More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.

Rubbernecking

Piling on? Maybe.

I'd like to think of it as more slowing down to see the aftermath of the wreck on the other side of the freeway, though.

Of course I must be talking about Christopher Dupuy, the former county court judge in Galveston County.

His latest brush with the law is both the funniest, and most pathetic. It seems that Mr. Dupuy got upset when two lady friends decided that they no longer wanted to be friends with one of the most unqualified people to ever sit on the bench.

Instead of moving on with his life, Mr. Dupuy allegedly posted fake ads on a website stating that his ex-girlfriends would perform sex in exchange for money.

Mr. Dupuy does, however, remain the poster child for straight-ticket voting Republicans in Galveston County. With the exception of a few devoted wingnuts, Mr. Dupuy would never have sat on the bench had the carpetbaggers in the northern end of the county not voted for anyone (and anything) with an "R" after it.

Oh what a relief it is (finally)

Now I don't usually take to these pages with a self-congratulatory blog post after getting a positive result. That's self-serving and doesn't serve the purpose for which I started up this blog almost six years ago.

But yesterday I got to do something pretty damn cool. I got to call up a client and tell him that his felony dope conviction was overturned by the Court of Criminal Appeals. After almost two years and two previous denials of relief, the CCA granted our writ on the third attempt.

Our work to reverse the conviction came about when it was revealed that a DPS lab analyst, Jonathan Salvador, had been caught faking test results in drug cases. At first the writs were being granted and convictions were being reversed - until someone in Austin realized just how many cases were affected. We certainly couldn't have a bunch of judges in Austin reversing thousands of felony drug convictions just because the lab analyst was caught cheating now, could we?

The Court tried to make it harder to obtain relief by making applicants show a pattern of misbehavior on the part of Mr. Salvador. That hurdle was overcome when it was discovered that there were other tests that appeared to have been faked over the years.

Credit must also go to Galveston County District Attorney Jack Roady who made a decision that his office would be more interested in seeing that justice was done than in preserving convictions. Assistant District Attorney Virginia Jones who is a fellow marathoner (but a whole lot faster than me) and works in the appellate division of the office also deserves credit for the integrity she displayed during the entire episode.

And, while I'm doling out huzzahs, a final one goes out to the Honorable Bret Griffin, the Presiding Judge in the 212th Judicial District Court in Galveston County. When we sat back in his chambers a few months ago after our second request was denied by the CCA, he told us that he thought the Court's decision in the Coty case was wrong.

In the end my client is happy now that this five-year long roller coaster ride is over. And that's one of the reasons we do what we do.

And so it ends

After two-and-a-half acrimonious years on the second floor of the Galveston County Courthouse, the tenure of Christopher Dupuy on the bench in County Court 3 is finally over.

On Thursday, Mr. Dupuy entered into a plea bargain with the special prosecutor that will see him placed on deferred adjudication for two misdemeanor charges and resign from the bench.

Mr. Dupuy took the bench when the Republicans swept the 2010 general election in Galveston County despite the fact his license to practice law was suspended by the State Bar of Texas for unethical conduct as an attorney. His incompetence continued when he took the bench.

Mr. Dupuy lacked the necessary temperament to sit on the bench - he took any challenge to his rulings to be a personal challenge. He ran for the bench against the judge who was presiding over his divorce case and he used the tools of his office to assist his girlfriend while she was involved in litigation.

Now that Mr. Dupuy is off the bench, the cockroaches will begin scurrying across the kitchen floor. In the upcoming weeks and months lawyers will step up to announce they are running for the bench in County Court 3. But where have they been over the past two-and-a-half years? Not one of them had the courage to stand up and challenge Mr. Dupuy while he was on the bench. They will now pick over the bones.

Lari Elaine Laird was one of the few attorneys in Galveston County who had the courage to stand up and speak. For her efforts she found herself fighting contempt charges. It was her fight, however, that led to the slew of criminal charges being filed against Mr. Dupuy which led, in turn, to his resignation.

Still more trouble for Galveston judge

Disgraced Galveston County jurist Christoper Dupuy truly is the gift that keeps on giving.

Facing contempt charges for violating the visiting judge Robert Kern's gag order, Mr. Dupuy won a reprieve from the 1st Court of Appeals the day before the hearing was set to commence.

His victory, however, was short-lived as Mr. Dupuy was indicted and jailed on two counts of aggravated perjury. For those keeping score at home, Mr. Dupuy is now facing four felony and seven misdemeanor charges.

Now that blood is in the water, candidates for the Republican nomination for County Court No. 3 are popping up like fire ant mounds after a hard rain. But where were these fine lawyers when Mr. Dupuy was creating his circus on the second floor of the courthouse? Did any of them speak up about what was happening? Or did they all shuffle in and out of the courtroom like dutiful little servants not willing to stir the pot?

Yet another indictment for disgraced jurist

Disgraced Galveston County Judge Christopher Dupuy is back in the news once again as he was indicted and arrested (again) for violating the statute banning judges practicing law.

Apparently Mr. Dupuy, after being suspended from the bench without pay as the result of his previous indictments, decided it was a good idea to advise his girlfriend to ignore a court order in her child custody case that he thought the order was incorrect.

But, oops, since he is still considered a judge, he is barred from the private practice of law (though there are a handful of exceptions to that prohibition). Of course there is also the question of why anyone would ask Mr. Dupuy for legal advice (never forget that he was in trouble with the State Bar while campaigning for office).

  Dupy Indictment

Update: Pinch hitting in County Court 3...

Damn, that fall from grace can be awfully fast sometimes. Two days after being indicted on two felony charges and six misdemeanor charges and one day after being arrested, disgraced Galveston County Court at Law Judge Christopher Dupuy was suspended from the bench without pay by the State Commission on Judicial Conduct late Thursday afternoon.

Mr. Dupuy will remain off the bench pending the resolution of the criminal charges against him and the civil suit filed to remove him. Whatever the outcome, however, his short-lived career as a judge, and possibly as an attorney, is over.

For anyone who has had the misfortune of practicing in his court, the latest developments can't be much of a surprise (only that it took this long). He rode into office on the tails of straight-ticket voting by suburban Republican voters in Galveston County. His behavior on the bench has been erratic from the start. His lack of knowledge of the law was apparent from his first days on the bench.

For now, however, the stain on the second floor of the courthouse has been removed.

Here is a copy of the order suspending Mr. Dupuy:

  Suspension Order - Dupuy

Judge on a hot tin roof

Word from courthouse wags down on the Island indicate that embattled Galveston County Court at Law Judge Christopher Dupuy's days behind the bench may be coming to an end. According to sources at the courthouse, Mr. Dupuy was indicted this morning on two felony counts of retaliation, four misdemeanor counts of abuse of official office and two misdemeanor counts of official oppression .

Also on Wednesday a petition seeking the removal of Mr. Dupuy as the presiding judge of County Court at Law No. 3 was filed on behalf of the State of Texas by Galveston County attorney Greg Hughes (Click here for the petition and attached exhibits). A hearing for Mr. Dupuy to show cause why he shouldn't be removed from office will be held on June 7, 2013 in the 10th District Court at 10:30 a.m.

According to the Houston Chronicle:

The petition for removal accuses County Court-at-Law Judge Christopher Dupuy of failing to obey an order from a state appeals court, abusing his authority by retaliating against attorneys and threatening the district clerk while attempting to interfere in Dupuy's own divorce case. 

The lawsuit accuses Dupuy of incompetence and official oppression and asks that he be removed from office while the case is pending. 

"He has ruined dozens of lives over the last two years with ridicules, horrible rulings he has made," said Galveston County attorney Greg Hughes, who filed the petition for removal at 10 a.m. with state District Judge Kerry Neves.

In response to Mr. Hughes' petition, Galveston County District Attorney Jack Roady has filed a motion to recuse his office from prosecuting the removal on behalf of the State of Texas due to a conflict of interest. The Texas Attorney General's Office has been appointed to represent the state in the removal action.

The noose around Mr. Dupuy's neck has tightened and I do believe that it's just a matter of time until his days on the bench are over. The voters in Galveston County who pulled the straight ticket lever for the Republicans back in 2010 should be ashamed of themselves for putting this man on the bench.

  Indictments of Judge Christopher Dupuy

Laissez les bon temps rouler - Galveston style

And the fun never ends down on the island. Who needs Mardi Gras when there's Judge Christopher Dupuy?

Just when I was wondering if any of his fellow judges would stand up and say something about his erratic behavior, along comes State District Judge Susan Criss. According to an e-mail Judge Criss sent to county officials this week, there are some very serious concerns in the county judiciary about the stability of Judge Dupuy.

Here is the text of Judge Criss' e-mail...

I have been informed of the following: 

A county court judge requested armed security for the afternoon of judges's meeting in January from the Galveston County Sheriff's Office due to concerns that County Court Judge Christopher Dupuy would act in a manner that threatened the safety of the judiciary. 

County employees, family members of county employees, litigants and attorneys are expressing concern to those in authority, such as judges, the Sheriff, the District Attorney and to me that they are afraid Judge Dupuy will become violent and hurt or kill someone. Those expressing concerns include many I have known for decades who never expressed such concerns before recently. 

Judge Dupuy has published remarks on facebook and made statements to his children about carrying and acquiring firearms including a rifle and handgun and concealing them in a zipped pocket in his jacket. I understand the District Attorney has a taped recording of Judge Dupuy's children discussing this. 

Courthouse employees and attorneys are discussing numerous accounts of erratic behavior and mood swings. Media accounts are describing his behavior as bizarre.
I have worked for this county since 1986. Prior to that I came to the courthouse with my dad before I was even in elementary school when he and my aunts and cousins worked here. Never in my almost 52 years did I ever expect to have to write an email to elected officials asking how they intend to protect the public, the other elected officials and courthouse employees from a member of the judiciary. 

Amazingly enough this is not even the first time I have had to approach those in authority to ask for protection for the Galveston County employees and the public and his own family from an elected official. That former elected official was ultimately prosecuted, was incarcerated and then charged again with violent crimes. And in the end those in charge stepped up and did what was necessary to protect everyone from danger.
I never expected that circumstance to occur again my lifetime , much less only months later. But here we are. Everyone of us was entrusted by the citizens to do what is necessary to protect the people who come into this courthouse. 

So now I ask those of you elected to govern what is being done to protect everyone? 

Judge Susan Criss

While there is no mention of the county judge who requested armed security at the monthly judges' meeting, there are only two other misdemeanor judges - John Grady and Barbara Roberts. It's a pretty good bet that it was Judge Roberts who made the request.

Judge Dupuy blows off the letter as "politics," but that doesn't explain why a fellow judge felt the need to ask for security at a judge's meeting in the courthouse.

Attorney General to investigate Galveston judge

Oh, how much hotter the seat behind the bench in Galveston County Court at Law No. 3 must be today. Now, instead of being investigated by the Galveston County District Attorney, Christopher Dupuy finds himself in the crosshairs of the Attorney General's Office.

Galveston County DA Jack Roady has handed off the ball to Greg Abbott's office in order to avoid having Judge Dupuy recused in every criminal case on his docket.  Mr. Roady also confirmed that there have been multiple complaints about Judge Dupuy filed with his office.

Mr. Dupuy claims the complaints are politically motivated, but then no one has ever accused him of being able to think clearly. Questions about his fitness to serve on the bench have been raised since he won the election in November 2010.

If voters in Galveston County are paying attention to the antics on 59th Street, this should serve as a warning to the dangers of blindly pulling the straight ticket lever in the voting booth. Those who went to the polls in 2010 obviously weren't aware of Mr. Dupuy's past - I find it hard to believe that many folks would vote for an attorney on probation from the State Bar for judge.

The clock is ticking on Mr. Dupuy's time on the bench. The only question now is whether or not he will be allowed to serve out his term.

The noose tightens

On Wednesday I mentioned that Christopher Dupuy, the judge in Galveston County Court at Law No. 3 was under criminal investigation for using county equipment to assist his paramour in a legal dispute. Last night the Houston Chronicle ran this story announcing that the Galveston County District Attorney's Office acknowledged the investigation.

Dupuy has denied the allegations and claims that Galveston attorney Greg Enos filed the complaint with the DA's office for political purposes.

But the truth came out in a hearing the other day when Mr. Dupuy's girlfriend admitted under oath that she was engaged to the judge and that he provided her with legal advice back in December. Mr. Enos turned over a copy of the fax to the DA's office back in December.

The time has come for Mr. Dupuy to step down from the bench. He has made a mockery of justice in Galveston County. He has embarrassed himself. He is a menace to justice.

Whether his colleagues on the bench have what it takes to tell him it's time for him to go is another question. The longer they allow him to roam unchecked, the worse the situation becomes.

With the sworn testimony of his fiancee nailing him for using county equipment to provide her with legal advice (an ethical violation, by the way), the path to his departure may be laid out. Facing a choice between stepping down and fighting criminal charges would seem to be an easy and logical decision to make.

But, then again, we're talking about Christopher Dupuy.

Dupuy is at it again on the island

It seems that Judge Dupuy has been tilting at windmills once again down on the island. First he went after associate judge Suzanne Schwab-Radcliffe, alleging that there was an inherent conflict of interest in her sitting part-time as the associate judge in the 306th Judicial District Court and practicing family law in the county courts at law.

While many attorneys down on the island were beside themselves when Judge Dupuy went after her - for once he got it right. My dad use to tell me that even blind pigs find an acorn every once in a while. The State Commission on Judicial Ethics agreed with Judge Dupuy and issued an opinion that it wasn't proper for Ms. Radcliffe to continue to sit as a judge in Galveston County while litigating divorce cases in the county.

I know several traffic ticket attorneys who sit as judges both in Houston and some of the surrounding municipalities. Their contracts with those courts state that while they can continue to defend folks who are cited for traffic violations (and other Class C misdemeanors), they cannot take any cases in the jurisdiction in which they sit. And that makes sense.

Of course that wasn't Judge Dupuy's motive. It would appear that he has a romantic interest in a person who is involved in domestic litigation in Galveston County. He is also under criminal investigation for using county equipment to assist his paramour with her suit. It should be pointed out that he decided to run for the bench in order to disqualify then-judge Roy Quintanilla from presiding over his divorce trial.

His latest crusade is against Galveston attorney Lori Laird. Ms. Laird (click here for Ms. Laird's blog) had the audacity to file a motion seeking to recuse Judge Dupuy in a family matter (I'm sure the fact she represents the judge's ex-wife in a custody suit has nothing to do with it). Judge Dupuy took umbrage at the suggestion that he could not sit on the bench impartially and preside over a trial. Instead of agreeing to recuse himself or sending the motion to Olen Underwood, the administrative judge for the region, Judge Dupuy tried to cite Ms. Laird for criminal contempt.

Apparently Ms. Laird's motion "tended to disrespect authority." He also alleged that it was unprofessional and obstructed the court's ability to do whatever it is his court does. I just wonder if he's going to seek contempt citations against the District Attorney for prosecuting cases that have no business in a courtroom.

I have yet to figure out what rule Ms. Laird broke by filing the motion. He may not have liked the allegations and the insinuations in the motion, but that is hardly a legitimate reason to try to cite an attorney for criminal contempt.

The other day on the second floor of the Galveston County Courthouse (not that this means anything, but the second floor of the Harris County Jail houses the psychiatric ward), a circus hearing was held. For almost two hours, Judge Dupuy asked Ms. Laird's attorneys if they would defend, explain or apologize for the allegations made in Ms. Laird's recusal motion.

The antics in Court Three would be funny, except that there are people's lives at stake. The man sits on the bench because Republican voters in Galveston County couldn't care less who's running for office - provided they have an "r" after they name on the ballot. These god-fearing, gun-loving wingnuts didn't care that Mr. Dupuy was suspended from the practice of law at the time he was running for the bench. They didn't care that he had faced numerous complaints of being incompetent.

I once represented an indigent client in Judge Dupuy's court. I had investigated the case and discovered that the arresting officer had lied about the circumstances surrounding the arrest - and I had the goods to take him down on the stand. My client missed court one day and was picked up when his bond was forfeited. The judge, despite my being the man's attorney of record, signed an order appointing one of the lawyers working the jail docket to represent him. That attorney (and I use the word lightly) dutifully pled my client out without conducting any investigation. I found out when I went to file a motion in the case and was told it was a closed case.

I spoke with Ted Weems, the misdemeanor chief in Galveston (and a good guy to boot), and he agreed that my client was entitled to a new trial. I drafted up an agreed motion for new trial, Mr. Weems signed it and we presented it to Judge Dupuy. He looked at it and asked me what he was supposed to do with it. I told him he was supposed to sign it. He disappeared in his chambers and we waited 45 minutes until he reappeared and signed the order granting my client a new trial. I then showed the "smoking gun" to Mr. Weems who promptly dismissed the case.

Christopher Dupuy has no business sitting on the bench. And the longer he sits there, the more reasons he gives us.

Judicial anger in action

The other day Scott Greenfield blawged about Vanderbilt law professor Terry Maroney who thinks it's a good idea for judges to show their anger from the bench.

According to the world of Terry Maroney, when a judge goes ballistic on the bench defendants realize that the one in the robe really cares about them. The wrath of the judge is a sign of empathy and love.

Well, if that's the case, then Maricelda Marie Aguilar must really be feeling the love from state district Judge Lonnie Cox down on Galveston Island. It would seem that Judge Cox threw a tantrum in the court room when he decided that the plea agreement worked out between the prosecutor and Ms. Aguilar's attorney on a probation revocation case just wasn't acceptable to him.

At the hearing, Cox became agitated when he discovered that Aguilar had missed several meetings with her probation officer, according to the recusal motion. "The judge while sitting on the bench in open court looked at the plea papers and then screamed, 'This is s---. This kind of b------- is not what the drug court should be doing and it is just costing the taxpayers money,'" the motion states. 

The judge told Aguilar she was worthless and asked "if she thought he would turn her loose to kill the child," the motion states. "He told the defendant she was worthless and then told the defendant she was not worth the paper and ink that the plea agreement was written on and proceeded to rip the papers to shreds and throw the papers in the air.

The article goes on to state that the court reporter wasn't present at the time of Judge Cox' tantrum. I suppose there are reasons that judges in Harris and Galveston counties prefer to take pleas without a court reporter present. It certainly makes it harder for a defendant to prove anything untoward happened during the process.

As if to make matters worse, this isn't the first time that Judge Cox has blown a gasket from the bench. My colleague, Byron Fulk, had firsthand experience raising the judge's ire. His client was on the receiving end of the tirade when Judge Cox didn't like the deal that Mr. Fulk had worked out on his client's behalf.

As Mr. Greenfield pointed out

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge's moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

Mr. Maroney speaks as one who hasn't spent any appreciable time in the courthouse standing next to a client facing a judge. Yes, judges are people. But when they put on that robe and sit down behind their desk they are supposed to be neutral and detached. Blowing a gasket when you don't like the deal that the attorneys have worked out is far from being neutral and detached.

It's also unprofessional. If Judge Cox wants to vent, he needs to go home, crack open a beer and let it rip. If he's going to do it from the bench he might want to consider a new line of work.

The assault on indigent defense down on the island

For the latest assault on indigent defense we go down the road to Galveston County where judges will vote on changes to the county's indigent defense program this month.

According to scuttlebutt, the new policy will include a strong suggestion that three hours is appropriate for a misdemeanor case resulting in a plea. That means three hours to consult with the client, review the state's file, investigate the facts, interview witnesses, consult with the prosecutor and appear in court for the plea.

If the judges intend to question vouchers should an attorney ask for more than three hours compensation for a plea bargain case, they are taking direct aim at the notion that an indigent defendant is as entitled to a vigorous defense as a client who can afford to hire counsel.

If the idea is to cut the amount of money the county spends on appointed counsel in misdemeanor cases, the result will be a much more efficient plea machine on the second floor of the county courthouse. If attorneys are going to have to fight to be compensated for more than three hours on a plea bargain case, the plan creates an incentive for a race to the bottom.

Why spend the time working up a case when you can be paid just as much sitting on your ass doing nothing just waiting for the next court date to plead your client out? Everyone who has practiced for any time in Galveston knows that when the basis of the stop is criminal trespass or not walking on the sidewalk, that something foul is afoot.

I once had a minor dope case in which the reason for the stop was my client walking in the street and not on the sidewalk. After viewing the area of stop on Google Maps and then driving through the neighborhood, imagine my surprise that there wasn't a sidewalk to walk upon. My client's case was dismissed, but, with another attorney and the presumptive three-hour rule, what fate might the young man have faced?

Of course the adequacy of defense that an indigent client receives isn't of much concern to the judges. Indigent defendants don't make up a political bloc that candidates have to attract in order to win the election. The judges are aiming for higher income voters in the suburbs in the northern half of the county - and those voters don't give a damn about poor black or hispanic youth on Galveston Island or just over the causeway.

With the new Republican majority in Galveston County, there is no constituency that will be in arms about the state of indigent defense. And with no one to stand up for the poor, there will be no one to challenge the judges as they push to gut indigent defense.

Since around 90% of criminal cases end in plea bargains, this race to the bottom will only serve to eviscerate further indigent defendants' right to (effective) counsel.

You don't need a weatherman to know which way the wind blows

Candidates who switch parties between elections open themselves up to criticism that they are either sell-outs or opportunists. Some manage to overcome the perception and hold on to their office while others fall flat on their faces.

Down on the island, State District Judge Wayne Mallia wasn't so fortunate. Judge Mallia sits on the bench of the 405th Judicial District. He was elected as a Democrat. After seeing the bloodbath in the 2010 elections, the judge decided it was time to switch parties.

Now I've had plenty of matters before Judge Mallia and I've always found him to be a fair, even-handed judge. I might not like all of his decisions but I never felt as if I were starting off at a disadvantage in his courtroom.

The voters in Galveston County weren't so impressed with his last minute conversion, however, as he was forced into a run-off after failing to pick up a majority of votes in the GOP primary in May. Last week he was handed his pink slip as the new conservative majority in the county decided that Michelle Slaughter was a better choice to sit on the bench.

Of course Ms. Slaughter has no experience in criminal law which might not be such a big deal except that the district courts in Galveston County handle both civil and criminal matters. Showing her ignorance of the way the criminal courts operate, Ms. Slaughter has announced that she just won't be giving out probation to repeat felony offenders and that she won't be afraid to revoke someone's probation if they screw up.

Does that mean that she's planning on busting pleas left and right? You see, Ms. Slaughter, it isn't Judge Mallia who's handing out probations like candy - it's the result of plea bargains between the prosecutor and the defense attorney. With rare exception the judge will accept the deal because he wants the case off his docket.

People choose their political party because their daddy voted that way or because the party line reflects their views or because it's the only game in town. Many voters claim that they will vote for the person they think is the best candidate regardless of the party affiliation - at least that's what they say. But voters aren't so understanding when candidates jump from one party to another in the name of political expediency.

Judge Mallia stuck his finger up to see which way the wind was blowing and guessed wrong.

District Clerk to resign

Faced with mounting legal challenges, Galveston County District Clerk Jason Murray has announced that he will resign from office within the next two weeks. In addition to a recent DWI in League City and his probation for assaulting his wife, Mr. Murray appears to be the target of a special prosecutor retained by the Galveston County District Attorney's Office.

Mr. Murray was swept into office in the Republican sweep of Galveston County in 2010. Growth in the northern part of the county and the decline of the population along the coast thanks to Hurricane Ike have handed control of the county to the Republican party.

In their haste to vote for any breathing thing with an R after its name, Galveston County elected as district clerk, a man plagued with so many personal demons he is having to leave office in shame and as judge, a man who was on probation from the State Bar of Texas for ethics violations.

GOP-mania also caused a State District Judge to switch his allegiance from the Democratic Party to the Republican Party so that he could retain his seat. In fairness, Judge Wayne Mallia has always been just a tad-bit conservative, but, when the winds blew from the left, he signed up with the Democrats in order to win his seat and now, with the winds shifting, he's going to the other side. Just a word of caution, political expediency and ideological purity are too very different things. If he cheated on her to be with you, what makes you think he won't do it again?

Word on the street is that there is a line of candidates ready to run in the GOP primary for the bench in County Court Three in 2014 despite the fact that a Republican (albeit one that makes Barry Goldwater look like a damn liberal) is already sitting there. My sources tell me that one attorney who was in line for a district court seat was asked to step aside and run for Dupuy's seat next time around.

DA drops case against blogger

Barbara Nichols got her panties in a wad. Ms. Nichols called the local police. The local police chief, Kenneth Cook, called the District Attorney's Office. The DA's Office gave the police chief the thumbs up. The local police arrested a blogger. The DA charged the blogger with online impersonation. The DA then realized he would end up with a bunch of egg on his face so he reversed course.

Allan Batchelor is the man behind Island Drumz, a blog about the goings-on in the enclave of Clear Lake Shores in Galveston County. Some of his posts deal with politics. Some of the rhetoric can get heated. Apparently Mr. Batchelor had some unflattering things to say about Ms. Nichols, the wife of city council candidate John Nichols. According to Ms. Nichols, Mr. Batchelor posted a comment with her address asking people to send her spam and viruses.

Here is what the fuss was all about. Since the incident, Mr. Batchelor removed Ms. Nichols' email address from the post.

Let’s jump back to my distribution list for a minute. How many of you got an email from Barbara today? I offer you my most sincere apologies. That is an old chili invitation list that somehow ended up on Barb’s computer. I asked her last year to please do not broadcast emails out in the open like that but I can see my plea for your privacy fell on deaf ears. Looks like she is practicing being an elected official. Mrs. Nichols, __________ I hope you get all the SPAM you deserve. You obviously have no concern for our privacy so I will wish the PC virus demons from hell on your inbox. I hope the rest of you have let Barb know you wish her well.

Section 33.07 of the Texas Penal Code defines the elements of online impersonation. We know Mr. Batchelor was charged with an offense of 33.07(b) because he was charged with a Class A misdemeanor, according to his account of his time in jail. Of course the immediate problem with charging Mr. Batchelor with online impersonation is, well, he made no attempt to give the impression that he was Ms. Nichols.

A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:
(1)  without obtaining the other person's consent;
(2)  with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
(3)  with the intent to harm or defraud any person.

All of this over a city council race in a little pimple of town that no one outside of Clear Lake Shores has ever heard of (except for me since I once represented a man accused of cursing out a waitress at the local IHOP. The municipal court is housed in a restaurant/community center and the "judge's chambers" are the kitchen.).

Publishing Ms. Nichols' e-mail address probably wasn't the smartest thing Mr. Batchelor could have done - but it certainly wasn't the worst. I'm sure there are plenty of folks in Clear Lake Shores who knew Ms. Nichols' e-mail address from the broadcast e-mails she sent out.

But to charge a man with a criminal offense because the wife of a city council candidate was offended is beyond absurd. It reflects poorly on the police chief who either had nothing better to do or wasn't smart enough to figure out it was a bad idea. It reflects poorly on the Galveston County DA's Office who authorized the filing of the charges for a case it could never hope to prosecute.

H/T Grits for Breakfast

Listening in

While Harris County is looking to install video conferencing in the jail and promising that the integrity of the attorney-client relationship will not be compromised, the word on the street is that the Galveston County Jail was recording phone calls from the jail between inmates and their attorneys. And, as if that's not bad enough, some of these recordings were forwarded to the Galveston County District Attorney's Office.

Of course Jack Roady, the Galveston County DA, claims that the procedure is being stopped. Excuse me, Jack? "Being stopped?" Really. Either the phone calls are being recorded or they aren't. It's quite easy to stop the procedure.

The very fact that those calls were recorded raises the question of whether or not an agent of the state listened. And what about those cases in which the DA didn't request recordings of jail house phone calls? How many people had their right not to incriminate themselves infringed upon by Galveston County? How many had their right to privileged communication with their attorneys violated?

Now it's time for the DA's Office to come clean and notify defendants and their attorneys on all cases in which these recordings were made and forwarded to the prosecutors. If there is any honor in the office, Mr. Roady should sign off on orders granting writs of habeas corpus in each and every one of those cases.

The actions of Galveston County are reprehensible and call into question the validity of the criminal (in)justice system on the island.

Here's a little Blondie for y'all.

Pressure builds on judge to step down

Well, what do you know, Christopher Dupuy is back in the news.

If you don't know, Mr. Dupuy is the judge in County Court at Law No. 3 in Galveston County. At the time he was running for the bench the State Bar had placed him on probation for violating ethics rules. The seat he ran for was held by the judge in the divorce case filed by his now ex-wife. His platform was a bizarre assortment of right-wing positions that would have made any wingnut proud. He sits on the bench because Galveston County voters in the north end of the county blindly selected the straight ticket option for the Republicans.

SUSPENSIONS On Oct. 9, 2009, Christopher Dupuy [#24003931], 38, of League City, accepted a six-month, fully probated suspension effective Oct. 9, 2009. An evidentiary panel of the District 5 Grievance Committee found that Dupuy’s professional websites contained statements that omitted facts necessary to make the statements considered as a whole not materially misleading. Also, Dupuy’s advertisement in a telephone directory did not conspicuously publish the name of at least one lawyer responsible for the content of such advertisement, and did not disclose the geographic location, by city or town, of Dupuy’s principal office. Dupuy failed to file the telephone directory advertisement with the State Bar Advertising Review Committee.

Dupuy violated Rules 7.02(a)(1) and (a) (2); 7.04(b), (c), and (j); and 7.07(b). He agreed to pay $2,500 in attorney’s fees and costs.

-- Texas Bar Journal, January 2010

If you've ever had the "pleasure" of practicing in Judge Dupuy's court you know what an interesting experience it is. I had a case in which the prosecutor and I submitted an agreed motion for new trial. When I handed him the motion, the judge looked at me and asked what he was supposed to do with it. I told him it was an agreed motion and that he should sign it. He took it under advisement and made up wait for 45 minutes while he went back in his chambers and did God knows what before returning to the bench.

In his latest misadventure, Mr. Dupuy was fined $7,500 by a judge for improperly trying to remove a judge who was hearing a malpractice case against him filed by a former client. The $7,500 fine is in addition to an $1,800 levy ordered against him for failing to appear at a deposition in that case. David Bryant, a Houston attorney handling the suit, told the Houston Chronicle he thought he'd have to attach Mr. Dupuy's bank account in order to get the money.

Dupuy is also under investigation by the Galveston County District Attorney's Office for allegedly lying about his residency on the application he filed to run for the bench.

The situation is so bad that the Galveston Daily News is calling for Dupuy to resign from the bench.

The man is not qualified to sit on the bench. The unethical manner in which he ran his practice. Sleeping with an attorney practicing in his court. Lying on his application to run for office. The unprofessional way in which he conducts business in his courtroom.

The folks in Galveston County who voted straight ticket Republican got exactly what they deserved.

Transcript of DuPuy hearing

A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.