Monday, November 16, 2009

Due process rights? What due process rights?

On November 10, 2009, the Harris County District Attorney's Office filed a motion seeking to recuse Judge Reagan Helm from hearing any domestic violence cases in his court. In its motion, the DA's office cites statements that Judge Helm allegedly made from the bench in five cases. The motion also cites statements Judge Helm made to male defendants who signed emergency protective orders (MOEP's).

Now I wasn't present in the courtroom for any of those cases (that I know of). I know many of the prosecutors who signed affidavits stating that their recitation of Judge Helm's remarks were true and accurate and I don't have any doubts about their truthfulness under oath.

The district attorney is alleging that Judge Helm has a personal bias when it comes to domestic violence. The motion alleges that this bias prevents Judge Helm from being impartial when presiding over such a case.

However, the DA's office takes its argument a little too far when it claims that Judge Helm's comments express an "extrajudicial belief to the prejudice of the State and the victims of family violence.

Pardon me if I'm mistaken, but a defendant in a criminal proceeding is innocent unless proven guilty beyond a reasonable doubt. Unless the jury decides that a crime has been committed, there is no victim. Prior to trial, there is an allegation that a criminal act occurred. There is an alleged victim - the complaining witness. But there is no crime.

Furthermore, in any criminal case filed, there are two parties (unless multiple defendants are being charged and tried together) -- the prosecution and the person accused. The alleged victim has no standing to complain to the court. If the alleged victim wants to be a party to a lawsuit, the civil courthouse and the family law center and both less than a block from the criminal courthouse.

There is one more thing that's a bit troubling about the DA's motion to recuse. In Texas any motion filed by one party must be served on all other parties to the litigation in a timely manner. Every motion filed in a criminal, civil or family case has a certificate of service attached in which the moving party "certifies" that he or she has served a copy of the motion on all other parties or attorneys.

The DA's motion was filed on November 10, 2009. Judge Helm denied the requested relief on November 11, 2009. I was notified by phone on November 12, 2009 that the motion had been filed. I received a copy of the motion by fax on November 13, 2009. I received a copy of the motion via certified mail this morning (November 16, 2009) - the envelope was postmarked November 13, 2009.

Why does this matter? According to Joshua Reiss of the Harris County District Attorney's Office, a "true and correct copy" of the motion was served on my office by certified mail on November 10, 2009.

I wasn't even notified by the DA's office about their motion until after the judge heard the motion. That's not timely notification. That's a violation of my client's due process rights. He had the right to be notified of the filing of the motion and to be present at the time the motion was heard. Over at the civil courthouse an attorney is required to notify all other counsel of any hearing date at least three days in advance (some hearings require more notice). If the District Attorney is going to cite the Texas Rules of Civil Procedure in its motion to recuse a judge in a criminal case, the least Ms. Lykos' crew can do is to follow the rules on notice.

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