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Harris County D.A. will no longer prosecute “trace cases”

Harris County D.A. will no longer prosecute “trace cases”


Harris County District Attorney Kim Ogg made good on a central campaign promise this week, announcing that her office will no longer prosecute “trace cases” that involve trivially small amounts of drugs, or drug residue. In an interview with the Houston Press, Ogg said that although there is still no formal policy prohibiting these prosecutions, her office stopped pursuing such cases in late July.

“It’s been a point of contention with most Houstonians who don’t appear to agree that it’s a wise use of taxpayer dollars to prosecute people in possession of empty crack pipes that contain drug residue,” Ogg told the Press. “And while not all the cases follow that example, many, many do.”

Trace cases have a politically volatile history in Harris County. Heeding the broader shift toward criminal justice reform as Texas struggled with its bloated prisons, former District Attorney and Republican Pat Lykos changed the office’s policy when she took office in 2010, instructing her deputies to prosecute cases involving 1/100th of a gram of drugs as misdemeanors, rather than felonies as the office had in the past. The move saved the county money and greatly reduced its crowded jail population.

But it also drew the ire of local law enforcement, who argued that their ability to file felony charges in residue cases was instrumental to efforts to lock up people guilty of robberies and burglary. By the end of 2011, a coalition of six Harris County police groups had announced a vote of “no-confidence” in Lykos.

When Lykos lost her seat to Mike Anderson in late 2012, the new district attorney made reversing her policy on trace cases one of his first priorities. After Anderson passed away in 2013 and his wife Devon Anderson took his place, she maintained his policy, and the office continued to charge drug residue cases as felonies. The prosecutions of trace cases became a prominent point of contention between Anderson and Ogg on the campaign trail.

Unlike Lykos, Ogg is moving forward with the support of the Houston Police Officer’s Union, though it is tempered. The union’s president, Ray Hunt, told the Houston Press that “we’re not going to make a big deal about this as long as these people who break into cars, which we believe are the big crack users, that when we catch them, they’re hammered and they’re not given slaps on the hand.”

As shown in other jurisdictions, assurances from district attorneys that they will step back from prosecuting certain crimes don’t always have meaningful results. In Brooklyn, for example, former district attorney Ken Thompson made waves in 2014 when he announced his office would no longer prosecute most low-level marijuana cases. After Thompson passed away, current district attorney Eric Gonzalez took his place, vowing to maintain Thompson’s policies.

But a recent investigation from WNYC found the Brooklyn District Attorney’s office only throws out roughly one out of every five low-level marijuana arrests. (Gonzalez said he believed most of these charges were for smoking marijuana, which is classified as the same misdemeanor as low-level possession, and contends his office is still working to reduce possession prosecutions.)

Now, Houstonians will wait to find out if Ogg’s word — which again, is not yet a written policy — will make a meaningful dent in the number of trace case prosecutions in the county. With voters and local law enforcement behind her, there is little reason for her to stray from her stance.

When Some People Are Below The Law

When Some People Are Below The Law


Can a prostitute be raped? As a young law student, this was an interesting question. As an experienced lawyer, this is a no brainer. The answer is: of course. The fact that someone may have engaged in illegal acts does not give other people license to commit crimes against that person. This is true because, under our justice system, no one is supposed to be above the law and no one is supposed to be below it.

However, the justice system in this country does not always operate as it should. The recent killing of Anthony Smith reminds us that, in fact, certain people are considered below the law. Judicial Circuit Judge Timothy Wilson’s decision to acquit St. Louis Metropolitan Police Department Officer Jason Stockley of all charges drips with disdain for Smith.

As a long-time prosecutor who has tried dozens of cases before juries, I recognize that I am not in a position to second-guess the decision of someone who sat through the entire trial and observed the composure of witnesses. Having never been a police officer, I am also not qualified to judge the level of danger they face in order to keep communities safe, though I know that many brave officers are killed in the line of duty. But, I do know how to recognize a biased decision where one side has clearly been given every benefit of the doubt and the other side is largely dismissed as a couple of thugs who basically deserved what they got.

In brief: On December 20, 2011, two officers, Jason Stockley and Brian Bianchi, drove by two people, Anthony Smith and Kirkwin Taylor, engaged in what the officers deemed suspicious behavior. When the officers rapidly pulled their car behind Smith’s car, Smith and Taylor jumped in their car, rammed the officers’ car twice, purportedly struck Stockley’s hand that was holding a gun, and then quickly drove off. Smith drove into oncoming traffic on the wrong side of the road and Bianchi intentionally rammed into Smith’s car, causing it to crash. Stockley and Bianchi then both ran up to the driver side of the car. Stockley appeared to be wrestling with something or someone. Seconds later, Stockley fired 5 bullets into Smith, one from no more than six inches away. Bianchi, who was in a position to watch what was happening, never unholstered his weapon. Smith died after being removed from his car. Later — and after reaching into his own car — Stockley climbed into Smith’s car and claimed to have found a gun tucked between the seat and the center console. Stockley’s DNA was found on the gun. Smith’s was not.

Judge Wilson spent 30 pages explaining his not guilty verdict without once expressing concern about the officers’ conduct. He summarily dismissed audio of Stockley saying during the chase “we’re killing this m…f…er, don’t you know,” because the words before and after are garbled and he maintained he couldn’t determine the context.

I’m not sure there are any innocent contexts when someone is heard saying “we’re killing this m…f…er” and the m…f…er is then killed.

Judge Wilson noted that when Smith drove at speeds up to 87 miles per hour on wet roads, he was “endangering other drivers and pedestrians.” He did. But Judge Wilson failed to mention that when Stockley fired shots at that moving vehicle, he, too, endangered other drivers and pedestrians.

Though prosecutors argued that Stockley likely planted the gun, Judge Wilson seemed unconcerned that the same officer who had just shot Smith at short range also searched Smith’s car and unloaded the gun without gloves. He never suggested in his opinion that these tasks would more appropriately have been handled by a crime scene officer.

Judge Wilson also wrote that “based on . . . nearly thirty years on the bench, . . . an urban heroin dealer not in possession of a firearm would be an anomaly.” Judge Wilson is clearly not a statistician. Even assuming Smith was “an urban heroin dealer” in St. Louis, a city where 256 people died of heroin overdoses in 2016, it is unlikely that Judge Wilson knows whether he was an anomaly or not. But it is a cute line to dirty the decedent. Judge Wilson also denied considering Smith’s felony record, though, conveniently, he mentioned the marijuana in his system.

I do not know why the State did not call Officer Bianchi to the stand. It did call Smith’s passenger, Taylor, who testified that he never saw a gun in the car. Judge Wilson dismissed Taylor’s credibility, in part because of a felony drug conviction that resulted in a suspended sentence.

I do not pretend to know what happened on December 20, 2011. But I do know what Judge Wilson wrote on September 15, 2017. His opinion makes it clear that, as long as he presided as judge, the State was probably not going to win a trial with Anthony Smith as the victim. And I understand why that upsets some people, including me.

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The arrest and charging of Karla Frye marks a pivotal moment for protest in St. Louis County

Her case says a lot about prosecutorial discretion.

Rev. Karla Frye (bottom row, center)
Flickr user Lynn deLearie

The arrest and charging of Karla Frye marks a pivotal moment for protest in St. Louis County

Her case says a lot about prosecutorial discretion.


Like many mass arrests in St. Louis County, the events leading up to a police roundup at the Galleria Mall last Saturday began with a peaceful protest.

Demonstrators gathered and marched at the mall, located just outside the city with the highest rate of police killings in the U.S, in response to the not-guilty verdict of former police officer Jason Stockley. They were there to call out law enforcement’s ubiquitous use of violence against Black bodies without consequence — to disrupt business as usual. But the nonviolent act ended with a militarized police response, the overnight detention of 22 people, and numerous criminal charges.

Officers say they were asked to intervene by the mall’s management because protesters were impeding shoppers. They allege most people followed orders to leave while some remained. At that point, they started to make arrests. (Video shows these arrests involved pummeling people to the ground.)

The sequence of events on Saturday seemed to play out the way many protests — and subsequent law enforcement crackdowns — have since 2014, when Mike Brown was gunned down by Darren Wilson in Ferguson. Police arrived at the scene of a nonviolent demonstration and used physical force to quell it. But what happened after made the encounter markedly different from others. For what appears to be the first time, one of the people arrested at the protest, Karla Frye, faces charges under a statute that now classifies officers as “special victims.”

According to a charging document submitted to a grand jury by St. Louis County Prosecuting Attorney Bob McCulloch on Sunday, Frye committed a assault in the third degree by jumping onto the back of officer John Blake. The document lists Blake as a “special victim,” a designation in Missouri’s criminal statute that is reserved for specific groups of vulnerable people and increases the penalties for anyone who assaults or commits a hate crime against them. Due to pressure from the law enforcement community and the so-called Blue Lives Matter movement that grew in response to Black Lives Matter and the Ferguson Uprising in 2014, Missouri legislators modified the statute to include police officers. Anyone accused of assaulting an officer under this new classification now faces a Class D felony, which can result in a seven-year prison sentence and a $10,000 fine. Without the special victim designation, an assault is considered a lesser Class E felony — one that comes with a maximum prison sentence of four years.

Local criminal defense attorneys believe Frye is the first protester prosecuted under the updated statute. She also stands accused of rioting, resisting arrest, and interfering with an arrest.

Missing from the charging document, however, is any mention of Blake’s chokehold on Frye’s 13-year-old grandson, and that Frye was reportedly trying to save him. One photo of the scene appears to show Frye on the officer’s back, but a photo taken at another angle shows something else entirely. In it, Blake’s arm is gripped tightly around the young boy’s neck. A distressed Frye has one arm — not her entire body — slung around Blake’s shoulders. She appears to be pleading with the officer to let her grandson go.

Frye said she was at the protest and heard police tell people to disperse, but things escalated quickly. “I started yelling and the guy grabbed me and somebody else came up behind me and grabbed me. And I was telling them to stop, leave me alone, let me go,” she said during a jailhouse call. “My grandson started to help me and they grabbed him, so that upset me more, it became a melee.”

Derk Brown

Share Another angle of the grandmother who was only trying to protect her grandchild who was being choked by police at the Galleria Mall in St.Louis Mo. 😢😡😢

Like all local prosecutors responsible for charging decisions, McCulloch is tasked with interpreting and applying state law in the pursuit of public safety. After the arrests on Saturday, he had the power to decide if criminal behavior had actually occurred at the mall. He had leeway to determine if the peaceful protesters who allegedly disobeyed orders, or the police who choked and bodyslammed people to the ground, were the real danger. Cops were excluded from the group of seven people he charged, meaning McCulloch used his authority to define protesters as the threat.

By charging Frye with assault, he used that authority to define what Frye did as a form of violence, as opposed to classifying the violence displayed by officers as such.

“I think that charging a 57-year-old grandma — who’s a reverend, who’s active in the non-profit community — with assault [in the] third degree, under this new law, is not an accident,” Executive Director Thomas Harvey of the ArchCity Defenders, the legal group representing Frye, told In Justice Today. “That’s a very clear example of the way prosecuting attorneys’ offices can advance their own agendas through the discretion that’s afforded them. I think you can see similar allegations brought against different individuals in different jurisdictions and not see this type of felony charge.”

The aggressive prosecution of protesters, and people perceived as protesters, is par for the course throughout St. Louis County. McCulloch, a man who famously comes from a family of cops, has historically aligned himself with the law enforcement community by declining to prosecute officers who use fatal forceseverely charging protesters, and refusing to penalize cops who bully and use a disproportionate amount of force against them. The updated statute is yet another tool he can use to charge people for what the law enforcement community considers hostile interactions with officers — and Frye is his first target.

“In this event, they charged [Frye] with the most serious possible crime, after what was obviously a chaotic situation,” Harvey said. “Bob McMulloch has been very clear about his goal, in the past, to protect law enforcement. I’m sure he just envisions this as part of his job, but the discretion in charging illustrates part of his motivations.”

McCulloch appears to be motivated by his alliance with law enforcement. But Missouri is far from the only state where legislators are introducing and passing so-called Blue Lives Matter bills. Even though harsh penalties already exist for people who harm or threaten police, these bills have sprung up across in the country following the expansion of the Black Lives Matter movement, as well as a few officer shootings that garnered national attention. This year alone, more than a dozen states have increased penalties for engaging with officers in a seemingly aggressive way.

“It’s pandering to a very pro-law enforcement crowd, the tough on crime crowd,” Harvey said. “You simultaneously add another level of punishment for someone charged on a felony and you are able, in an optics way, to say you are increasing protections for police officers.”

But activists and legal experts have long decried these bills as a way to vilify people calling out injustice that goes unpunished by the government — exactly what happened at the Galleria Mall. As Executive Director Vince Warren of the Center for Constitutional Rights told the Nationthe bills provide a legal mechanism to treat protesters of police violence as “enemies of the state.” With regard to one such bill in New York, he said it “gives the police added incentive to claim an assault when being lawfully confronted by protesters, which will deter legitimate protest even when those assaults don’t actually happen.”

In St. Louis County, it is abundantly clear whose side the law is on. But if Frye is prosecuted to the fullest extent of the law, it will be a turning point for protesters in a place where they are already treated as enemies of the police. To Harvey, the situation is “absurd.”

“The Jason Stockley verdict couldn’t be any better illustration of a heightened sense of protection for police officers in America. He’s on tape saying ‘I’m gonna kill this motherfucker,’ and then 45 seconds later the man is dead. Anthony Lamar Smith had been shot by him five times,” Harvey said. “And yet a judge and the City of St. Louis found him not-guilty, and found all of that evidence not convincing.”

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