High Court Judge Blasts Ogg Chief, Calls Her “Not Credible”
[Photo Credit: The Site Gallery, taken during a fundraiser that Vivian King hosted for District Attorney Ogg shortly before Ogg won election and hired Ms. King to be her chief of staff, a senior leadership position commanding one of the highest salaries in the office]
Before Vivian King served as Chief of Staff for Kim Ogg at the Harris County District Attorney’s Office, she worked in private practice, including as a criminal defense lawyer.
Last week, the Texas Court of Criminal Appeals—the highest court in Texas for criminal law matters—found that Ms. King provided ineffective assistance of counsel and the quality of her work was “deficient” in a case where the client received a life sentence. As the Court explained:
“In the letter, appellate counsel told [her client], “I will file this petition for you.” Appellate counsel did not file [the petition], and the deadline to do so expired … ‘If appellate counsel’s action or inaction denies [the] defendant his opportunity to prepare and file [a] petition for discretionary review, [the] defendant has been denied his Sixth Amendment right to effective assistance of counsel.’ Appellate counsel was deficient as alleged.”
In other words, Ms. King failed to file a petition which would allow her client to appeal his conviction and life sentence after reassuring him, in writing, that she would. King's failure cost her client his right to appeal.
This is a stinging rebuke from a staunchly conservative court that is notoriously unfriendly to criminal defendants. But the tenor of the Court’s opinion is mild in comparison to a spicy separate opinion filed by judge Michelle Slaughter, who refers to Ms. King's “egregious behavior” and then describes her explanation for those actions as “not credible.”
Here are relevant snippets from Judge Slaughter’s opinion:
“Given the egregious behavior of counsel in this case [Vivian King] … I write separately to advise others on how to avoid needless, inefficient, wasteful, and unjust post-conviction litigation …”
“Counsel [Ms. King] represented to Applicant in unequivocal terms that she would file the [petition] on his behalf, but then failed to do so …. [O]nce counsel informed [her client] that she would assist him in that regard, she could not simply fail to carry out her commitment … [I]t is abundantly clear that counsel’s actions unfairly deprived [Ms. King’s client] of his ability to pursue a [petition] in this Court.”
“[I]t is not credible that this was simply a “typo.” First, [Ms. King’s] letter did not provide that [her client] had the right to file a pro se PDR, but it did inform him that he had the right to file a pro se writ of habeas corpus. Had this been merely a typo, counsel would have informed [her client] of his right to file pro se for both a PDR and a writ. Second, [the client] sent counsel [Ms. King] several letters inquiring about the PDR she promised to file on his behalf, thereby placing her on notice of the ‘typo.’ Despite this notice, counsel failed to correct the ‘typo’ until after [her client] filed the instant writ and filed a grievance with the State Bar.”
“Counsel’s credibility is also called into question by her failure to respond to Applicant’s letters inquiring about the PDR, as well as her more than 18-month delay in responding to [her client’s] habeas allegations.”
When discussing Ms. King’s behavior, Judge Slaughter implicitly accuses Vivian King of lying to the court by explicitly referencing the rule of professional responsibility related to “Candor Toward the Tribunal,” which requires that “a lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal[.]”
“In addition to significantly delaying resolution of [her client’s] legal claims, counsel’s error has also resulted in the habeas court and this Court having to expend resources to undo the effects of this very avoidable error. While the errors that occurred in this case are particularly egregious, and are hopefully rare among attorneys across the state, this case serves as yet another reminder for all appellate attorneys of the effect of failing to stay on top of their responsibilities.”
Given the importance of credibility to the work of a prosecutor, this opinion calls into question whether Ogg will allow Ms. King to remain in a high position within the District Attorney’s Office—or, indeed, remain employed at the office at all.
This is not the first controversy that Vivian King has sparked since joining the District Attorney’s Office. Last year, Houston Watch reported on an “email showing that Ogg’s Chief of Staff used county resources to aid a private organization facing a county audit.”
The Harris County District Attorney’s Office is responsible for prosecuting the kind of financial crimes that county audits tend to uncover. Yet, Ms. King used her government email to provide cheerleading and guidance to Crime Stoppers, an organization responding to a request from the Harris County auditor.
“You did a great job putting the audit book together,” Ms. King wrote to Stuart Hudson, an employee at Crime Stoppers of Houston, according to an email obtained by Houston Watch. “Please find my draft response letter. Feel free to make any changes you feel appropriate . After you all decide who will sign the letter, I suggest you hand deliver it to [County Auditor] Michael Post and have his receptionist sign for it. I feel like this complies with their request. Good Luck with this project.”
According to the Crime Stoppers website, Vivian King is a board member at the non-profit organization. Instead of stepping-down or at least exercising enough common sense to not get involved with an active county audit of the organization, Ms. King decided it was best to use her District Attorney’s Office email, fire off professional advice to a private organization at noon on a Friday on the taxpayer’s dime, and adorn her guidance to the non-profit with her official government signature block and insignia.