Without all of the clothes rending and teeth gnashing about how David Temple murdered his wife (I am familiar with the evidence, and I doubt that he did), I agree with Murray Newman (as often I do) that Kim Ogg should ask that an attorney pro tem be appointed to decide how to proceed in the David Temple case,1 now that the Court of Criminal Appeals has reversed Temple’s conviction.
Temple wants to be exonerated; I sympathize, but I’m not sure how he gets from here — with charges pending — to there. If the State dismisses his case, he has not been exonerated. If he goes to trial and wins, he has not been exonerated (because “not proven beyond a reasonable doubt” is not “some other dude did it”). If he isn’t convicted again he can’t file another 11.07 writ.
Maybe Stan Schneider has some vehicle in mind for compelling Judge Johnson to have a hearing on actual innocence and compel the State to participate, but an 11.07 writ is the only way that I know of for his client to be found actually innocent (his actual-innocence claim was rejected by the Texas Court of Criminal Appeals, which doesn’t mean that he isn’t actually innocent just as an acquittal doesn’t mean that he is). If the State moves to dismiss the case, Temple can object, but Judge Johnson can dismiss the case over his objection.
I doubt that Mr. Temple would be willing to be convicted just to have another shot at total exoneration, and I doubt that he would choose a trial over a dismissal, but the decision whether he should be retried should be made by a prosecutor with no dog in the fight — without the ego stake that the Holmes / Rosenthal / Anderson DA’s Office had, and without the appearance of a conflict of interest that the Ogg DA’s Office has.
Devon Anderson had serious problems with conflicts of interest. Several times she should have asked for the appointment of prosecutors pro tem because of the appearance of impropriety.
I suppose Kim Ogg is not immune from the implicit corruption that she, I, and all of us have been swimming in for our entire careers. But still, I expected better.
Murray suggests the AG’s Office; this is a great idea if you want the job done incompetently. ↩