Former judge sanctioned for jailing a rape victim

On December 8, 2014, Jenny Doe (her real name may be found in court records but I choose not to publish it), was called to testify in the rape trial of Keith Hendricks in the 176th District Court in Harris County. Mr. Hendricks was on trial for raping Jane Doe.

While on the stand testifying at trial, Ms. Doe had a mental breakdown (she had been diagnosed with bipolar disorder). Fearing that his witness wouldn't show up to testify again, the prosecutor, Nicolas Socias, asked the judge, Stacy Bond, to issue an attachment and to order Ms. Doe taken into custody.

The judge set her bond at $10,000. That's right, Jenny hadn't been charged with a crime yet she was being held behind bars because she couldn't post a $10,000 bond.

Ms. Doe was first taken to the hospital to be checked out -- she was then booked into the Harris County Jail. Making matters even worse, someone at the jail fucked up and entered that she was charged with felony sexual assault. Because no one at the jail knew she was being held as a witness, she was placed in the general population. While in jail she got into at least one fight with an inmate. She was later charged with assaulting a guard, though that case was later dismissed.

Jenny was not called back to the stand until January 11, 2015. Let that just sink in for a bit. Here we have the victim of a sexual assault who was taken into custody and held against her will for over a month because she had a mental breakdown on the stand. And even though she testified on the 11th, she was held for an additional three days before being released.

Texas law does permit the court to order a witness taken into custody if the state issuing the subpoena has reason to believe that a witness residing in the county is on the verge of moving out of the county or if an out-of-county witness failed to appear when subpoenaed.

Neither of those conditions were met in this case. Jenny resided outside Harris County and appeared without being subpoenaed. Mr. Socias might have been worried about her not coming back to testify after her breakdown -- but that didn't justify his request to have her attached. It certainly didn't warrant her being held in jail for over a month.

Now Stacy Bond, who is running for the bench in the 185th, has been sanctioned with a public admonition for violating the Code of Judicial Conduct.

Ms. Bond's excuse is she was mistaken in signing a badly worded application for a bench warrant. The application would have been filled out by the prosecutor, Mr. Socias.

You would think that the least the judge could have done was read the application before signing off on it. Actually you would think the judge might have consulted Section 24 of the Texas Code of Criminal Procedure to see whether the action was warranted. At the very least you would have expected a judge to show just the slightest bit of compassion to a witness who was having a very bad day. But, hell, once you decide to treat those accused of crime as garbage, it's not a far walk to treat everyone like that.

Ms. Bond is running as a Republican in the upcoming election. I'm sure that many Republican voters in the suburbs don't give a flying fuck what Ms. Bond did on the bench in the past. The only criterion for their vote is that the candidate have an "R" after their name.

This is the problem with electing judges. No one outside the courthouse knows who the candidates are. No one outside the courthouse has any idea what type of attorney or judge a candidate is. No one outside the courthouse knows what goes on behind the scenes. And this is why we end up with some judges in Texas who aren't capable of walking and chewing gum at the same time.

(Yes, Galveston County, I'm talking about the mindless wingnuts on the mainland who voted straight-ticket Republican and ushered in the strange world of Christopher Dupuy, the single most unqualified person I've ever seen on the bench.)

Of course appointing judges brings about an entirely different set of problems that can be just as bad as electing them.

Ms. Bond doesn't deserve to sit on the bench anymore. I just hope this public reprimand resonates with voters in the 'burbs when they go to cast their ballots in November.

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.

Civil rules of discovery can help you in a criminal case

Texas Rule of Civil Procedure 176. "Subpoenas"

176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:

a. state the style of the suit and its cause number;

b. state the court in which the suit is pending;

c. state the date on which the subpoena is issued;

d. identify the person to whom the subpoena is directed;

e. state the time, place and nature of the action required by the person to whom the subpoena is directed;

f. identify the part at whose instance the subpoena is issued, and the party's attorney of record, if any;

g. state the text of Rule 176.8(a); and

h. be signed by the person issuing the subpoena.

176.3(b) A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

Texas Code of Criminal Procedure, Article 39.14. "Discovery"

39.14(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies...

*   *   *   *   *

Tired of hearing the prosecutor tell you he can't produce the documents you requested because they aren't in his possession or under his control or custody? Then take advantage of the rules of civil procedure.

The Texas Rules of Civil Procedure provide for abundant discovery as the civil courts prefer not to have to deal with "trial by ambush." The rules provide tools for both plaintiffs and defendants to see all of the documents and evidence that will be presented at trial with the hope that this discovery will lead the parties to settle their disputes without the need for a lengthy trial.

These rules also offer the opportunity for criminal defense lawyers to "go in the back door" and obtain necessary evidence to defend their clients. Prosecutor tells you he doesn't have the sheriff department's inventory guidelines? Issue a subpoena to the sheriff's department for those procedures. Prosecutor won't produce a video tape or audio tape because he says he doesn't have it? Subpoena it from the police or sheriff's department.

In Texas you don't even have to go through the court to issue the subpoena. You can draft on your own and have your investigator serve it to the proper custodian of records. Sure, the prosecutor may get perturbed because of the route you're taking to get the records you need, but there's nothing he can do about it because the District Attorney is not a party to the subpoena. If the agency on which you served it wishes to fight it, they may -- but they must show the court why the requested documents aren't relevant to the case.

Down in Galveston County, the district attorney's office seems to want to have it both ways. They will tell you they don't have possession or custody of the documents you request when it suits them and, if you try to subpoena them, they will tell you that you can't have them. Unfortunately for the district attorney, it doesn't work that way. You either have possession, custody or control of the documents or you don't.  

You can also take advantage of your state's Open Records Act. Prosecutor tells you he doesn't have the arresting officer's civil service file? Issue an open records request to the law enforcement agency. Prosecutor says he can't give you any documents related to the warranty on the state's breath machine? Issue an open records request to the agency in charge of maintaining the machine.

When gathering evidence in a criminal case, be creative in your approach and don't forget that the rules of civil procedure may give you an additional tool in putting your case together.