Monday, December 31, 2012

(In)justice of the peace

We would like to think our judges have a least a little knowledge of the law. We would assume a judge would also be an attorney. It would make sense, wouldn't it?

But, in Texas you can be a judge even if you aren't a lawyer. Justices of the Peace preside over a docket consisting of traffic code violations and other Class C misdemeanors as well as small claims cases and other civil cases if the amount in dispute is under $10,000. They also perform weddings and, in some counties, act as coroner (without the need for any formal medical training).

Michael McCleary is a justice of the peace in Brazos County. Mr. McCleary is not a judge. And, should you ever set foot in his court, that fact will be readily apparent.

I recently represented a truck driver who got a speeding ticket in Brazos County a few years ago. Prior to trial I faxed a subpoena to the court for service on the state trooper who wrote the ticket. I received a response back that the county attorney said I needed to serve the subpoena myself or issue a public information request.

Now this concerned me for two reasons. First, why were the judge and the county attorney discussing what to do with the subpoena request I had filed with the court? Does the phrase ex parte communication mean nothing in Brazos County? Second, my client was charged with a criminal offense and has a right to compulsory service.

So I sent a letter to Mr. McCleary informing him that the court's refusal to serve my subpoena violated my client's due process rights. The response I received made it clear that no one in that court had any clue what the words due process meant either.

When I pressed the matter I was informed that the court would serve my subpoena - but only if I paid a $75 fee for each item requested (for a total of $450). Once again I fired off a response that the court doesn't get to charge a defendant in a criminal case to serve a subpoena. And, once again, the response I got back indicated that a lack of intelligence won't hold anyone back in Brazos County.

And so, as a Christmas present, after my client was convicted in a trial that was rigged from the get-go, I handed Mr. McCleary a copy of the complaint I had filed the previous day with the State Commission on Judicial Conduct.

I would like to think that something might happen as a result - but I know too much to expect anything to come of it.

But the problems go much deeper than one judge who wouldn't recognize the Bill of Rights, or Code of Criminal Procedure, if it landed in his lap. The problem is allowing non-lawyers to preside over criminal cases in which a citizen's livelihood could be at stake. No, a traffic citation is nowhere near as serious as a murder case, but the consequences of a conviction can be severe, nonetheless. When a conviction for speeding can cause a driver to lose his job, I don't think it's too much to ask that a qualified judge be sitting on the bench.

And when a justice of the peace is either ignorant of the law or just chooses to ignore it, the citizen accused of speeding isn't being afforded his constitutional rights. Sure, it's not a "court of record" so any adverse verdict can be appealed to the county court for a new trial - but then we're talking about even more money being shelled out to get something that approaches "justice." That remedy is no excuse for continuing the dog-and-pony show you can see any day in any rural county across this state.

If you want a non-lawyer serving as justice of the peace to perform weddings and to agree with the police that someone is actually dead - that's fine. But, please, don't allow him to preside over a criminal trial.


Murray Newman said...

This surprises you?

Anonymous said...

What is worse is that these judges, to put it bluntly, hold the lowest rung on the judicial totum pole and yet, they are often the worst acting and most pompous, ruling their courts and the people who work in them and appear before them in the most inhumane way. That may be why so many JPs find themselves brought before judicial ethics committees!