On picking your fights

I was in municipal court for a client fighting a traffic ticket in a Houston suburb last Thursday. The court wants defendants in the courtroom to answer an 8:00 a.m. docket call on trial settings. They also want attorneys to call in if they are going to be running more than a few minutes late.

There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.

Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.

In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.

The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.

The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.

The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.

Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.

Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.

My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to a black-robed prosecutor judge but that this definitely wasn't it.

The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.

As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.

The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.

Outside the box and over the line

Chapter 45 of the Texas Code of Criminal Procedure lays out the procedural rules for the handling of Class C misdemeanors in municipal and justice courts. A defendant may appeal an adverse verdict in justice court or in a municipal court that is not a court of record simply by filing an appeal bond with the trial court.

Provided the appeal bond is posted no more than ten days after the judgment is entered, the appeal is perfected and the case goes up to the county court for a trial de novo. In other words, the appeal is treated as a brand new case.

In Texas the holder of a commercial driver's license isn't eligible for dismissal at the municipal or justice court level through the completion of a driver safety course or through a successful deferred probation - even if he was driving his private car at the time he was stopped and cited. However, there is no apparent prohibition on the county courts when handling an appeal. Now, federal regulations seems to prohibit the so-called "masking" of citations issued to CDL holders and the County Court judge up there refuses to allow a CDL holder to have his citation dismissed through deferred probation.

As an aside, I would argue that the rules only prevent the masking of a conviction by deferring imposition of sentence or allowing the driver to enter into a diversion program. If there is no conviction, however, there is nothing to mask.

Now why, might you ask, am I writing about appeals from traffic tickets? And, if you are asking that - it's a good question.

This morning when I left the courthouse I ran into a colleague of mine who is a municipal court judge in a couple of towns on the outskirts of Houston. He's also a defense attorney with whom I worked on a theft case before. I asked him how life on the bench was treating him and we got to talking about the world of Class C misdemeanors.

We both agreed that if you have a case with a CDL holder in justice or municipal court that there is no reason not to try it. The worst possible outcome is you lose and appeal it up and see it magically disappear at the county court level. He said got so tired of people pleading no contest at the municipal court level and immediately filing an appeal bond that he changed the plea papers in his courtroom.

Now in at least one of the courts in which he sits whenever someone not eligible for dismissal through a driver safety class or deferred probation pleads no contest, the paperwork he signs includes a waiver of his right to appeal.

Hmmm. I don't think we get to go there, my friend. Article 45.042 states that an appeal from a municipal court (that's not a court of record) or a justice court are to be heard de novo by the county court. Article 45.0425 states that to appeal an adverse verdict out of a municipal court (that's not a court of record) or justice court, the defendant must post an appeal bond in an amount not less than twice the fine. Finally, article 42.0426 states that the appeal bond must be filed not less than ten days after the date the judgment was entered and that if it is, and the bond meets the requirements of the code, the appeal is perfected and the case is sent up to the county court.

There is nothing in the code that says you can't appeal an adverse judgment after pleading no contest. There is nothing in the code that says you have to get the judge's permission in order to file an appeal bond. There is nothing, in fact, that gives a judge any discretion in the matter. If the bond is filed and is proper - the case goes up. Otherwise, the judgment stands.

The judge has overstepped his bounds and imposed a restriction on those appearing in his court that is not allowed under Chapter 45 of the Code of Criminal Procedure. His new policy deprives folks of their statutory right to appeal an adverse judgment. His pronouncement violates the separation of powers in that he is usurping the role of the legislature.

I'm not going to go into my rant about petty tyrants run amok because he is one of the few municipal court judges who doesn't act like a cash register clerk for the city. He tries to do the right thing when he's sitting on the bench. But this time, he got it wrong.

The wisdom of a seven-year-old

Yesterday my oldest daughter was off from school because of Columbus Day. Now, I've never understood why Columbus Day was even a holiday in the first place. Maybe it's because I'm from the South. Or maybe it's because I'm Irish. I don't know. It never seemed holiday material in the first place.

I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.

But I digress...

Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.

I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.

My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.

Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.

We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.

As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.

As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.

My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).

Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.

If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.

Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.

You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.

Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.

Saddle up, it's time to ride

Charlie Dunn, he's the one to see
Charlie done the boots that are on my feet
It makes Charlie real pleased to see me walkin' with ease
Charlie Dunn, he's the one to see
"Charlie Dunn" -- Jerry Jeff Walker

All is right in the world today. Judge Kevin Madison announced he rescinded the Lakeway Municipal Court's ban on cowboy boots.

"I guess the adage 'Don't Mess with Texas' should be changed to 'Don't Mess with Texans' Cowboy Boots!' " -- Hon. Kevin Madison.

Now if someone can just tell me what sartorial means.

Giving it the boot

Well, I decided that, I'd get my cowboy hat
and go down to Marble Arch Station.
'Cause when a Texan fancies, he'll take his chances,  
and chances will be takin, now that's for sure.  
And them Limey eyes, they were eyein' a prize,  
that some people call manly footwear.  
And they said you're from down South,  
and when you open your mouth,  
you always seem to put your foot there.

"London Homesick Blues" -- Gary P. Nunn

There's a showdown a-brewing up over in Lakeway (a resort community near Austin) over a municipal judge's aspirations to be the legal community's Jerry Blackwell. The Honorable Kevin Madison presides over Lakeway's Municipal Court of Record No. One and has decreed that it is inappropriate for lawyers to wear cowboy boots in the courtroom.

The court also requires all attorneys practicing in the court to sign a form indicating that they have read the local rules and promising to abide by them.

What was that, you say? You heard me right, a judge in a Texas court has banned the wearing of cowboy boots. I never knew it was optional. If I remember correctly when I took the oath to get my law license, I think I swore at some point to never walk into a Texas courtroom NOT wearing boots. I'll need to pull the oath out from the back of my license to verify that -- but I'm pretty certain it says something like that.

"Counsel shall be dressed appropriately while in attendance of the Court, which means a coat and tie with dress slacks, socks, and dress shoes for men and dress, blouse and skirt with hosiery, or business dress slacks and dress shoes for women. No blue jeans or cowboy boots will be worn by counsel." -- Lakeway Municipal Court Local Rule No. 5.

How on earth can a Texas lawyer dress "appropriately" without the requisite manly footwear?

Apparently the judge has since backed off on holding a lawyer in contempt for wearing boots into his courtroom -- but, as if often the case with anyone attached to the government, the "new" rule is worse than the old one. The judge told a report from the Austin American-Statesman that it was okay to wear boots in the courtroom as long as they were "nice" boots.

And who's going to make that decision? Instead of a black and white rule (no matter how un-Texan it may be) the judge has decided to make himself the arbiter of taste in the Lakeway Municipal Court.

See also:


"Well-heeled Lakeway should give court rule the boot" Austin American-Statesman, Sept. 18, 2010.
"Lawyers balk at Lakeway court ban on cowboy boots" Austin American-Statesman, Sept. 19, 2010.

Speaking out

According to Houston City Attorney David Feldman, the impetus behind the new HPD policy forbidding officers to speak to criminal defense attorneys without the prosecutor's permission was an overtime study that focused on the municipal courts. Mr. Feldman stated this afternoon that when the city began reviewing overtime records the review turned up some alleged improprieties in the municipal courts between officers and defense attorneys. He defended the new policy claiming it was a matter of "logistics." He said that what was happening was not in the best interests of the citizens of Houston.

I think what Mr. Feldman meant was when officers decide they can't remember the details of a traffic stop it puts a monkey wrench in the ATM machine known as the City of Houston Municipal Courthouse.

Robert Fickman, Mark Bennett and Nicole DeBorde (current president of HCCLA) spoke out this afternoon at the weekly city council meeting and were joined by about 50 of their colleagues. (Click here to see the video of today's meeting.)

Councilwoman Jolanda Jones, a criminal defense attorney, understood the larger issues involved and told Mr. Feldman that "the Constitution trumps overtime."

So there you have it. A policy that impedes due process and hampers a defense attorney's ability to defend his client with jail or prison time hanging over his head, was drawn up because some officers were too chummy with defense attorneys over at the Municipal Courthouse. And the city attorney had no problem with it.

Did they hire an inefficiency expert?

Incompetence, thy name is the City of Houston Municipal Court.

I had two cases I needed to place on this afternoon's Annex docket at 3pm. So I amble into the room with the attorney windows about 2:45pm - after I returned from Conroe. Forty-five minutes later I was still sitting there waiting...

And why was I still waiting? Because both of the attorney windows were being used by attorneys and clerks attempting to post bonds. For those of you who don't understand the problem, while it is painfully slow enough just resetting cases (and why does it take longer and is more of a hassle than resetting a felony case?), multiply that by, like, infinity and you'll have an idea of how long it takes to post a bond.

Despite the number of attorneys who were waiting to reset cases, no one brought in a supervisor or made any kind of arrangements to aid us in resetting our cases as we sat, and sat, and sat...

And, to top it off, when I finally gave up and left I asked the man out front wearing a badge that identified him as an employee of the Municipal Court who was in charge of this fiasco. His response? Call 311.

I am convinced that the entire purpose of designing such an inefficient system is to discourage people from contesting their tickets.

Priorities

I had a bit of a scheduling conflict this morning. On the one hand I had a seventeen-year-old kid in custody in Galveston County with an appearance in felony court. On the other hand I had a trial setting for a traffic ticket case in Houston Municipal Court.

When it became apparent we weren't going to work out a deal on the felony case I approached Judge Timberlake in Houston Municipal Court about a continuance on the traffic case. She angrily told me that her trial setting took precedence over an inmate's felony appearance in Galveston and denied my request and threatened to report me to the State Bar if I didn't appear in her court at 8:00 am this morning.

Now let's get real, which case is more important? Furthermore, for anyone who hasn't practiced in the municipal courthouse, each court tries (at most) one case a day and there was little danger of my little speeder going to trial this afternoon.

For the record, I appeared in felony court in Galveston this morning. I'd much rather have a judge complaining about my not appearing in a ticket case than have a client in custody complaining that I didn't appear on his case.

Next we'll tack on a portion of the electric bill as a court cost...

I was down in Missouri City Municipal Court this morning with a couple of traffic scofflaws. The judge came out and explained to those gathered in the courtroom what was going on. He informed those in the gallery that today was set for pre-trial conferences and that they would try to work out as many cases as possible but, if for one reason or another a case couldn't be worked out, it would be set for trial. Fair enough, nothing unusual in any of those remarks.

Next he told the court that in a jury trial on a traffic case the jury would decide two things: (1) whether the motorist was or was not guilty and (2) the fine to be assessed. Then he informed those in attendance that should they select to go to trial and they lost, the court costs they would be assessed would include the overtime pay for any officers subpoenaed to appear as well as the jury fee.

It seems as if Missouri City has finally found a stick to beat folks into submission and discourage them from exercising their constitutional right to a trial by jury in any criminal matter. The Sixth Amendment affords criminal defendants compulsory process in any criminal proceeding and the Texas Code of Criminal Procedure outlines the manner in which a defendant may exercise that right.

If Missouri City really wants to prevent people from exercising their rights, maybe the city counsel should consider making all traffic offenses administrative matters. That way city prosecutors wouldn't have to worry about proving their cases beyond a reasonable doubt -- a hearing officer could be appointed to rubber-stamp the tickets and anyone wishing to challenge the word of the city lackey would be forced to appeal the decision to the municipal court where the city's burden would be a preponderance of the evidence.

Once again our rights are slowly eroding.

The honey hole

If you believe that the Houston Police Department issues speeding tickets in order to make the roads in the Bayou City safer, you're in for a surprise. KHOU-TV conducted an investigation of 500,000 speeding tickets issued by HPD as well as 50,000 accidents related to speeding between 2006 and 2008, and came to a different conclusion.

In fiscal year 2008, local police wrote $55 million worth of speeding tickets, including delinquent fees.

While public officials claim it’s all about public safety and not the money, the 11 News Defenders discovered police often return to the same “honey holes” as one veteran Houston Police Officer described it. That is, writing tickets in places where it’s easy to write them, rather than targeting unsafe roadways with a history of speeding-related accidents.

11 News analyzed more than 500,000 speeding tickets and more than 50,000 speeding-related crashes from 2006 through 2008. Of the top 10 ticket-writing locations on Houston streets, four were of the “honey hole” variety. These included setting up at the bottom of hills, bridges and overpasses, where even well-intended drivers can let their car’s momentum get them in trouble.

For anyone who's ever practiced, or spent a lot of time, in the municipal courthouse, it's readily apparent what's really going on (See "The tail wagging the dog"). The city is on a money grab, pure and simple. There's a reason why after Hurricane Ike, while the municipal courts were closed, the courthouse was open for people wanting to come in and pay their tickets.

The tail wagging the dog

In most courts the prosecutor negotiates pleas with defense attorneys and unrepresented citizens. The City of Houston Municipal Court is not most courts, however. Behind the walls of their fortress (designed in that lovely Soviet-era government building style), the city prosecutors turn over a good deal of the negotiating to the officers who wrote the tickets.

It's one thing to consult with a complaining witness in a case to find out whether he or she is comfortable with a given outcome, it is quite another to hand the negotiating power over to a person with a personal stake in the outcome of the case. Wouldn't that constitute the unauthorized practice of law, a Class A misdemeanor in the State of Texas?

Let's see, the prosecutor's job is to represent the city against citizens accused of committing traffic offenses. A criminal defense attorney's job is to represent the citizen against the oppressive power of the state. It is verboten for a non-attorney to represent any citizen in court. Allowing that to happen would be condoning the unauthorized practice of law. But the courts allow police officers to negotiate on behalf of the city with defense attorneys in the courtroom -- in front of the judge. How is this practice any different from a non-attorney representing a citizen? 

In fact, Rule 5.05 the Texas Disciplinary Rules of Professional Conduct states that a "lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The rule does not, however, define unauthorized practice of law. An attorney does not violate the rule by delegating duties to a paraprofessional as long as the attorney supervises the delegated work and maintains responsibility for it. Is handing over the reins the same as delegating? I think not.

So why is this allowed to happen at the fortress on Lubbock Street? Could it be that the municipal court is a cash machine for the City of Houston? Could it be that municipal court judges hold their benches as long as the revenue pours in? Could it be because the prosecutors are made up of timid attorneys afraid of their own shadows and "volunteers" from the Big Law firms downtown? Could it be because everyone is afraid that the police will issue fewer citations if their precious ATM (overtime) is affected?

Here comes word that the police department is reviewing overtime records of "several officers." Predictably enough, the police union is up in arms that someone is looking into their little operation.

This is from a database in The Houston Chronicle listing the salaries of all Harris County public employees for 2007. It is Exhibit A in my diatribe:

Name	MATTHEW LLOYD DAVIS
Title	POLICE OFFICER
Agency	CITY OF HOUSTON
Department	POLICE
Base	$60,596
Overtime	$59,443
Car Allowance	$0
Incentive	$0
Total Pay	$120,039

Officer M.L. Davis, as anyone who has every practiced in the municipal courts knows, is the single biggest beneficiary of overtime among police officers who issue traffic tickets. I'm not certain, but I think if I looked up his residence I would find out that he calls 1400 Lubbock Street home.