Has she no shame?

It takes a certain kind of person to want to be an elected official. It's not everyone who can beg and grovel for money and signatures on a daily basis. Most of us have a hard time looking someone in the eye and lying to their face - and then denying you lied when called on it.

More than that, a politician has to be absolutely shameless. It was brilliant how Mitt Romney slammed President Obama's health care plan after he had put (essentially) the same plan into work in Massachusetts. Listening to him explain how his was good and Obama's was bad just made your head spin.

Now we can welcome disgraced former state district judge Elizabeth Coker to the ranks of those who truly have no shame, no conscience and no ethics.

Fresh off resigning from the bench after being called out for sending an e-mail to a prosecutor listing some questions she might want to ask on cross-examination, Ms. Coker has entered the Republican primary for Polk County District Attorney against the incumbent, William Lee Hon.

What a delightful irony these two are running against each other as it was one of Mr. Hon's investigators who exposed Ms. Coker's unethical behavior and one of Mr. Hon's prosecutors who was the beneficiary of said e-mail.

As I've said before, it wasn't the first time Ms. Coker acted unethically. It was just the first time she got caught doing it. And, I guarantee you it wasn't the first time that one of Mr. Hon's prosecutors was on the receiving end of one of her e-mails. It's always intrigued me that it was one of the DA's investigators who blew the whistle on the whole operation.

Ms. Coker's decision to run against Mr. Hon is obviously Act II of the drama. Why Mr. Hon made the call to rat out the judge will make for an interesting back story in the campaign. Kaycee Jones, the prosecutor who received the messages, now sits on the bench of the 414th District Court and is facing a hearing before the State Bar's disciplinary committee for her role in the scandal.

Mr. Hon deserves as much damning as Ms. Coker for the incident since we should all realize that this had been going on for some time and that Mr. Hon was well aware of the practice.

Ms. Coker took a leave of absence from the bench in late October and her resignation became effective this past Friday. It's interesting that she had no compunction about continuing to accept a paycheck for work she wasn't doing because she couldn't follow the rules for being a judge. And what better qualifications could you want in a district attorney?

Ms. Coker doesn't think there's a problem with serving as a DA since the order from the State Commission on Judicial Conduct just states that she can't serve as a judge. However, local attorney Laura Prigmore wonders if that is the case since prosecutors are listed under the judicial branch in the State Constitution (in Article 5, Section 21) - which might explain why so many judges think they are prosecutors.

Is it time to bail on the bond system?

In Maryland whenever someone was arrested they would be brought before a judge who would determine if the defendant should be granted bail, should be held without bail or should be released on their promise to appear in court. This system functioned efficiently - primarily because it excluded lawyers.

At least that's how they used to do it before the Maryland Court of Appeals found the bond hearings to be unconstitutional because defendants were denied the assistance of counsel. Now the state is scrambling to find a new way to decide who gets to sit in jail awaiting trial and who gets to sleep in their own bed. Due to the cost of providing additional public defenders and prosecutors at bail hearings, the state is considering doing away with the entire bail bond system.

Of course the bondsmen are a powerful lobby who have a direct interest in the way this matter proceeds. And they have friends - trial lawyers - in the Maryland legislature who love the campaign contributions.

The purpose of bond has always been to assure a defendant shows up in court. The seriousness of the charge and whether the defendant is a danger to society are other factors that come into play - but the presumption is that every defendant is entitled to bail. The system has become one in which those who have the resources are able to bond out while those without money, who are charged with identical offenses, sit behind bars until their cases are disposed.

The ruling in Maryland interests me because we have a similar system here in Harris County. If you are arrested in Harris County you will be taken before a magistrate on video. The magistrate will admonish the defendant to keep his damn mouth shut and will then determine the bond amount. For virtually every case that amount is written on a sheet of paper - the county bond schedule.

Harris County misdemeanor bond schedule

Harris County felony bond schedule

The defendant isn't afforded the assistance of counsel at this hearing. There is no one to speak for him. The case is filed, the defendant is admonished and the judge looks down at a piece of paper to determine how much it'll cost the defendant to sleep in his own bed while his case is pending.

The Sixth Amendment has been interpreted to mean that a criminal defendant is entitled to the advice of counsel at any crucial stage in our criminal (in)justice system. But, in Harris County, that initial bond determination isn't considered a crucial stage in the process.

The benefactors are the county's bondsmen who exact their pound of flesh before sending the magic paper to the county jail. The other benefactors are the judges who can rely upon the bond system to coerce defendants behind bars to plead out their cases in order to go home. Just imagine the chaos if every criminal defendant had the ability to fight their case from outside the jail. No longer would the state have the added bonus of pretrial incarceration as a negotiating tool.

Of course we have other problems in Harris County - most stemming from attorneys and judges who don't bother to read Article 1, Section 11a of the Texas Constitution. That provision sets forth who can be denied bail and how that determination is to be made. According to the Constitution, a defendant may only be held without bail (on a non-capital case) if a hearing is held within seven days of his arrest to determine whether or not the state can deny bond. Very few people know this and very few attorneys ever litigate the matter. Ask a prosecutor about it and they'll just tell you the bond schedule says he doesn't get a bond.

In a sane world the notion that a pretrial hearing to determine whether a defendant is entitled to a bond is not a crucial stage in the process would be laughable. Here in Harris County it's called "doing business."

The biggest loser

14,278.

That's the number of votes Republican judicial hopeful Brad Hart lost to incumbent Judge Maria Jackson this past November.

The voters of Harris County spoke and they rejected Mr. Hart's effort to move up to the 14th floor at 1201 Franklin from the 4th floor.

I've had a couple of cases over the years with Mr. Hart. He was always very reasonable to work with. He seemed to be the model of a career prosecutor (and I don't mean that in a bad way). His trademark was cutting to the chase. He didn't waste your time with a bunch of bullshit.

But then something funny happened. Judge Belinda Hill announced to the world that she was taking a top job with the DA's office. Even though her new job opportunity made her sitting on the bench the very definition of the appearance of a conflict of interest, there she sat because she couldn't step down until Gov. Goodhair appointed a new judge.

Well, actually she could announce her resignation from the bench but that resignation couldn't take effect until a new judge was appointed. Jacqueline Smith in the civil courthouse found that out the hard way when she tried to quit during the middle of her term to take a job with a white shoe firm downtown but was told that she had to listen to lawyers arguing until someone got around to finding someone else to take her place.

But I digress.

The other day Rick Perry appointed a new judge for the 230th Judicial District Court. Brad Hart.

So, while my colleague Murray is nursing his man-crush of the latest prosecutor cum judge, it's up to me to point out what's wrong with the appointment.

Gov. Perry pretty much told the voters of Harris County to go screw themselves by appointing a person who lost in November to ascend to the bench. Perry's move is a slap in the face to this little thing we call democracy. This also makes it painfully obvious that those who propose that we change our system of selecting judges from popular vote to appointments and retention elections haven't the slightest clue as to what they're talking about.

This is just the thing that the authors of the 1876 Texas Constitution did their best to prevent. As a result of Reconstruction, that document designed a decentralized government with most of the power resting with the citizenry. But what Gov. Perry has done is subvert the will of the people.

And before y'all jump up and scream that down ballot races are largely determined by straight ticket voting at the top, the fact remains that that is the system we have and that's the system we used last November. A good many Republican candidates for judge were banking on voters in the suburbs turning out in large numbers to vote for Mitt Romney. Unfortunately for them, the turnout in the city was enough to overcome the GOP votes in the county and they did not sweep into office.

But Rick Perry and his minions don't care about elections. They don't care about anything other than advancing their right wing philosophy which includes packing the courts with as many Republicans and conservatives as possible.

If we did away with popular elections whoever the governor appointed would sit on the bench until they got tired of doing so because retention elections have become the next best thing to lifetime appointments. All retention elections do is encourage large law firms to pump more and more money into judicial races creating nothing but conflicts of interest in the courthouse.

And, with the pending appointment of a judge to replace Joan Campbell in the 248th, I suppose we could just browse the names of Republican candidates who were rejected by the voters to determine who Gov. Goodhair will select.

Because the will of the people means nothing to him.

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

And what alternative would you propose?

Oh, Mark, Mark, Mark.

Democracy is a very messy business. And, no, electing judges by partisan election isn't the best idea in the world. But what are the alternatives?

Would you rather the governor appoint the judges? Then we'd be left with a bunch of political hacks and big-money donors presiding over trials across the state.

Then would we wait for judges to die or resign or would we have periodic retention elections? Just wait for the single-issue partisans to get involved in those elections.

Non-partisan elections? How are candidates going to raise enough money to make their names known to the public? Lots and lots of campaign contributions from law firms, bondsmen and companies who depend on our predilection to throw people in jail at an ever increasing rate.

Four years ago the voters of Harris County threw out most of the Republican judges and replaced them with Democratic judges. And, you know what, the new judges are just as bad and just as incompetent as the ones they replaced.

Mike Wilkinson, the visiting judge I wrote about yesterday, sat on the bench in the 179th District Court until the voters fired him and hired Randy Roll. Judge Roll has been antagonistic to the defense and has used his seat to bully defendants to give up their constitutional right to trial by jury. He has ordered defendants to be held without bail illegally. He has revoked bonds on defendants who violated no express provision of their bonds. And, come January 1, Judge Roll will be off the bench, to be replaced by Kristen Guiney. Ms. Guiney will take the bench because she is running with an R after her name. The public doesn't know who she is. The public doesn't care.

After the 2008 elections I spoke with a civil judge whose daughter was on my youth soccer team. She told me that she asked one of the criminal judges who lost how it felt. The ex-judge told her that she won her seat because she had an R after her name and she lost her seat because she had an R after her name. It was just a part of the game.

For the most part, the public doesn't give a fuck about who sits on the bench. Most of your friends and neighbors will never see the inside of a courtroom and don't really care what goes on inside. It's an abstraction to them. They will make completely uninformed decisions that will affect a bunch of folks they'll never meet.

But, as screwed up a system as that is, it beats the alternative. It is better to have our judges at least somewhat accountable to the public than completely aloof from it. As Mr. Bennett has pointed out in the past, the more local the government, the more power it has to screw up your life. Our state judges should be on a short leash.

As to the rest of Mr. Bennett's criticism, Judge Susan Brown of the 185th Judicial District Court chose Mr. Wilkinson to sit on her bench.

Will video kill our access to the courts?

The "open courts provision" of the Texas Constitution guarantees people in Texas access to the courts.

All courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law. - Texas Constitution, Art. 1 Sec. 13

In most courthouses in Texas, those who are accused of committing criminal acts are still brought before a judge in open court to enter their pleas. There is one exception, however.

If you are charged with a misdemeanor offense in Galveston County and you cannot post bond, your first court appearance will be on the misdemeanor jail docket at the Galveston County Jail. Every afternoon a fresh group of inmates are brought into a large room where they wait for their court-appointed attorneys to talk to them about their cases. In most instances a plea is negotiated -- but this is where the similarities end.

For the inmates on the misdemeanor jail docket are brought before a judge in a courtroom. The judge takes the plea from his chambers while the inmates stand before a video monitor in the county jail. A two-way camera, microphones and speakers connect everyone. Keep in mind, we're not talking about arraigning folks who were just arrested before a magistrate on a video monitor (which is not at all uncommon). We are talking about the actual disposition of a criminal case.

Is it really that big a deal, though? It is far more convenient to be able to sit down and talk to a client at the jail rather than squeezing through the benches in the courthouse. But is Galveston County violating their right to have their plea heard in open court? Do the inmates care?

I don't know. I understand why it's done like that on the island and there are some advantages - for both inmates and attorneys - in doing it this way. But I wonder if the practice is slowly eroding our access to the courthouse. Is the camel sticking his nose under the tent?

Debtor's prison, redux

Even though federal debtor's prisons were outlawed in 1833 and the Texas Constitution forbade them in the Lone Star State in 1836, they are making a comeback today.

County officials around the state are looking at ways to collect court-ordered fines and fees from parolees who have been released from prison.  Some parole officers are filing motions to revoke parole for those who are behind in their payments -- in other words, threatening to put them in prison because they don't have any money.

As a way of raising revenue, the Texas Department of Public Safety thought instituting surcharges on license renewals would be an excellent deterrent (punishment) for driving while intoxicated, without insurance or with too heavy a lead foot. The effect of the surcharge program, however, has been to create criminals out of those who can't afford to pay the king's ransom for the privilege to drive in Texas.

The DPS will hit you with a $1,000 a year surcharge for three years on your first conviction for driving while intoxicated - or else your license is suspended. If you are convicted of driving without insurance, you'll owe the DPS $250 a year for three years. Should you accumulate too many speeding tickets in a three-year period, be prepared to pony up at least $100. And if you can't afford these surcharges and you get caught driving on a suspended license (suspended for non-payment of surcharges) -- open up that wallet because you are on the hook for $250 a year for three years. You are also subject to being arrested and taken to jail for driving on that suspended license.

Worse yet, these surcharges don't even take into account the reinstatement fees for which you are responsible.

In addition to motorists arrested and jailed for not paying their surcharges, the State of Texas can also jail for you not paying your court-ordered child support. In the IV-D courts (child support enforcement courts), if you're behind you could get hit with a contempt order and be subject to jail time for not obeying the court's order. Of course since you're not making any money while in the cooler you're falling further and further behind and digging a hole from which you may very well never find your way out.

And, if that's not bad enough, piss someone off enough and you could find yourself facing a state jail felony for criminal nonsupport. At least there you have the defense that you couldn't afford the payments.

Duty and ethics

I ran across a very interesting column in this morning's Houston Chronicle penned by Rick Casey about the State of Texas' attempt to murder Mr. Delma Banks despite prosecutors having sat and kept their mouths shut while two witnesses for the state commit perjury on the stand.

Now, despite the US Supreme Court's decisions to send the case back for review and to vacate the death penalty, the State of Texas is back at it, sending an assistant Attorney General to New Orleans to argue that Mr. Banks is not entitled to the relief granted because his attorneys did not give proper notice of their intent to use a transcript of a coaching session with the prosecutor and one of the lying witnesses.

Nevermind that the prosecutors failed to disclose the existence of the transcript while Mr. Banks sat on Death Row - the state is seeking to reinstate the conviction on a technicality.  A technicality that wouldn't exist had the state done the right thing in the first place.

Every attorney licensed by the State of Texas pledged to follow the US Constitution, the Texas Constitution and The Texas Disciplinary Rules of Professional Conduct. 

Rule 3.09 defines the duties of a prosecutor.

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

I would pay close attention to 3.09(d) that requires a prosecutor to disclose ANY evidence that might tend to be exculpatory.  Based on the spirit of the rule, defending the State's handling of this matter is a violation of the disciplinary rules as such an argument condones the violation of Rule 3.09(d).  In other words, the Attorney General is asking one of his assistants to violate the oath she took on the day she was sworn in as an attorney.

Justice, Collin County style

In 1990, Charles Dean Hood was convicted for the murders of Ronald Williamson, his boss, and Tracie Wallace, Williamson's girlfriend. Hood's bloody fingerprints were found at the crime scene (on garbage bags and documents) and the two victims had been shot at close range.

It appeared that the trial would be a slam dunk conviction for Collin County DA Tom O'Connell who decided to try the case himself. Actually it would be more than a slam dunk.

The presiding judge of the 296th Judicial District Court, Verla Sue Holland, was involved in a long-running romantic relationship with O'Connell. Yet, despite the clear conflict of interest, neither disclosed their relationship to Mr. Hood or to his attorney, David Haynes.

Although rumors about the relationship ran rampant through the Collin County courthouse, Mr. Haynes didn't think the issue could be raised at trial absent proof.

Mr. Hood was scheduled to be murdered by the State of Texas on June 17, 2008 but prison officials aborted it when it became clear they could not carry out the sentence prior to midnight.

After securing an affidavit from a former prosecutor in the Collin County DA's Office acknowledging the relationship between O'Connell and Holland, Hood's attorneys filed an appeal alleging the affair prevented Mr. Hood from receiving a fair and impartial trial before Judge Holland.

The State of Texas stayed the execution and rescheduled it for September 10, 2008. At the same time, Mr. Hood's attorneys sought civil relief in the 199th Judicial District Court of Collin County. His attorneys asked Judge Robert Dry to determine whether the conduct of Holland and O'Connell during Hood's trial was ethical.

Judge Dry scheduled a hearing on the civil matter for September 12, 2008 -- too late to afford any relief to Mr. Hood.

To date, Judge Holland has refused to comment on the allegations she was sleeping with the prosecutor during Hood's trial. She said it would be "unethical" for her to comment on a pending case, even though the Texas Constitution says that the judiciary must avoid any appearance of impropriety and must hold itself to exacting standards in order to avoid a loss of public confidence.

The Collin County DA's office has also refused to comment on the allegations.

Judge Holland left her bench in Collin County and served on the Court of Criminal Appeals in the mid-1990's. Since then, Court of Criminal Appeals has refused to force Holland to answer any questions regarding the affair.

Although it was not Judge Holland who convicted (and condemned) Mr. Hood - that was the job of 12 citizens of Collin County, she ruled on motions, objections and proposed charges during the course of the trial.

To that end, the 500-member Association of Professional Responsibility Lawyers and dozens of legal ethicists have called Hood's conviction into question and 22 former federal and state judges from Texas and the rest of the country have called on Governor Perry to grant Mr. Hood a reprieve.

Charles Dean Hood may very well be guilty of the murders but there is this little notion of due process that the courts should (at the very least) pay attention to every now and then. This is one of those times.