said, they have not received one.
Ogg’s office did not respond to questions about her discussions with commissioners or how she used the money. Joe Stinebaker, her spokesman, said the DA is “satisfied” with the current budget.
“We have no interest in going back and rehashing old arguments,” he said. voted