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.

Can't we all just be friends?

If you're a judge, is it okay for you to set up a Facebook page and "friend" lawyers who appear in your court?

If you're in Florida, the answer is no.

According to the Judicial Ethics Advisory Council,

With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the Committee believes that three elements must be present.  First, the judge must establish the social networking page.  Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member's page.  Third, the identity of the “friends” or contacts selected by the judge, and the judge's having denominated himself or herself as a “friend” on another's page, must then be communicated to others.  Typically, this third element is fulfilled because each of a judge's “friends” may see on the judge’s page who the judge’s other “friends” are.  Similarly, all “friends” of another user may see that the judge is also a “friend” of that user.  It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Florida's Canon 2B reads:

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

The opinion goes on to say that it is not the act of "friending" on Facebook that violates the rules, it is the appearance that such conduct might lead one to believe a special relationship exists between the judge and his or her "friends."

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

But, assuming a judge being "friends" with lawyers on a social networking site violates ethics rules in Florida, would such conduct violate the rules in Texas?

Canon 2B of Texas' Code of Judicial Conduct reads:

A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Now, let's be honest. We all have "friends" on Facebook that we don't know or haven't had any actual contact with in years. I'm "friends" with a bunch of folks I went to high school with that I haven't seen or talked to in 25 years. Just because you're "friends" with someone on Facebook doesn't mean that person has any special pull.

Judge Susan Criss in Galveston and I are "friends" on Facebook. I practice in her court. I have no special privileges when I set foot in her courtroom. Judge Criss posts pictures of the sun setting over the island and of her dogs chewing up her slippers. It's funny.

I'm not concerned about a judge and a lawyer being "friends" on a social networking site. That doesn't convey, to me, the appearance of impropriety. But what about lawyers and firms who donate money to judicial campaigns? The names of those donors are not readily available (though they are included on campaign finance reports filed with the state).

Judicial elections are a necessary evil in Texas - it's a bad system but it's better than any alternative. If being "friends" on Facebook is a sin in Florida, what about donating money to judicial election campaigns? Which is likely to have more influence? I'm not saying that just because an attorney or a firm donates money to a campaign that they will receive special treatment in that court (or the converse), but if we're talking about appearances...

A little election post-mortem

In light of the Republican sweep of the judicial races in Galveston County, we once again hear calls for non-partisan judicial elections. Those calls, by and large, come from the folks who came up on the short end of the stick.

Sure, there are some folks who will be sitting on the bench who have no business doing so all because they had an "R" after their name. Of course, there are other folks sitting on the bench who have no business doing so because they a "D" after their name. There are also quite a few folks who are well-qualified to sit on the bench who aren't because of the letter after their name.

What's the alternative to partisan judicial elections, I ask you? There is little a judicial candidate can say on the campaign trail other than they will follow the law and will treat everyone who comes before them with respect. They can talk about their experience and why they're are more qualified to sit on the bench than their opponent, but, outside those attorneys that do their work inside the courtroom, it's an abstraction.

What is most important is that the the political process be fair and transparent. And that judges abandon the politics in the courtroom and chambers. I believe most judges of both parties do their job without regard to politics regardless how they were chosen. I have been elected in a partisan election and lost an election in a partisan primary...I prefer contested elections because I believe the people have the right to choose their state and county judges...Even when my party  or I lose an election I  support the process. The people have the right to choose even  when I disagree with their choice. I  do not have a problem with the partisan process. Partisan primaries are a screening process. I think even  less people would participate in non-partisan elections...Each time lawyers and judges that were aligned with the losing party complained after the loss about the partisan part of the process claiming unqualified judges were elected. The truth is many qualified and unualified people get elected to benches and other offices every election year. Elected judges are not guaranteed infinite job security  in exchange for doing a good job.And sometimes the most qualified applicant does not get the apppointment. No sytem guarantees that that the best person always wins. The system is not flawed just because our party or favorite candidate or applicant does not win.

-- Judge Susan Criss, 212th Judicial District Court, Galveston County, Texas.

In a non-partisan election judicial candidates would have to educate the public about why they should sit on the bench. That means money - and lots of it. And who are the biggest campaign contributors to judicial candidates? It shouldn't surprise you that they are the attorneys who appear in their courts. If you want more special interest money and a handful of ethical dilemmas, make judges run without party affiliation.

Appointing judges is a non-starter in Texas. We don't trust the government any further than we can throw it. Texans wanted a weak state government so they chose to elect judges after Reconstruction.

Retention elections aren't the answer. Talk about a cesspool of special interest money. Judges would be, in essence, running against themselves. What percentage of the vote would be required for a judge to retain a bench? And what would happen if a judge failed to achieve that percentage? Would there be a special election to pick a judge or would we allow the governor to appoint someone to sit on the bench?

I think Judge Criss hit it on the head with her comments on her Facebook page. Partisan elections might not be the best method of picking judges, but it sure beats the alternatives.

A judge voices her concerns

Judge Susan Criss of Galveston County's 212th Judicial District Court left the following comment on my Facebook page with regard to Thursday's post "Vampires on the Bench" ...

[P]lease explain how the defense att[orneys] participated. A few years ago our judges were asked to participate in this also. Because of my concerns about the constitutionality of this I have never participated in it. The only two judges in our county who have are both GOP. The DA's do have to communicate with us about getting warrants and our availability when they need them so I am not bothered by the sending of the email. I appreciate the intent is [to] get drunks off the road but do not agree with the legalit[y] of the program.

I appreciate the need for officers to be able to contact judges to request warrants after hours. In some instances that means having an official after-hours judge to review warrant applications and in other cases it involves the police finding a "friendly" judge to sign a warrant.

My problem with the e-mails is two-fold. First, this is not an e-mail from the Office of Court Management to judges to find out who is available to review warrant applications, these are e-mails from the Harris County District Attorney's Office to find judges who are willing to "review" warrant applications on "No Refusal Weekends." Since when are the judges and prosecutors supposed to be on the same team?

Secondly, everyone is aware of the game and everyone is also aware that the entire purpose of this procedure is to obtain a blood sample, by force if necessary, to make it easer to convict a motorist who exercises his right not to blow into the state's breath test machine. In order for this legalized coercion to work, there must be judges available who are willing to disregard the law and order forcible blood draws for an offense that is one step removed from a traffic ticket.

I do want to take a moment to thank Judge Criss for her comment. It's nice to see that there's at least one judge who has some questions about the legality of "No Refusal Weekends."

No experience needed

Earlier this week State District Judge Susan Criss from down in Galveston posted a comment on her Facebook page that 40 of the 111 Chief Justices of the U.S. Supreme Court had no experience as judges. Then Rick Casey of the The Houston Chronicle wrote about the lack of judicial experience for judges on the two highest courts in the state. According to Mr. Casey, five of the judges on the Texas Court of Criminal Appeals had no judicial experience prior to being elected (I don't know if using Judge Killer as an example is a good idea, however). He also pointed out that the Chief Justice of the Texas Supreme Court, Wallace Jefferson never wore a judge's robe before he was appointed to the court.

Senate Republicans are aiming to make an issue of President Obama's selection to fill the seat of Justice John Paul Stevens having no prior judicial experience. Elena Kragan is the Solicitor General for the United States and argues before the Supreme Court on issues involving the federal government. Funny that Republicans didn't have a problem with President George W. Bush's selection of Harriet Miers, former White House Counsel, to fill a seat on the bench. But, then, consistency has never been a priority of the two major parties.

Neither former Chief Justice Earl Warren nor Chief Justice William Rehnquist, appointed by Presidents Eisenhower and Nixon respectively, had any prior judicial experience before taking their seats on the high court.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. -- U.S. Constitution, Art. III, Sec. 1

The U.S. Supreme Court was created by Article III of the United States Constitution. Interestingly enough, there is no requirement that a nominee for the Court even be a lawyer.

Remember to think before you post online

The ABA Journal ran a story on its website yesterday about Galveston County District Judge Susan Criss and the dangers of Facebook and other social media sites.

Judge Criss has a Facebook page and is known to respond to comments by her "friends" from time to time. I've even got a nice message or two from Her Honor. She said that in order to avoid the appearance of partiality, she will "befriend" any attorney who asks her.

In a talk at the ABA's Annual Meeting she reminded the attorneys in the room that what you put up on Facebook, Twitter, MySpace or a blog is out there for all the world to see. She recounted the time an attorney asked for a continuance due to the death of a family member -- the only problem was the attorney had been posting updates on Facebook about quite the rowdy weekend.

Just as I warn my clients to watch what they put up on their Facebook pages while a case is pending, we need to be careful what we put up for the world to see. Much like those pictures your client posted of his drunken weekend on the beach, your comments will linger in the ether of cyberspace long after you've forgotten what you were talking about.