Harris County District Attorney Kim Ogg has ordered prosecutors to make a plea recommendation of life without the possibility of parole in every pending capital murder case that’s more than a year old, the Houston Landing has learned.
Ogg’s instruction, delivered last week and detailed in internal communications obtained by the Landing, upends years of office precedent, could complicate prosecutions in more than 60 of the county’s most serious cases and creates uncertainty for victims’ loved ones.
“Kim asked us to place a case note in each pending capital murder in your division that read ‘Ogg administration recommendation is life without parole,’” wrote John Jordan, the agency’s most senior felony prosecutor, to the members of the office’s homicide division, in an email Monday. “We did not discuss the facts of any of your cases during that meeting, nor did we discuss the legal issues, theories or mitigation on any of your cases.”
Jordan declined to comment for this story.
Ogg’s decision, which current and former prosecutors called “unprecedented” and “offensive,” comes less than a month before the two-term incumbent is due to leave office and upsets standard procedures around capital plea recommendations.
Sean Teare, who defeated Ogg in March’s Democratic primary and will take office Jan. 1 after his victory in November’s general election, blasted the blanket recommendation as an “unbelievable” deviation from the norm that could complicate cases ultimately unsuitable for life without parole.
“In my 14 years inside that office, I’ve never ever heard of putting a life without parole (recommendation) on a capital murder before all the evidence and mitigation and everything is in, let alone not talking to the line prosecutor handling the case,” Teare said. “It’s not realistic for a variety of reasons… There’s a potential that there are some innocent people in that group and we’re going to dismiss the case as evidence comes in.”
In a statement to the Landing, Ogg painted a different picture, saying an offer of life without parole on non-death capital cases is typical in Harris County — at least until the office’s Capital Committee, a specialized group of prosecutors, decides otherwise.
“The Harris County District Attorney’s Office has historically recommended a sentence of life without parole on all capital cases in which we have not elected to seek the death penalty,” Ogg said. “Any lesser plea offer must be passed through the Capital Committee and always occurs late in the process of resolving the case.”
Current and former prosecutors and defense lawyers, however, disputed that statement.
“That’s just not true,” said one current prosecutor, who asked that their name be withheld out of concern for repercussions. “We do not make recommendations of life without parole routinely…. Until a case goes to the Capital Committee, there is no offer.”
A spokesperson for Ogg did not reply to a request for further comment.
Teare said the families and loved ones of homicide victims will suffer the impact of Ogg’s decision when some cases inevitably resolve with lesser punishments.
“I don’t understand the benefit (of the change) for anyone, but I certainly know what the negative is — retraumatizing these families that have gone through the most unimaginable tragedy to begin with,” he said. “We’re going to have all these families… feeling like their loved one’s case is just a political ping pong (ball).”
‘Who would sign up for that?’
The email Jordan sent to the homicide division on Monday made clear his own disagreement with Ogg’s decision.
In the email, Jordan said he “circled back” with Ogg a week after the initial meeting to register his disagreement with a “blanket recommendation” that factored in neither “the facts of the case, culpability of the Defendant, (nor) whether they are a party to the offense and not the shooter and (did) not consider any mitigation evidence.”
Jordan said he reminded Ogg that such considerations are “always” taken into account before prosecutors make a recommendation in a capital case. Ogg, however, pushed back, according to Jordan’s email, stating that a review of the facts should occur “at the time of the presentation to the Capital Committee.”
“Until that is done, the default recommendation is ‘Life Without Parole,’” Jordan wrote to the homicide division prosecutors.
That policy is new, said prosecutors and defense lawyers familiar with Harris County’s procedures around plea recommendations in capital cases.
Murray Newman, a former Harris County prosecutor and defense lawyer who currently is representing “four or five” capital murder defendants, said prosecutors only make plea recommendations after an extensive review of the evidence and consultation with the Capital Committee — and, except in rare cases where the death penalty is an option, those recommendations are never so onerous as life without parole.
“Who would sign up for that?” Newman said. “There’s no reason to accept it. The only incentive that any defendant has to take life without parole is if the alternative is the death penalty.”
In practice, Newman said, the blanket recommendation of life without parole is unlikely to derail any prosecutions — but it could “create a headache” for Teare’s incoming administration when the plea recommendations inevitably change.
“What (Ogg) has basically done is set an atmosphere in which she can express some level of mock outrage (about) any plea negotiations done during the Teare administration,” said Newman, a longtime critic of Ogg. “The fact that she did it as a blanket move shows you what her intent was — to set up the incoming administration to look soft on crime for (modifying) plea negotiations that she had already entered into.”
Ogg has been accused by critics of weaponizing her office against political rivals, culminating in formal censure by county Democrats last December. Ogg’s office did not respond to a request for comment on Newman’s remarks.
Teare declined to speculate on Ogg’s motives for the policy change, but acknowledged some cases will result in lesser penalties. For example, the blanket plea recommendation could interfere with prosecutors’ ability to get co-defendants to testify against each other in exchange for a lesser sentence.
Teare also pointed out that some of the cases affected by Ogg’s recommendation could instead qualify for the death penalty based on as-yet unreviewed evidence.
“If any defense attorney came and wanted to jump at one of these offers, the big concern (I would have) is that the defense attorney knows that one of these individuals potentially has two or three other bodies that are unsolved,” Teare said. “That’s terrifying, and that’s why you don’t (make a blanket recommendation).”
Families hit hardest
Ogg’s instruction is unlikely to have a material impact on how the homicide division moves forward with their capital cases, according to Jordan’s email.
In it, Jordan instructed the homicide division to insert Ogg’s recommendation into their case files but otherwise to proceed as though nothing had changed.
“You are to continue working on these cases because you will be presenting them to the Capital Committee in the future,” Jordan wrote. “The ultimate determination will be made on an individual basis after considering all of the relevant factors.”
Teare and others expressed concern that the families and loved ones of homicide victims still could end up confused and disappointed if their cases end with lesser penalties. Ogg, Jordan wrote in his email, also asked that prosecutors ensure the office’s contact information for victims’ families is current “so that she can have a list of the next of kin in all the Capital Murder cases.”
“The only reason I can think of for that is to convey this offer… to the victim’s family,” Teare said.
In her statement, Ogg noted that Texas law requires prosecutors to notify victims and their families of updates in their cases.
The current prosecutor who criticized the order said a succession of different plea recommendations could be emotionally devastating for victims’ loved ones.
“To play with their emotions and make them think that (life without parole) would be the outcome of a case without knowing if there are any real issues is what’s really, really upsetting to us,” the prosecutor said, adding that Ogg’s decision has been met with dismay within the office. “Are they really going to start reaching out to our families and saying our offer is life without parole when that might not even be appropriate on this case?”
Newman was more blunt, calling Ogg’s instruction “political theater.”
“She’s adding a level of childishness to the most serious of crimes, and that’s disgusting,” he said.
Ogg previously has spoken out against manipulating victims for political gain, notably in December 2016, shortly before she assumed office for her first term. Ogg, who had already notified several dozen prosecutors that they would be fired, accused some of using victims to undermine her incoming administration by calling families and setting expectations for the changes to come.
“It appears that some of these individuals are sabotaging their own cases,” Ogg said at the time, according to a report by the Houston Chronicle. “It’s the use of victims as pawns by disgruntled employees that shows not just a profound disrespect for other people but a lack of professionalism that won’t go unaddressed.”
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