Jocelyn Nungaray case: Judge silences former District Attorney Kim Ogg after FOX 26 interview

HOUSTON - The Harris County District Attorney’s Office is requesting changes to the gag order in the Jocelyn Nungaray case to include "former attorneys" after former district attorney Kim Ogg spoke to FOX 26 in an exclusive interview about the case last week. On Monday, Judge Josh Hill didn't sign the order saying it needs further review, but did make a verbal order gagging all current and former prosecutors from speaking on the case pubically, including Ogg. 

HCDAO requests updated gag order

What we know:

On Monday, the Harris County District Attorney’s Office filed a motion for the court to revise its order regarding extrajudicial statements.

In the motion, the DA’s office said the existing order "applies to ‘all attorneys…involved in the case" but does not make clear that it also applies in full force to all former attorneys involved in the case." They are asking for an updated order with that specification.

What prompted this?

The backstory:

Last week, in an exclusive interview with FOX 26, Ogg revealed a key piece of evidence that helped secure the death penalty option in the case. She revealed that one of the suspects charged with capital murder in the death of 12-year-old Jocelyn Nungaray, Franklin Pena, had been accused in a prior sexual assault in Costa Rica.

Ogg has known this information since her office sought the death penalty, and FOX 26 asked, why come forward with it now?

"Because I am very concerned about the decisions my successor district attorney has been making," she said, referencing multiple cases that have recently been dismissed. 

"I think it's important for the public to get the final say. Do they deserve death for the rape and murder of Jocelyn? Or should they spend their life in the penitentiary? What I don't want is some backdoor deal done in the quiet of the night and a long time after people have forgotten the horror of this case. I just want people to remember Jocelyn and I want them to hear and make a decision about the evidence," said Ogg.

What they're saying:

The motion aims to amend a former gag order that has been in place in the case since September. 

The order would restrict public comment from "all current and former members of the prosecution team and defense team" as well as witnesses who have "previously given statements to law enforcement personnel". Josh Reiss, general council for the Harris County District Attorney's Office, expressed in court that this could include members of the Nungaray family who have given investigative statements. 

Judge Hill said in court the order will need further review to avoid violating the first amendment rights of those potential family members. 

In the order, the district attorney’s office claimed that Ogg revealed "a partial confidential allegation" against the defendant. They claim that her "motivation for her decision to reveal confidential investigative information was – by her account – politically motivated…."

Reiss called Ogg's statements in the interview "an abhorrent violation of rules". 

"Who would have thought that the district attorney - the former district attorney - of Harris County would take it upon themselves to go on television and just leak confidential information because she believes that she disagrees with the current district attorney's decision-making, and she just believes that the public had a right to know," he said in court Monday. 

Lisa Andrews, Pena's defense attorney, echoed the state's message, asking Judge Hill to find Ogg in contempt of court, accusing her of violating the previous gag order. 

Both the state and Pena's defense stated they are filing grievances with the Texas State Bar. 

"In my 27 years as a practicing attorney, I've never seen a former DA or current DA go to the media and release confidential information in the scope of their employment," she said. 

Chris Tritico, Senior Legal Analyst for FOX 26, says this is the first time in his career he's seen a former DA pull move like this as well, "She has done significant damage to their ability to defend their cases," he said. 

As for the contempt request, Tritico says it's not clear if Ogg falls into the scope of the original gag order. 

"I don't know if it will be a contempt situation, because she wasn't specifically named as a party to the gag order before today, so I don't know if the judge can specifically hold her in contempt. But in 40 years of practicing law, I've never seen a former DA do something like this, it's very unusual," he said. 

The other side:

FOX 26 has reached out to Kim Ogg who spoke with our Abigail Dye over the phone about the response to her interview and what this means for moving forward. At this time, she does not have an official public comment. 

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