Monday, December 20, 2010

If you're living in a glass house...

Once again State District Judge Kevin Fine has found himself in a bit of hot water. You should remember that the local Republican Party make Judge Fine their whipping boy in the most recent election -- even though he wasn't running. Now he's being criticized by prosecutors for reducing the bond of a Harris County Sheriff's deputy accused of dealing in drugs. It seems that Judge Fine reduced Richard Nutt's bond from $200,000 to $20,000 without notifying the Harris County District Attorney's Office.

Article 17.091 of the Texas Code of Criminal Procedure states that

Before a judge or magistrate reduces the amount of bail set for a defendant charged with an offense listed in Section 3g, Article 42.12, or an offense described by Article 62.001(5), the judge or magistrate shall provide:
(1)  to the attorney representing the state, reasonable notice of the proposed bail reduction; and
(2)  on request of the attorney representing the state or the defendant or the defendant's counsel, an opportunity for a hearing concerning the proposed bail reduction.

Article 42.12, Section 3g(2) of the CCP refers to criminal acts alleged to have been committed by an accused in which he used or exhibited a deadly weapon - here Deputy Nutt's firearm.

There is nothing in the Harris County District Clerk's website to indicate that a written motion to reduce Deputy Nutt's bond was filed. It would appear that Judge Fine acted on his own.

The Harris County DA's Office is up in arms because they weren't consulted before the Judge issued his ruling. One of the rules of civil law I learned in law school was that the person making an allegation should have clean hands.

It is a well-known "secret" at 1201 Franklin that judges and prosecutors discuss cases without defense attorneys being present. "Judge, this is the case we discussed..." is not an unusual thing to hear from a prosecutor at the bench. I have sat in the middle of trial and listened to judges instruct prosecutors on how to get evidence admitted. I have been present at dockets in other counties in which the judge and prosecutors discussed where a case would fall on the trial docket without defense counsel present.

That doesn't make Judge Fine's decision correct, but, if you're living in a glass house...

2 comments:

Thomas Hobbes said...

Well, if the bond isn't going to be set according to Art. 17.15, and we're going to go with whatever the HCDAO slaps on the charge from the bail schedule, then why gripe when the judge lowers the bond amount. Arguably, under Art. 17.15(5), Fine also had a responsibility to consider the safety concerns of sending the defendant as an inmate into the jails where he worked as a deputy.

Houston DWI Attorney Paul B. Kennedy, said...

Thank you for your comment. A little judicial independence is a good thing.