On the morning of March 19, courthouse staff abruptly evacuated the eighth floor of the Harris County Criminal Justice Center in downtown Houston after word spread that a misdemeanor prosecutor working on that floor had been exposed to the new coronavirus. The Harris County district attorney’s office soon sent out an email to its more than three hundred prosecutors with the alarming subject line “Do Not Go To Court: Health and Safety Alert.”
District attorney Kim Ogg, who ran in 2016 as a “progressive prosecutor” and became the first Democrat elected to the office in nearly forty years, has drawn criticism from Houston progressive groups for being slow to enact reforms. Before the evacuation, she had also been under fire for continuing to send her prosecutors into court. Harris County had already suspended many low-level proceedings, and some defense attorneys were appearing by video call. The courthouse scare evidently persuaded Ogg to finally change course and begin allowing her prosecutors to work remotely.
But Ogg’s efforts to keep her staff healthy soon attracted criticism of its own. The same day as the courthouse evacuation, Tanisha Manning, a division chief in the district attorney’s trial bureau, emailed a color-coded spreadsheet to her subordinates titled “Employees Seriously Ill or Who Have Passed Away Due to COVID-19.” The document was apparently intended to help Manning keep track of office absences, from vacations to COVID-19 illnesses and deaths.
The “death chart,” as it came to be known, was just a template—no names were listed—but it prompted gallows humor among the prosecutors who received it. Were they expected to report their own deaths to the district attorney? One of them took a photo of the spreadsheet with a personal phone and texted it to six fellow prosecutors, some of whom were in different divisions and hadn’t yet seen the document. The photo ended up in the possession of Houston defense attorney Ed McClees, a former prosecutor in the DA’s office who made his name prosecuting organized crime and fraud before moving to criminal defense. McClees had become one of Ogg’s most vocal critics on social media but maintains good relationships with many prosecutors in the office. He thought the spreadsheet was amusing and posted it on his personal Facebook page.
McClees told Texas Monthly the person who shared the photo wasn’t trying to embarrass the district attorney’s office. “I talk to plenty of prosecutors who aren’t happy with their boss—this was not one of those people. This was just more of a ‘WTF’ kind of thing.”
Whatever the reason, McClees’s Facebook post set off a furious, three-week internal investigation by Ogg and her top lieutenants—in the midst of a pandemic that has turned the criminal justice world on its head—to find out who leaked the spreadsheet. DA investigators, led on at least one occasion by Ogg herself, spent weeks interrogating career prosecutors about the leak. Seven prosecutors were reassigned and received letters of reprimand for “insubordination,” according to sources familiar with the investigation. When the actual leaker came forward to confess a week and a half into the investigation, Ogg’s office fired her for violating policies in the Harris County District Attorney Operations Manual.
The following account of that investigation is based on interviews with two prosecutors in the Harris County DA’s office who have firsthand knowledge of these events. They have been left anonymous, at their request, to protect them from retribution. Prosecutor One was one of the attorneys who received the initial text message, did not share it with McClees, and was subsequently put under investigation by Ogg. Prosecutor Two works in the district attorney’s office and was able to confirm key elements of Prosecutor One’s account. Their accounts are consistent with a lengthy April 17 blog post by Houston defense attorney Murray Newman, who first broke news of the internal investigation.
Reached for comment, Dane Schiller, spokesman for the Harris County district attorney’s office, wrote, “The narrative you shared from partisan sources is incomplete, misleading, and in some instances, outright false; we have no further comment.”
McClees posted a photo of the spreadsheet on Facebook on March 20, with the sarcastic remark that “it seems that the Harris County District Attorney’s Office has a positive outlook on the virus.” The document soon attracted further ridicule. “I take back my previous comments about them being unprepared,” one commenter wrote. “They have a spreadsheet to count their dead employees!” According to both prosecutors, Manning, the division chief who emailed the document, was embarrassed by the comments and set out to find the source of the leak.
She didn’t have to wait long—a prosecutor came forward that day and admitted to taking the original photo, but denied sending it to anyone outside of the office.
The following week, the hunt for the leaker began in earnest. DA investigators collected work computers and phones from the seven prosecutors under suspicion. The prosecutors refused investigators’ requests to turn over their personal phones, citing privacy concerns, according to Prosecutor One. A week later, Prosecutor One received an email again requesting the prosecutor’s personal phone “at the direction of DA Ogg,” attached to the threat that noncompliance would result in a memo being placed in the prosecutor’s personnel file.
Around this time, McClees learned about the internal investigation into his source, and decided to delete the Facebook post. On March 31 he sent a letter to Manning stating that none of the seven prosecutors she was investigating had been his source and requesting that a copy of the letter be forwarded to the DA officials performing the investigation.
“I never had the goal of putting anyone in an embarrassing situation—quite the opposite,” McClees recently told Texas Monthly. “I certainly didn’t think the office would conduct a Stalin-style purge to try to find out who took a picture and who or who did not send what ultimately is a public document and is subject to public disclosure anyway.”
Despite McClees’s letter, the investigation proceeded apace. Starting the evening of March 31, Ogg and a group of senior leaders interrogated the seven prosecutors under investigation over Zoom or in person, according to Texas Monthly’s two sources. In one meeting, the investigators threatened to fire or officially reprimand Prosecutor One if the personal phone wasn’t turned over; once again, Prosecutor One refused.
The next morning, the real leaker unexpectedly stepped forward to confess—and it wasn’t one of the seven under investigation. Assistant district attorney Janie Korah, a felony prosecutor who had worked at the Harris County district attorney’s office since 2016, admitted she was the one who sent the photo to McClees, according to multiple sources inside and outside the office. (Korah declined to comment for this story.) Prosecutor One now breathed a sigh of relief, thinking Ogg, having discovered the source of the leak, perhaps would drop the matter.
But on April 13, a DA official delivered two memos to the seven prosecutors under investigation, according to Texas Monthly’s two inside sources. The first memo contained the results of the internal investigation, along with four pages of exhibits including screenshots of the group text in which the photo had originally circulated. It explained that Korah—whose fate would be determined later that week—had violated Section 2.13 of the Harris County District Attorney Operations Manual, which reads, in part, “since any information shared online can reflect on this office, such postings should be personal and should not discuss any official business of the office or make reference to the office or an activity within the office.” The memo also reprimanded the prosecutors on the group chats: “The failure by all of the involved office prosecutors to allow examination of their personal phones frustrated the investigation and made it impossible to validate any of the prosecutors’ statements. All of the ADAs involved were insubordinate.”
The second memo laid out what discipline would be imposed. Prosecutor One was informed that “following an internal investigation of unauthorized release of information (government document) during the Covid-19 emergency […] this memo and attached investigative report will be placed in your employee personnel file. [Prosecutor One] will be reassigned to a non-investigative division.” At least one of the prosecutors filed a formal rebuttal to the report registering indignation at Ogg’s investigative tactics.
Later that week, Korah’s employment was terminated.
McClees remains devastated by Korah’s firing. “I feel horrible,” he said. “I think it took tremendous courage and shows impeccable character to stand up. When she heard about what was happening, she said, ‘No, that wasn’t them. It was me.’”
Korah enjoyed a sterling reputation in the Houston criminal justice world, he said. “She is a very well liked prosecutor by both other prosecutors and members of the defense bar. You know, contrary to the public belief that we’re always at each other’s throats, that’s really not the case. […] She was always very open-minded and would listen.”
Firing a public employee for leaking an internal document may be a First Amendment violation, according to Aaron Holt, a Houston attorney certified in labor and employment law by the Texas Board of Legal Specialization. Though he would not comment on Korah’s case specifically, Holt noted that the Supreme Court has ruled that public employees do not relinquish their constitutional right to comment on matters of public interest, although that right must be balanced against the employer’s interest in minimizing disruption to public services.
The relevant question, according to Holt, is whether the employee leaked the document as “an expression of a personal grievance,” which would not be protected, or to call attention to a “matter of public concern.” If courts considered Ogg’s response to COVID-19 a public concern, they might view leaking the document as an exercise of free speech rights.
After being fired, Korah found a new job as an assistant district attorney in the felony division of the Galveston County district attorney’s office.
Carvana Cloud, a former head of the special victims bureau who left the DA’s office in October to run against Ogg for the Democratic DA nomination—a race Ogg won handily—said that asking prosecutors to hand over their personal phones crossed a line. Although no longer in the office, she was aware of the investigation. “If there is evidence of a crime, or something of that nature, there’s a procedure that can take place,” she said. “Warrants can be written up, but there has to be probable cause.” Cloud also questioned the focus on internal investigations in the middle of a pandemic.
Ogg, who is known to place a premium on loyalty, may have seen the leak as a personal betrayal or breach of discipline necessitating response.
Tom Berg, Ogg’s handpicked first assistant district attorney who resigned under pressure last year, said, “Once Kim personalizes a comment or a circumstance as an insult, it becomes an act of disloyalty to her.” Berg, who was also familiar with the internal investigation, added, “So in the midst of this horrible work environment, compounded by the dread of COVID-19, she summarily ended the valued career of a good civil servant.”