High turnover continues to plague DA’s office
Harvey backlog, pay blamed; some point to lack of leadership
In the 28 months since a new reform-minded district attorney took over as the county’s top prosecutor, more than 140 lawyers have left the office, generating a sharp uptick in turnover that officials attribute to low pay and fallout from Hurricane Harvey.
That figure, which includes the slew of lawyers District Attorney Kim Ogg let go at the start of her term, represents a combination of voluntary and involuntary departures that have cost the county more than $1.5 million in comp and vacation time payouts.
“Since Harvey, the criminal justice system in Harris County has been strained, still lacking a fully functioning courthouse,” Ogg said. “The community should be concerned that we still do not have a fully functioning criminal justice system nearly 20 months after Harvey.”
But some current and former staffers chalked up the departures instead to changing office culture and lack of leadership, while defense lawyers wondered if the turnover might stem from a reluctance to embrace the new administration’s progressive priorities.
“There are some folks who just will not embrace Kim Ogg's progressive views of trying to use treatment courts, drug treatment diversion and less reflexive use of the death penalty if Jesus came down and told them it was the right thing,” said defense attorney Pat McCann, a former president of the Harris County Criminal Lawyers Association.
Whatever the cause, constant churn can have consequences: Seasoned prosecutors have left the office, leaving behind less guidance and less consistency — though some experts wondered if that could have upsides.
About 40 lawyers — more than 10 percent of the office — were let go, quit or retired effective Dec. 31, 2016, as Ogg prepared to take office the next day after unseating her Republican predecessor. Some were notified they would not have jobs in the new administration; others left voluntarily.
During her first year, another 43 attorneys left, according to the county budget office. In 2018, that number ticked up to 56 — more than any other year in the past decade.
Given some additional departures since the start of this year, that adds up to more than 140 attorneys who have left the office since Ogg took the helm. That’s more departures per year than during any other administration in the past decade — and roughly the same as in all four years Pat Lykos held the office.
But over that time, the number of attorneys on staff has grown, dipped and grown again, so a few dozen departures would have slightly less impact now than in years past.
Last year, attorney turnover hovered just under 18 percent, according to budget office data. In Ogg’s first year in office, turnover hit 27 percent when the Dec. 31 departures are included.
In the decade before, only two years — 2011 and 2013 — saw turnover hit as high as 17 percent.
Harsh working conditions
One of the most commonly cited culprits driving the uptick in turnover is the fallout from Hurricane Harvey. Since the storm blew through and flooded the Harris County Criminal Justice Center, courtroom space has been at a premium, making it harder for judges to schedule trials and harder for prosecutors to gain the valuable courtroom experience that brings many to government work in the first place.
“To be fair to her, I don’t think there’s an administration on the planet that would have not lost a large number of people just due to the conditions of Harvey,” McCann said. “Why would you take public servant money if you can’t even get trial experience because you can’t get to trial?”
Multiple current prosecutors, who asked not to be named as they were not authorized to speak on the record, highlighted that as a problem impacting office morale. They — and Ogg — also pointed to the logistical headaches of moving buildings repeatedly after the storm, sometimes doubling up in offices and lugging files across town to court every day.
“That isn’t something any of our employees signed up for, public servants or not,” Ogg told the Chronicle last year. “Post-Hurricane Harvey, working conditions have been so harsh that when combined with the long hours and low pay, it is becoming harder as employers to compete with the private sector.”
Loss of experience
To some current and former prosecutors, though, culture and leadership seem as much the problem as the shifting work conditions and lack of trials.
“Harvey did legitimately throw a wrench in everyone’s system,” said defense attorney Nathan Hennigan, who worked as a prosecutor until he resigned in 2016 as Ogg took office. “But at some point you have to stop blaming everything on that.”
Former felony prosecutor Josh Phanco, who left the office last month, concurred.
“Basically it’s a leadership issue,” he said. “There’s a lot of different things going around — they’re overworked because of the hurricane or they’re not going to trial — but really it’s that there’s no leadership. There’s no one you look at and say, ‘Oh, I want to be that guy.’ They all got fired.”
Among the concerns they cited were micromanagement and the reliance on top attorneys without recent prosecutorial experience, issues also voiced by a number of current employees who declined to be named on the record.
Danny Werlinger, an ex-assistant district attorney who left the office last year, complained about a lack of prosecutorial discretion and echoed concerns about leadership.
“When that purge came through,” he said, referencing the large number of departures at the start of Ogg’s term, “a lot of the people that we would go to for, ‘Hey what do you think about this?’ — a lot of the mentoring was gone.”
Even though a spike in turnovers represents a loss of institutional knowledge, some experts said that isn’t necessarily problematic.
“When prosecutorial administrations change, there are always winners and losers and there is frequent turnover among senior personnel,” said Robert Dunham, an attorney and executive director of the Death Penalty Information Center. “When that happens, you lose an awful lot of good experience — but you also lose an awful lot of bad experience, too. If there’s going to be a culture change, the only way that effectively happens is when the existing personnel buys into the change or leaves.”
‘Culture shift’
Jennifer Laurin, a professor at the University of Texas School of Law, said higher turnover could be expected in any office where the new DA ran against past practices.
“That’s a call for culture shift within an office,” she said, “and you can either do that by changing hearts and minds or bringing in new hearts and minds.”
It could also, she said, lead to “less consistent” outcomes.
“But introducing randomness and uncertainty doesn’t necessarily mean that you have less justice than you otherwise did,” she said.
Local attorneys such as Hennigan and McCann worried that less-seasoned prosecutors could actually make life harder for the defense.
“Less-experienced prosecutors are less likely to dismiss cases that should be dismissed,” said Hennigan, who now does defense work. “The vast majority of cases never go to trial, so in resolving those cases I think defense attorneys like having experienced prosecutors. But if you know you’re going to trial you probably want more of a novice to go up against because then you have an advantage.”