Saturday, November 16, 2019

I Stand With Andrew Smith

I debated about writing this entry.  It's politics in a county that I do not live, personal to others where I'm not directly involved, and a potential landmine.  But one of those involved is a close friend and his story has now been printed in the Houston Chronicle.  Plus what's the point of having a soapbox, a bully pulpit, if you're not going to use it to speak truth to power.  To use it for good.

I've known Andrew Smith for around sixteen and a half years now.  We met in law school at Baylor.  Part of the spring 2003 starting class.

Andrew is instantly likable.  Funny, with a contagious laugh.  Warm, smart, deeply passionate about the law and justice.  His convictions run deep.

Andrew and Kristina Joseph were the two people I could study with well.  We had similar habits, needing to talk, to laugh, to break the monotony of silent reading and absorption.  Periods of intense quiet study followed by near extreme silliness.  Plus we were the group that knew to take breaks to go eat well.

Andrew, along with Tim Reidy and Danny Noteware, would be one of the strongest friendships emerging from law school.  Fellow road tripper.  Groomsman in my wedding.

He's family.

That's why I feel the need to show my support.

After law school, Andrew started work at the Harris County District Attorney's office.  For the past fourteen years and two and a half months, he has served there admirably.  He has served through six different district attorneys.  Under district attorneys on both sides of the political spectrum.  Which makes this weeks events all the more astounding and infuriating.

On Monday, November 11th, Andrew was informed that his employment was no longer desired by Harris County District Attorney Kim Ogg, after he declined the "option" of resigning.  Ogg is accusing Andrew of lying in court regarding a statement he attributed to Ogg more than a year ago during an appeal in a double-murder case.

The debate centers around a statement regarding the firing of the original prosecutor in the double-murder case.  In the 2018 appeal, in a courtroom conversation before the hearing, the defense lawyer, Randy Schaffer, questioned why Gretchen Flader, the original prosecutor in the original 2014 double-murder trial, had been let go, suggesting that it might be because she was "untrustworthy" or "sneaky," which could be relevant to the prosecutor's credibility and the underlying trial.

"If she [Ogg] fired her [Flader] because she found information indicating that Flader is not a credible person or Flader has engaged in misconduct or Flader's untrustworthy or whatever, that's absolutely relevant because it shows that the office that is now defending this capital murder conviction threw out the prosecutor that got the conviction, and so why they didn't rehire her well could be material in this case."

Andrew pushed back with what he had heard in a personal conversation with Ogg from January 2017, his first one-on-one meeting with the new District Attorney.  "If we're getting into personal conversations with Ms. Ogg, Ms. Ogg told me the reason why she let go of Ms. Flader is because she was sleeping with the man who was dealing with the Jenny case."  The "Jenny" case was a heated political issue during the 2016 election season where prosecutors under then-District Attorney Devon Anderson jailed a rape victim, "Jenny," to ensure she'd appear in court.  Flader's boyfriend, Nick Socias, handled the case.  As you can imagine, that was a political firebomb of a case, that damaged Devon Anderson re-election and contributed to Ogg's election.

Ogg filed a seven-page filing on Wednesday following the termination to correct the record in the appeal.  Ogg wrote that she only learned this month of Andrew's statements regarding the reason for Flader's firing.  "On or about November 6, 2019, during an internal conference with other prosecutors reviewing the procedural status of this case, District Attorney Kim Ogg became aware for the first time of writ prosecutor Andrew Smith's false statement to the trial court when she read a partial transcript."  Ogg wrote that she actually let Flader go for failing to turn over evidence in a different case and not because of her relationship with Socias.  This was the same basis provided in opposition to Flader's unemployment claim with the Texas Workforce Commission.  "The reason is because of prosecutorial misconduct.  I did not invite her back to the office for any other reason other than her own misconduct."

Beyond the truth of the statements made, Ogg's filing is inaccurate for independent reason.  Though she wrote she had only learned of Andrew's statement this month, she actually learned of it at least three months earlier, in mid-August, when defense attorney Schaffer says he notified her both in person and by email.  According to Schaffer, "I don't know why she made this misrepresentation to the court, but it's not true.  It's all politics, it's not justice."  Ogg plans to file a second correction, clarifying she learned about it in August, but only confirmed it in November.

I don't know Kim Ogg at all, but something isn't right here.

I don't know anything about her.  I don't know her character.  What I'm seeing now of Ogg is that she is impugning the character of my friend, has terminated his employment, and is doing so in a way that could threaten his license.

She's done so in way that already has a major misstatement in it that has already been proven untrue by an unrelated party.  All while her office has hemorrhaged prosecutors, with more than 140 lawyers leaving the office in her 35 months in office.

I know Andrew's character, and there is no way he would make a false statement in court.  That would not happen.

I can see the outpouring of support that he has received and the near hundred comments that he has gotten online that vouch for his character.  I can only imagine the support in person has dwarfed that online.

It's A Wonderful Life closes with Clarence the angel putting an inscription to George Bailey in his copy of The Adventures of Tom Sawyer.  "Remember no man is a failure who has friends."  Andrew's friends have risen up to show their support, and their voices speak loudly.  I will remain one of them.

I stand with Andrew Smith.

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