Data Raises Questions About Harris County D.A.’s Push for More Lawyers

This story was published in partnership with the Houston Chronicle.

When a line of prosecutors stepped up to the microphone at Harris County Commissioners Court in February, they told tales of long hours, endless to-do lists, and bloated caseloads well into the triple digits.

Their impassioned pleas and barrage of data were part of the push by the Harris County district attorney’s office for an unprecedented $21 million expansion that would add more than 100 lawyers to its staff.

But despite a weeks-long campaign, District Attorney Kim Ogg’s budget request failed. Now, four months later, records obtained by the Houston Chronicle and The Appeal indicate that the attorney caseload figures used to justify the request appear to overstate the office’s workload.

The data presented to commissioners and the public did not reflect that about two-thirds of the felony trial bureau attorneys consistently handle a smaller number of complex cases. Instead, it frequently presented the caseloads of the remaining third of the attorneys—those who handle over 900 cases on average—as representative of the whole trial bureau. The office also counted every charge in an arrest as a separate case, and included more than 200 cases in which defendants had not yet been arrested or fled after violating the conditions of their bonds.

Based on the numbers provided by the DA’s office, an average caseload for “felony two” and “felony three” prosecutors combined would be less than 600, if all positions were filled in each court—and would be even lower if chiefs were included. Exact staff assignments for that month were not released with the data.

A spokesperson said prosecutors met individually with the commissioners before the February budget vote. The Commissioners Court—a five-member elected body whose duties include setting tax rates and overseeing county courthouses—is the final word on expanding the DA’s budget.

“There were several conversations in which our lawyers privately went through in detail what our caseloads are and where, with staff for each of the commissioners,” district attorney’s office spokesperson Dane Schiller wrote in an email. “Please let me know if any commissioner is saying they feel they were misled in any way.”

When pressed for an explanation of the discrepancies and oversights in the data, he initially said he did not have enough staff to respond but commented days later on some of the follow-up questions.

The numbers

Three prosecutors—the chief, the felony two, and the felony three—are typically assigned to each of Harris County’s 22 felony courts, a structure that has been in place at the DA’s office for decades. The highest-ranking attorney, known as the chief, handles some managerial duties and high-level cases including capital murders. On average, according to data obtained through an open records request, felony chiefs handle 25 cases each.

Below the chiefs, felony-two prosecutors handle much larger caseloads including murders, aggravated assaults and other complex cases. As of Oct. 1—the date for which the district attorney’s office provided data—felony-two prosecutors averaged 199 cases each, with a low of around 100 and a high around 300.

The workhorses of the court are the felony-three attorneys who, records show, handle anywhere between 600 and 1,200 cases each, with an average caseload of 928.

Officials said the October data may have been updated before the January presentation, but former prosecutors said the average caseload numbers would not have changed over a few-month period.

In felony court it’s anywhere from 600 to 1,200—it’s just exponentially increasing.

Kim Ogg Harris County district attorney

From the data, it appears the DA’s office repeatedly relied only on felony-three figures when justifying the request for an increase in staffing, often without clarifying that the data did not include the lower caseloads for chiefs and felony-two prosecutors.

In an interview with the Houston Chronicle before the Commissioners Court vote, Ogg offered caseload numbers to justify her request to boost staff in both felony and misdemeanor courts.

“For the misdemeanor prosecutors, they’re up to 900 for the number three prosecutor, around 500 for the number two and less for the chief,” Ogg said. “And in felony court it’s anywhere from 600 to 1,200—it’s just exponentially increasing.”

Later, in February, Ogg penned an opinion piece in the Chronicle citing caseload figures ranging from 300 to 1,200. While two felony-three prosecutors had caseloads around 1,200 in the October data, it’s not clear where the 300 figure comes from as none of the felony-three prosecutors had fewer than 600 cases and felony-two prosecutors handle well below 300 cases on average.

As recently as Saturday, Ogg floated a similar caseload figure, this time at a community criminal justice forum that included Mayor Sylvester Turner and Commissioner Rodney Ellis.

“When our lawyers have 900 cases, each, at one time,” she said, “it’s hard to put pressure back on defense to say, ‘This person is eligible for diversion, why don’t you give us the information that we need to put them into a program that will really work?’”

It is unclear whether the figures cited Saturday and in the op-ed are intended to reflect misdemeanor, felony, juvenile, or specialty prosecutor caseloads.

The data laid out in a January budget proposal appears similarly murky.

“In 2018, [Harris County District Attorney’s Office] Felony prosecutors had an average of 930 felony cases pending,” the proposal notes.

Elsewhere in the same budget document, the DA’s office appeared to give a more accurate picture of maximum felony-three caseloads in one instance. But it’s not clear whether the figure included bond violation cases, and officials have repeatedly declined to explain the data in detail.

“Throughout our correspondence and presentation with Commissioners Court, words or terms may have changed slightly,” Schiller wrote in an email. “These changes are attributable to brevity and readability; terms of art that are not necessarily meaningful to people outside of the District Attorney’s Office were eliminated in some communications, but the total caseload and number of prosecutors was always included in all communications to continue a unified message and consistent statistics.”

Bond violations and non-arrests

While the average chief handles 25 cases, five of those are listed in the data as “non-arrest/bond forfeitures”—cases that often require less work or are left dormant for weeks or years. For felony-two prosecutors, about 58 of the average 199 cases are non-arrests and bond forfeitures, while for felony-three attorneys it’s about 252  out of 928 total.

In bond forfeiture cases, a judge issues a warrant when the accused fails to show up for court or violates bond conditions. At that point, according to former prosecutors, there’s typically no work for the attorneys on either side until the accused is caught.

“For the most part, you shouldn’t be including those,” said Murray Newman, a former Harris County prosecutor who now practices criminal defense. “You could very easily have something in there from 1984 that literally requires no work.”

In non-arrest cases, the defendant has been charged, but police haven’t yet made an arrest; thus, there is no defense attorney appointed and no court dates to attend.  Prosecutors could potentially do some work preparing the case or presenting it to a grand jury.

But Nathan Hennigan, a defense attorney and former prosecutor who resigned when Ogg took office, said that rarely happens.

“It is simply false that prosecutors are sitting around working on all the inactive cases,” he said, referring to non-arrests and bond forfeitures. “If the prosecutors had enough free time to do that, they certainly wouldn’t be in need of additional staff.”

Removing non-arrests and bond forfeitures from the data would lower average caseloads by 20 to 30 percent.

It is simply false that prosecutors are sitting around working on all the inactive cases.

Nathan Hennigan defense attorney and former prosecutor

Though it’s not clear how many cases are bond forfeitures and how many are non-arrests, and officials did not clarify, Schiller defended including those numbers in the data.

“Regardless of case status, all cases are treated equally with regard to preparation and review,” he said. “Non-arrest and bond forfeiture cases require no less work than any other case.”

Multiple attorneys disputed that statement and Tom Berg, a top Ogg lieutenant forced out of the office last month, said he was surprised to learn of the inclusion of bond forfeitures in the data.

“I didn’t know that that was in there,” Berg said. “That does misrepresent what the caseload is for them, and the difficulty is that there’s enough active cases to justify the increase—yes, they really do need help.”

Three charges, three cases

In determining caseload figures, the DA’s office counted unique charges and not unique arrests or defendants—even though one arrest can frequently result in multiple charges that are handled as one case.

For example, if a person were accused of murder, and picked up at the scene with drugs and an illegal gun, that arrest could net at least three different charges. Often, according to Berg, those cases would be resolved in the same plea agreement. In the data provided to commissioners and to the Chronicle, the DA’s office would count each of those three charges as a separate case.

“Often a defendant gets charged with multiple cases out of one event,” Hennigan said. “In those situations, there isn’t a significant difference in workload for the prosecutors whether he is charged with one case or five cases.”  

Schiller, the office spokesperson, disputed that.

“The premise that multiple cause numbers with the same defendant ‘don’t require much additional work,’ ignores the fact that each case and each cause number is a separate offense,” he wrote. “Each offense (each charge) can take the prosecutor and investigator in a different direction to collect the evidence, develop strategies, and prepare for meaningful plea bargains, dismissals, or trials.”

Debating caseloads

Four members of the Commissioners Court—including all three Democrats who voted against the budget request in February—did not offer comment on the caseload figures.

But Commissioner Steve Radack, a Republican who offered staunch support for Ogg during the budget cycle, said he did not feel that the DA’s office misrepresented data and reiterated his concern about the county’s refusal to fund Ogg’s request for more prosecutors.

“It’s extremely unfortunate that she didn’t get it,” he said. “Frankly it’s a misjustice.”

During budget discussions in February, County Judge Lina Hidalgo—a Democrat who heads the Commissioners Court—questioned whether prosecutors could simply lower their caseloads by charging fewer people and leaning more heavily on diversion alternatives.

“This is not the only way,” she said, “and certainly not the most cost-effective way to decrease prosecutor caseloads.”

Though Adam Gershowitz—a William & Mary Law School professor who co-authored a 2011 study on district attorney caseloads—raised concerns about the representations in the data, such as the inclusion of bond forfeitures, he stressed that too few prosecutors can have a negative effect on the legal system, leaving people waiting behind bars as their cases get reset instead of resolved.

“We could have debates about if [prosecutors] should charge less and maybe they should,” he said. “But they are overburdened and it’s bad on so many levels when the district attorney’s office is overburdened.”

A ‘tactical mistake’

Since the Commissioners Court rejected Ogg’s hefty hiring request, she has repeatedly signaled plans to try again. In April, Ogg had success with a much smaller request, winning approval for four more attorneys in the environmental crimes division, weeks after a petroleum storage tank fire at Intercontinental Terminals Co. yielded criminal charges.

“The tactical mistake they made was coming in with so much at the outset without the support and without addressing what was immediately necessary,” Berg, the former Ogg lieutenant, said. “When we set out with a focused ask, there was less resistance.”

Even if the DA’s office manages to gain approval for an expansion, it’s not clear how easy it would be to fill those positions. Over the past two years, Ogg’s administration has struggled with high turnover, as more than 140 prosecutors have left since she was elected. Officials have chalked it up to low pay, as well as difficult working conditions since Hurricane Harvey flooded the courthouse, forcing prosecutors to move to temporary offices even as they struggled with a lack of courtroom availability.

Currently, according to the county budget office, there are 19 unfilled attorney positions out of an office of a little more than 300.

“If you think how long it will take to fill 100 slots, it could have been done in a more piecemeal fashion,” Berg said. “They asked for way too much, and all at once.”

Additional reporting by Houston Chronicle reporter St. John Barned-Smith.