What are they hiding?

Last month I filed a request under both Chapter 552 of the Texas Government Code (Open Records Request) as well as Rule 12 of the Texas Rules of Judicial Administration for copies of all incoming and outgoing communications from judges and employees of the Office of County Court Management regarding judges volunteering to "review" warrant applications on "No Refusal Weekends."

In response to my requests, I received two letters from Judge Jean Hughes, the presiding judge of County Criminal Court at Law No. 15 telling me that the material I requested was exempt from disclosure under Rule 12.5(f).

Texas Rules of Judicial Administration, Rule 12.5:

The following records are exempt from disclosure under this rule: 

(f) Internal Deliberations on Court or Judicial Administration Matters. Any record relating to internal deliberations of a court or judicial agency, or among judicial officers or members of a judicial agency, on matters of court or judicial administration.

Now Rule 12.2(d) defines a judicial record for purposes of this statute:

Judicial record means a record made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function, regardless of whether that function relates to a specific case. A record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record. A record is a document, paper, letter, map, book, tape, photograph, film, recording, or other material, regardless of electronic or physical form, characteristics, or means of transmission.

The electronic and written communications were "made" by the court during its regular course of business. The e-mails were sent and received via the judges' county-provided e-mail accounts and did not relate to any specific case.

Black's Law Dictionary defines "deliberation" as:

The act of carefully considering issues and options before making a decision or taking some action.

Might a judge "deliberate" when asked to volunteer to "review" warrant applications on a "No Refusal Weekend?" Maybe. But, if the e-mail is addressed to the judge and he or she sends back a reply agreeing to volunteer have their been an internal deliberations? And with whom would the judge deliberate?

While a judge is a "judicial officer" per Rule 12.2(c), e-mails between the judge and the DA's Office are not records of internal deliberations nor are they communications between judicial officers or members of a judicial agency. 

They may be embarrassing, they may shine a little light on the relationship between judges in Harris County and the Harris County District Attorney's Office and they may make the public a little skeptical about the independence of the county judiciary.

The one record that was released is an e-mail dated July 19, 2010 from Ms. Nancy Hennessy of the Harris County Sheriff's Office to Ms. Blanca Villagomez, the chief hearing officer in Harris County.

We are conducting a DWI/no refusal initiative this weekend on Saturday, july 24 from 8p-4a in the northwest part of the county. It will be a multi-agency initiative with approximately 80 units participating. I have confirmed a blood draw location at jersey village pd. I also asked if one of their municipal judges could be made available for blood warrants but at 125/hr, I was told no. I asked around and was told that you were the person I needed to speak to to see if the county could provide a judge at the JV location for blood warrants or if arrangements could be made to have 2 judges on duty at IPC so a judge would be available without getting caught up in dockets. Could you provide me any information or direction as to who I would need to contact.

Thanks in advance.

I'm not sure if Jersey Village said they wouldn't provide judges for $125 an hour or if Harris County decided they wouldn't pay $125 an hour for a judge to "review" warrant applications. Whichever it is, the fact that the Sheriff's Office is communicating directly with a judge who determines whether there is probable cause to arrest is disturbing.

Vampires on the bench

"Thank you again for agreeing to help out with the Holiday No Refusal program. I know that you've been very generous with your time in the past, and I'm trying to "share the opportunity" with as many people as possible so that we don't abuse those Judges who haven't needed the arm-twisting to help! I'm also working to find a long-term solution that doesn't impose on the county court judges.

"At any rate, the short-term dictates that I stick with looking for volunteers...

"Is there any chance that tomorrow night the 12th is convenient? If not, how about next Thurs, Fri or Sat?"

E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 14 Judge Mike Fields, dated 12/11/2009.

That's right, the Harris County DA's Office is looking for "volunteers" to sign pro forma search warrant applications so that the vampires patrolling the streets can strap you down and draw your blood. What's going on here?

The excerpts in this article were obtained via an open records request to the Harris County District Attorney's Office for all incoming and outgoing communications between employees of the Harris County DA's Office regarding judges volunteering to review warrants on No Refusal Weekends.

Is a neutral and detached magistrate as much a figment of our imaginations as the Tooth Fairy? Why is the DA's office put in charge of assigning judges to "review" warrant applications on No Refusal Weekends? Apparently there's no need to bother keeping up the charade of an independent judiciary in Harris County.

The No Refusal Weekend is a joint law enforcement effort to emasculate the Bill of Rights; the judiciary should not be playing a role in this mockery of our Constitution. They certainly shouldn't be exchanging e-mails with prosecutors on what nights work best for them. Somehow I'm not thinking any judge who might dare to question the legality of this fiasco is going to be on Ms. Evans' e-mail list.

"I am the new Chief of the Vehicular Crimes Section and will be coordinating the No Refusal Weekends. I understand that you are looking for information about future dates. HPD requested to run No Refusal on a number of high volume nights, and Judge Lykos has agreed to pay for ADA's and a nurse to staff those nights. We will be running No Refusal on the following days:

Thursday, Dec. 10

Friday, Dec. 11

Saturday, Dec. 12

Thursday, Dec. 17

Friday, Dec. 18

Saturday, Dec. 19

Friday, Dec. 25

Saturday, Dec. 26

Thursday, Dec. 31

Friday, Jan. 1

Saturday, Jan 2

"As you can see, this upcoming weekend is NOT part of the program. On the involved dates, from 10pm to 12am, we will be presenting the search warrants to the City of Houston Municipal Judges. I intend to approach the misdemeanor Judges about volunteering to be available by fax between the hours of 2 and 5am. If I can get volunteers, that should offer some relief to the Magistrate Judges during the high volume hours. Obviously, if I can't get volunteers, we'll have no choice but to approach the magistrate on-duty when they are not in docket during the hours of 2-5am.

"For this past weekend, we filed more intoxication charges than on Thanksgiving weekend last year but sought far fewer search warrants. My hope is that we will continue to procure good evidence by consent without having to resort to a search warrant. I am certainly looking for ways to make No Refusal Weekends as efficient and effective as possible, so please let me know if you have any requests or recommendations."

E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 15 Judge Jean Hughes, dated 12/3/2009.

Harris County prosecutors want to make forcing motorists to volunteer evidence as "efficient and effective as possible" and they are going to the judges for ideas on how to do so. Since when do the judges of Harris County work for the Harris County DA's Office? Since when do the judges of Harris County work for local law enforcement? The role of a judge is to be a neutral arbiter in a dispute and to insure that the rules of evidence and procedure are followed. Their role is not to be a partner with law enforcement and prosecutors to make it easier to prosecute and coerce pleas from their fellow citizens.

And, just as disturbing, some local criminal defense attorneys have participated in these charades -- some while working for the Harris County DA's Office and others while (supposedly) practicing criminal defense.

Parsing Judge Hughes' statement

parse - (v), etymology: Latin pars orationis part of speech; to examine in a minute way : analyze critically (having trouble parsing...explanations for dwindling market shares - R.S. Anson) intransitive verb

(From the Merriam-Webster OnLine Dictionary)

"It's better that [the prosecutors] try quality cases, rather than ones that shouldn't have been tried in the first place because that wastes jurors' time and costs money." -- Judge Jean Hughes, CCCL15, Houston Chronicle, March 28, 2009

I said in my post on the announcement of the Harris County District Attorney's whale hunt that I was troubled many many things I found in this quote from Judge Hughes. Now it's time to examine them.

What does Judge Hughes mean by better? 

Does she mean "more attractive, favorable or commendable?" And, if so, to whom? Does she mean "more advantageous or effective?" Again, if so, to whom? Or does she mean "improved in accuracy or performance?" If she means the latter, is she speaking in terms of the state?

Being that she then refers to the prosecutors in her quote, I would take that to mean she's defining better in terms of what benefits the prosecutor and/or the state. As a jurist, however, Judge Hughes is not supposed to take sides in any legal dispute. Her job is to hear the facts and apply the law. The outcome of any of these matters should not play a role in the decision-making process.

What does Judge Hughes mean by quality cases?

Quality refers to "a degree of excellence" or "a superiority in kind." How does one define what makes an excellent case? Is it the absence of fact or is the absence of question? Again, it depends on which side of aisle you sit and, once again, as Judge Hughes is supposed to maintain a neutral presence in the courtroom, this phrase is meaningless.

Some 90-95% of all criminal cases never go to trial. Some of these are dismissed because of an absence of fact and plea agreements are reached in others because of an absense of (remaining) question. What's left are cases with disputed facts and questions and cases in which the citizen accused has no incentive to enter into a plea agreement. 

What is Judge Hughes saying when she refers to cases that shouldn't have been tried in the first place... and how does she determine which cases fall into that category?

If the case shouldn't have been tried because the state did not have enough evidence to convince a jury to find the citizen accused guilty beyond a reasonable doubt, then the prosecutors who brought the case violated their ethical obligation to seek justice. If she's referring to cases in which citizens accused of crimes have demanded their right to a trial despite overwhelming evidence against them, then she is denigrating the concept of reasonable doubt. 

A judge has the authority to determine if the former occurred upon the citizen accused's request of a directed verdict on the grounds that the state failed to prove each and every element of its case beyond a reasonable doubt. The only time a judge can rule on the latter is if the citizen accused opts for a trial before the judge.

Judge Hughes said trying these cases "wastes jurors' time and costs money." Exactly how?

If it's the result of the state taking cases to trial in which the prosecutors know they can't meet their burden of proof, I would agree with Judge Hughes. But I'm troubled if she's referring to cases in which a citizen accused exercises his right to trial by jury and loses. I would like for Judge Hughes to explain how it's a waste of time and money for one to exercise a right guaranteed by the Constitution. Men and women have died in this country and around the world for that right -- a day or two out of someone's schedule is hardly equivalent.

What does Judge Hughes consider big problems?

Big problems for whom? Merriam-Webster defines problem as "a source of perplexity, distress or vexation." 

Every criminal defense attorney who's practiced in Harris County knows that the court coordinators in the misdemeanor courts constantly push for cases to be plead out or set for trial and some judges go out of their way to discourage citizens from exercising their right to trial by jury. And what about the citizen accused? Now he's got to pay a trial fee and see his case dragged out for months before it's resolved.

I take Judge Hughes statement to mean that she isn't troubled by the notion of forcing one citizen accused of a crime in each court to spend more time and money to resolve a case that he or she has already decided to resolve short of trial.  After all, it's not her life, or the lives of the prosecutors in her court, being affected.