Wednesday, October 10, 2012

Carpet bagging judges

Last week I tried a dope case in Harris County. The regular judge was out for the week so we had a visiting judge. A judge who was terminated by the voters of Harris County back in 2008. A judge who wasn't accountable to the public.

Having said that, I thought he was very fair during voir dire. He never once tried to rehabilitate jurors for the state - a common pastime for judges in this part of the state. He gave us as much time as we needed and even had a damn good idea of who each of us wanted to challenge for cause.

The fun, however, began the next day.

We were dealing with a police officer who lied to the officer who wrote the offense report. He also took the stand and lied about what he saw on the evening in question. When I attempted to ask the lead officer if his job required him to lie to suspects, the judge shut me down. When we approached later and I told him (just as I had before the trial began) that we were dealing with police officers who were lying he just rolled his eyes and told me to give it a break.

After evidence was closed we discussed the jury charge. I pointed out that the charge should not read that it is the jury's duty to determine the guilt or innocence of my client. I pointed out that my client was presumed innocent, that the charge as worded implied we had some burden of proof and that the real question for the jury was whether or not the state had proven their case beyond all reasonable doubt.

Of course my objection  was overruled because, as the (unelected) judge pointed out, this was the way the charges had been written in Harris County for years. I briefly thought about pointing out that slavery and segregation had existed for years but that didn't make them right - but I realized I would be wasting my time.

After our closing arguments were made we waited for the jury. The first note came out after about 30-40 minutes. They wanted to see the photographs of my client's truck. I knew we were good at that point because there were jurors who didn't believe the officer was being truthful. After about two-and-a-half hours the jury set a note stating they were deadlocked at 11-1 and asking what they should do. The (unelected) judge told them to keep deliberating. I told my client we were way ahead.

We went back out into the hallway to relax. While I was out there the prosecutor came out and asked to speak to me. She told me that the (unelected) judge wanted to know if my client would accept a plea. I told her that if he were going to accept a plea he would have done it before now. I also told her there was no plea they could offer that we would accept.

A few minutes later, as I told my client, the jury came back with a not guilty verdict.

But one thing still bugged me - and it bugs me to this day. Why was the (unelected) judge asking the prosecutor to try to make a deal with my client? What business was it of his how the case turned out? His role was supposed to be that of a neutral arbiter - not an advocate of the state. The (unelected) judge overstepped his boundaries and became involved with the prosecution of the case. That is an ethical violation. That is wrong.

I would like to say that the public terminated his employment because they were sick and tired of such shenanigans on the bench. But that had nothing to do with it. With the exception of attorneys who try cases in front of judges, no one has the slightest idea what they do, how they do it and whether or not they do it worth a shit. The only consideration in a judicial race is whether the candidate has an R or a D after his or her name.

In the meantime, those who were tossed out of office by the public continue to preside over trials because their buddies and former colleagues keep using them as visiting judges. It's a process that needs to stop. We elect our judges (no matter how messy the process) because our forebears were wary of the power of the state and figured that the best way to control the arms of the government was to make as many people as possible accountable to the voters.

Fortunately in my client's case, it all worked out the way it should have. Others haven't been so lucky.

1 comment:

Anonymous said...

Obviously the jury believed the officer was lying. Is this officer now going to facing charges for falsifying an Offense Report? Will the Harris County DAO place this officer on their Brady list (do they even have one or is that list reserved for truthful witnesses like Culbertson and Wong) for his infraction or will they keep trotting him out there to lie in more cases. I guess I am being naive to even ask.