The article from Jenny Vrentas of the New York Times regarding the grand-jury process that culminated in no indictments for Browns quarterback Deshaun Watson detailed extensive communications between lawyer Rusty Hardin and assistant district attorney Johna Staliings.
Harris County District Attorney Kim Ogg, who runs the prosecutor’s office in Houston, recently was interviewed by Mike Melster regarding, among other things, the reported extent of the contact between Hardin and Stallings.
“Totally normal,” Ogg said. “We contact defense lawyers. They contact us. A communication is far different than collaborating or working together to achieve an outcome. That just didn’t happen. It’s not ethical. And it’s not what we do. And it’s not what happened in this case.”
Ogg also delicately chided Vrentas for her characterization of the communications between Hardin and Stallings.
“So I think there was a lot of artistic liberty taken by the writer in that case, who made a presumption — which we’re not allowed to do — that anytime someone shares a text of a phone call, that they’re colluding, “Ogg said. “We don’t work with the plaintiffs’ lawyers, for the reason I said. We don’t want the cross-contamination, if you will, of a bias or motive being alleged against us in terms of trying to put our fingers on the scale in our system to help the other side. So it’s different when you’re dealing with a criminal defense lawyer, they’re representing a person we can’t talk to without them, who we need to notify about where to be or what to do.”
That’s a little confusing, frankly. If Watson isn’t going to be testifying before the grand jury, why does the prosecutor need to tell Watson’s lawyer “about where to be or what to do.” There are no administrative communications to be had until the suspect is formally charged.
Ogg also addressed the fact that Hardin was allowed to provide a “packet” for presentation to the grand jury.
“When they have a packet as was talked about in this case, it’s funny, that’s just a local custom, allowing defense lawyers to put together a packet,” Ogg said. “You won’t find any support for it in the law, you won’t find any protocol for it because it’s something that’s just been crafted through literally practice between our criminal defense bar and our prosecutors. And what we do is they put together what they want the grand jury to see or hear, and we’ll present it. And we present it because we want to know, too. What’s their side? What are they presenting? And remember, we cannot compel their client, or target, to testify.”
That’s also confusing. The prosecutor lets the defense lawyer put together whatever they want to put together, and then they submit it to the grand jury without even knowing what it is? No matter what it is? What if it contains an incorrect representation of the facts? What if, in this case, it was a video of Rusty Hardin on horseback declaring, as he has done publicly, that all of the women who have accused Watson of misconduct were lying? What if it was a video of Leah Graham proclaiming, as she has done publicly, that Tony Buzbee is a pied piper who has harvested a group of women with meritless claims for the purposes of advancing his social-media following and getting on TV?
Does Ogg really expect anyone to believe it’s normal practice for a defense lawyer to engage in the cake-and-eat-it exercise of not presenting the suspect for grand jury testimony, but also tendering a one-sided, self-serving presentation of the suspect’s point of view?
Ogg also took issue with the notion, from the Times article, that packets are used only by high-profile defendants who can finance such activities, calling it a “sensationalized” account of a common practice.
“Numbers wise, because many people are caught at the scene in the middle of the crime, defense lawyers strategically — or simply because they don’t do the work — will not submit packets in violent crimes or instant crimes,” Ogg said. “High profile has nothing to do with it. Packages are common. Although in terms of numbers, because many people are arrested for what I’m calling instant crime or something that happens where action’s taken immediately, many times they are not submitted. In cases like this, or cases where a crime is reported later, lawyers do it a lot.”
So packets are common, except when they aren’t. And profile of case doesn’t matter, except when it does. And some lawyers “don’t do the work” to put a packer together. Obviously, many of those lawyers don’t have clients who can pay the hourly rate for the creation of the packet and/or fund at hundreds of dollars per hour the constant pestering of the prosecutor, which as we’ve opined in this case was aimed at giving Stallings a glimpse of what her professional life would have become like if Watson had been indicted.
Although Ogg said plenty, she never was forced to confront the real reason (in my opinion) as to why Stallings did not secure any indictments. Stallings did not believe she could parlay those indictments into proof-beyond-a-reasonable-doubt convictions. So she let Hardin make his case (without subjecting his client to questioning), and she hoped the grand jury would choose to defer to the civil justice system.
Yes, even though the entire grand jury proceedings remain cloaked in medieval secrecy, it’s a safe bet that someone made the grand jury aware that these complainants had another path to potential justice, and that the grand jurors quite possibly decided simply to defer to the other main branch of the justice system. Making the outcome anything but an exoneration of Watson — no matter how much Hardin would like to treat it that way.