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State Commission on Judicial Conduct

Paxton wants magistrates’ lawsuit tossed

We all want things, Kenny.

Best mugshot ever

The state attorney general Monday asked a judge to dismiss a lawsuit by three Harris County hearing officers who are fighting sanctions by Texas’ judicial ethics commission earlier this year over unfair bail practices.

Texas Attorney General Ken Paxton also asked that the case brought by three admonished magistrates be transferred from Harris County, where the judges sit, to Travis County, where the State Commission on Judicial Conduct is based. Paxton also asserts that the state watchdog agency has “sovereign immunity” from being sued.

The lawsuit, filed in May by three local magistrates, challenges the commission’s finding that they violated the state code of conduct for judges during probable cause hearings for newly arrested defendants. The hearing officers, Eric Hagstette, Jill Wallace and Joseph Licata III, initially challenged the commission’s findings through a more straightforward appeal to the state’s Special Court of Review. However, they later withdrew that appeal and sued the commission to have their records be cleared of the findings of misconduct.

Mike Stafford, who is representing the magistrates free of charge in this lawsuit, said the sanctions should be eliminated because the watchdog commission surpassed its authority in telling magistrates they can’t refer bond matters to the judges assigned to the cases.

“This case presents an important and rare opportunity to affirm that the Commission may not interpret Texas law and to ensure that the Commission is not allowed to exceed its mandate,” Stafford argued in district court filings.

See here for the background. I presume the reason to ask for a transfer as well as a dismissal is that if you don’t get the one you might at least get the other. Beyond that, I have no particular insights so I’ll just note this for the record and move on.

Harris County hearing officers sue to overturn their conduct sanction

An interesting twist.

Three Harris County hearing officers have sued the State Commission on Judicial Conduct in an attempt to overturn their discipline for denying personal recognizance bonds to misdemeanor defendants, contending that the agency overstepped its authority by interpreting law in meting out punishment.

Eric Hagstette, Joseph Licata III and Jill Wallace are Harris County criminal law hearing officers who assist elected state district judges with initial criminal court hearings that advise criminal defendants of their rights, set money bail and determine whether the accused are eligible for release on a personal bond.

All three of the hearing officers were issued public admonitions by the Judicial Conduct Commission in January after it found that they failed to comply with the law in strictly following directives from state district judges to refrain from issuing personal bonds to defendants.

[…]

The commission noted that it gave weight to the hearing officers’ arguments that they feared for their jobs if they didn’t obey orders from state district judges to deny personal bonds to defendants. Nevertheless, the commission determined the hearing officers had violated their constitutional and statutory obligations to consider all legally available bonds when they denied personal recognizance bonds to defendants.

In a recent petition filed in a Harris County state district court, the hearing officers argue that the commission exceeded its mandate in issuing the disciplinary actions based on its own interpretation of the law, rather than on well-settled law.

“All courts to have considered this question have agreed: The commission is not permitted to interpret the law and then find a violation. Yet that is precisely what the commission has done here,” the hearing officers’ petition alleges. “It has been nearly thirty years since the commission’s authority has been examined in Texas; this case presents an important and rare opportunity to reaffirm that the commission may not interpret Texas law and to ensure that the Commission is not allowed to exceed its mandate.”

Sen. John Whitmire filed the complaint that led to the State Commission on Judicial Conduct disciplining the hearing officers. I didn’t note when that decision was handed down, but a month after that we had testimony that the misdemeanor court judges violated state judicial conduct rules themselves by ordering the magistrates to deny bail. If this action were about setting that record straight I’d be firmly in the corner of the magistrates, but this looks to be about the role of the Commission, which interests me a lot less. Nonetheless, I suspect there’s some potential for more dirty laundry to be aired, and I am here for that.

JP Hilary Green resigns

Wise decision.

The Harris County justice of the peace accused of paying prostitutes for sex, abusing drugs while on the bench and sexting a bailiff officially resigned this week – although her attorney says it has nothing to do with the claims against her.

Hilary Green had already been temporarily suspended by the Texas Supreme Court and was headed for trial next month to determine her judicial future. But on Tuesday – even as lawyers worked to prepare for the upcoming Austin court date – the long-time Precinct 7 jurist sent a letter to Harris County Judge Ed Emmett, announcing her decision to leave the bench.

“Effective immediately, please allow this letter to serve as my formal resignation from my position as Justice of the Peace, Precinct 7, Place 1,” Green wrote. “Due to the unexpected death of my father and my mother’s newly diagnosed illness, it is important for me to focus all my attention on my family.”

Green’s attorney, Chip Babcock, emphasized that his client’s departure was motivated solely by personal considerations.

“It is totally unrelated to the charges which she continues to deny and contest,” he told the Chronicle Thursday. The pending proceedings to unseat her – and lack of income, given her suspension without pay – took a toll on her, according to Babcock.

[…]

In light of Green’s resignation, county commissioners are expected to appoint a replacement who will serve until November 2018. Voters in the November election will then decide on her successor. Her term would have expired in 2020.

The political parties will in the coming months determine which candidates will be on the ballot.

Precinct 1 Commissioner Rodney Ellis will likely select the interim appointment.

“Commissioner Rodney Ellis will consult with community leaders and legal experts to select a qualified candidate,” an Ellis spokesman said. “He plans to have a candidate to submit to Commissioners Court for approval on April 10.”

See here and here for the background. I’m mostly interested in what happens next, as I don’t think we’ve seen a situation exactly like this recently. Robert Eckels, Paul Bettencourt, Charles Bacarisse, Jerry Eversole, and most recently Adrian Garcia all resigned from county offices, but they did so in odd-numbered years, meaning there was plenty of time for people to file and run in the primaries for those offices. Jack Abercia already had a slate of primary opponents when he announced his intent to not run for re-election, prior to his tour of the criminal justice system. El Franco Lee died in January of 2016, a year in which he was on the ballot and was the only person who had filed for his position. Due to the timing of that, he remained on the primary ballot, then we went through that process to replace him as the nominee via the precinct chair process.

Hilary Green was not scheduled to be on the ballot this year; she was elected to a four-year term in 2016. The primaries are over, so that’s not an option. I suppose we could have a special election as we would for a legislator who left office mid-term, but the phrasing of that “political parties will…determine which candidates will be on the ballot” sentence suggests we’re in for another precinct chair selection process. I wanted to be sure about that, so off to the Texas Statutes website I go. First, in the case of the interim appointment, Section 28 of the Texas Constitution says:

Sec. 28. VACANCY IN JUDICIAL OFFICE. (a) A vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or the District Courts shall be filled by the Governor until the next succeeding General Election for state officers, and at that election the voters shall fill the vacancy for the unexpired term.

(b) A vacancy in the office of County Judge or Justice of the Peace shall be filled by the Commissioners Court until the next succeeding General Election.

Clear enough. But how is that next succeeding General Election to be conducted? I turn to Election Code, Title 12 “Elections to fill vacancy in office”, Chapter 202 “Vacancy in office of state or county government”:

Sec. 202.001. APPLICABILITY OF CHAPTER. This chapter applies to elective offices of the state and county governments except the offices of state senator and state representative.

Sec. 202.002. VACANCY FILLED AT GENERAL ELECTION. (a) If a vacancy occurs on or before the 74th day before the general election for state and county officers held in the next-to-last even-numbered year of a term of office, the remainder of the unexpired term shall be filled at the next general election for state and county officers, as provided by this chapter.

(b) If a vacancy occurs after the 74th day before a general election day, an election for the unexpired term may not be held at that general election. The appointment to fill the vacancy continues until the next succeeding general election and until a successor has been elected and has qualified for the office.

[…]

Sec. 202.004. NOMINATION BY PRIMARY ELECTION. (a) A political party’s nominee for an unexpired term must be nominated by primary election if:

(1) the political party is making nominations by primary election for the general election in which the vacancy is to be filled; and

(2) the vacancy occurs on or before the fifth day before the date of the regular deadline for candidates to file applications for a place on the general primary ballot.

[…]

Sec. 202.006. NOMINATION BY EXECUTIVE COMMITTEE. (a) A political party’s state, district, county, or precinct executive committee, as appropriate for the particular office, may nominate a candidate for the unexpired term if:

(1) in the case of a party holding a primary election, the vacancy occurs after the fifth day before the date of the regular deadline for candidates to file applications for a place on the ballot for the general primary election; or

(2) in the case of a party nominating by convention, the vacancy occurs after the fourth day before the date the convention having the power to make a nomination for the office convenes.

(b) The nominating procedure for an unexpired term under this section is the same as that provided by Subchapter B, Chapter 145, for filling a vacancy in a party’s nomination, to the extent that it can be made applicable.

Chapter 145 was the governing law for the process used to fill El Franco Lee’s spot on the ballot, and then subsequently those of Rodney Ellis and Borris Miles. Here, Section 202.004 cannot apply, as the primary has already taken place, so Section 202.006 is the relevant code. And so we get to experience another precinct chair convention to pick a nominee – unlike 2016, when no Republican had filed for Commissioners Court Precinct 1, the GOP will get to name a candidate as well. Well, someone will get to experience that. I am thankfully in JP Precinct 1, not JP Precinct 7, so I’m spared it this time. I’ll follow it, and time permitting I’ll be there when it happens to observe, but I get to be a bystander this time, and that’s fine by me. Godspeed to those of you who get to make the call.

ACLU goes after Judge McSpadden

As well they should.

The ACLU of Texas is asking Harris County’s longest serving felony court judge to resign after making a statement to the Houston Chronicle on his views about black men’s attitudes toward the criminal justice system.

The civil rights group also is asking that the judge be automatically recused from cases involving African-American defendants until an investigation into potential racial bias occurs, according to a news release Tuesday.

[…]

“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” said Terri Burke, executive director of the ACLU of Texas. “When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can’t be trusted, it’s time to take action. This kind of flagrant racism has no place in our justice system.”

She said, “The Texas Commission on Judicial Conduct needs to take the first step toward rooting it out, and Judge McSpadden should voluntarily step down.”

McSpadden could not be immediately respond to a request for comment Tuesday. His court staff said he was on the bench hearing cases.

The civil rights organization said McSpadden’s comments violate the Texas Code of Judicial Conduct and could merit removal from office.

“Judge McSpadden’s remarks are inexcusable, but not at all surprising for those of us who know the justice system well,” said former death row inmate Anthony Graves, who runs a criminal justice initiative for the ACLU of Texas.

See here for the background. Perhaps there’s some context Judge McSpadden can add to his comments, or perhaps he could just admit that was a dumb and offensive thing to say and offer an apology for it. People may or may not accept either action, but at least it would be something. In the absence of any such followup, one is left to conclude that he has nothing further to say on the matter. Whatever one may have thought of Judge McSpadden before now, that’s not a good look. And as a reminder, Judge McSpadden is up for election this fall. For all the griping some people do about partisan judicial elections, they do at least give the voters the chance to correct errors on the bench.

On a side note, two of Judge McSpadden’s colleagues on the misdemeanor courts are again urging the county to settle the bail lawsuit.

“The most conservative appellate court in this country, strict constitutional conservatives, have said that this practice that we are doing is unconstitutional,” said Judge Darrell Jordan, one of the defendants in the lawsuit.

Jordan told County Judge Ed Emmett and county commissioners that fighting the suit had already cost Harris County $6 million in legal fees. “I’m asking that you all cut this last check, fire these $6 million lawyers, let the County Attorney’s office come, and we all sit down and work out a settlement.”

Jordan’s co-defendant, Judge Mike Fields, urged Emmett and the commissioners to “use every tool in your arsenal to help us settle this lawsuit.” Fields added, “Our county needs to settle this for financial reasons, and our public needs it settled for reasons of good governance and confidence in the criminal justice system.”

Judge Emmett said he’s willing to settle on the basis of the 5th Circuit’s ruling, but said plaintiffs haven’t responded to offers to talk.

Judge Jordan, the lone Democrat on these benches, and Judge Fields have been the lone voices from those courts for sanity. Unfortunately, their colleagues remain uninterested in such matters as the cost of the litigation and the fact that they’ve lost at every step and looked bad in doing so. And they’re all up for election this November. See my comments above on that.

More judges caught up in the bail scandal

More judges to vote out.

For more than a decade, most of Harris County’s felony court judges directed magistrates to deny no-cash bail to all newly arrested defendants, in apparent violation of state judicial conduct rules, according to internal documents obtained by the Houston Chronicle.

The documents include charts with explicit court-by-court instructions from 31 district judges to reject all requests for no-cash bonds when defendants made initial appearances in court.

Records and testimony show that misdemeanor judges also routinely told magistrates for years to decline personal bonds, which allow a person to gain pre-trial release from jail without posting cash bail.

The previously undisclosed bail and bond instructions, which surfaced during disciplinary hearings against three Harris County magistrates, appear to corroborate longstanding complaints from criminal justice activists that the county’s bail system deprived defendants of a fair chance at pre-trial liberty.

[…]

Among those listed in the documents with no-bond policies are former judges Ryan Patrick, now the U.S. Attorney for the Southern District of Texas; former Harris County District Attorney Mike Anderson, now deceased, and his wife, Devon, who succeeded him in office after his death; and state Sen. Joan Huffman.

State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn’t trust the lower-level jurists not to make errors.

“Almost everybody we see here has been tainted in some way before we see them,” he said. “They’re not good risks.”

“The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents,” he said. “Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man … They teach contempt for the police, for the whole justice system.”

Please, Judge McSpadden, tell us how you really feel. You all know how I feel, so I’m going to outsource this one to Scott Henson, whose continuation after the ellipses is addressed specifically to McSpadden:

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County’s magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn’t a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren’t too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate’s disciplinary case flat-out contradicted those made in her court.

[…]

Let’s be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they’re being advised by anybody.

It wasn’t Black Lives Matter or defendants’ families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

Vote ’em out. There’s never been a better time.

Judicial Conduct commission suspends JP Hilary Green

Bam!

The Texas Supreme Court on Friday issued an order to suspend Harris County Justice of the Peace Hilary Green from office immediately based on allegations that Green illegally abused prescription drugs, sent sexually explicit texts to a bailiff while on the bench and paid for sex.

It’s the first time any Texas judge has received a temporary suspension in at least a decade in a contested matter, the commission says.

The state supreme court had been asked to take the unusual emergency action by the State Commission on Judicial Conduct, which in May presented a 316-page document in support of an immediate suspension. That document summarized evidence it had collected in its own investigations of previously secret complaints made against Green from 2012 to 2015.

The commission alleged that in its own closed proceedings, Green already had admitted to many allegations against her, including illegally obtaining prescription drugs and using marijuana and Ecstasy while she was presiding over low-level drug possession cases involving juveniles in her south Houston courtroom.

One of the most serious allegations, the commission says, is that Green engaged her “assigned bailiff in an effort to illegally obtain prescription drugs.”

The commission argued that the evidence — and Green’s own admissions — more than justified Green’s immediate removal from her post as a jurist for Harris County Precinct 7, Place 1 while the state watchdog agency prepared for a longer civil trial required under Texas law to remove Green — or any judge — from elected office.

“Judge Green’s outright betrayal of the public’s trust warrants her immediate suspension pending formal proceedings,” the commission had argued.

Green’s attorney, Chip Babcock, argued in a response to the supreme court that voters themselves had a chance to review and “forgive” many of the commission’s allegations, some of which were published in Houston Chronicle stories, before they chose to re-elect Green in 2017.

See here for the background, with the warning that the more you read the more you will want to take a shower afterwards. While a lot of this information was known before the 2016 primary, I’d argue that most, though not all, of it was allegations of behavior that was merely tawdry rather than illegal. As such, I disagree with attorney Babcock that the voters had a chance to “review and forgive” the record. But even if one believes that the voters were sufficiently informed, I don’t see how that mitigates against this suspension or the potential subsequent removal from office. Elections have consequences, but so does criminal behavior. If the Commission votes to remove Judge Green, she can appeal as the process allows, but appealing to the voters as a defense will fall flat to me.

Judicial Conduct commission seeks suspension of JP Hilary Green

Holy moley.

In an explosive and rare move, Texas judicial authorities on Wednesday asked the Texas Supreme Court to suspend a Harris County justice of the peace accused of paying prostitutes for sex, misusing illegal drugs and ruling unethically in favor of a convicted con man.

The sordid list of accusations against Judge Hilary Green, Justice of the Peace in Houston’s 7th Precinct, was contained in a 316-page court filing by the State Commission on Judicial Conduct to the state’s highest court.

The document describes four separate judicial misconduct complaints against Green made between 2012 and 2016 that were previously not released under commission rules.

In her response to the commission, Green admitted to many of the allegations, including illegally obtaining prescription drugs and using marijuana and ecstasy at the same time she was presiding over low-level drug possession cases involving minors in her court, the records show. She also admitted to sexting a bailiff while on the bench.

“Judge Green’s outright betrayal of the public’s trust warrants her immediate suspension pending formal proceedings,” the filing says.

The Texas Supreme Court has not yet taken action on the suspension request and there is no deadline for it to rule.

The commission filing confirms that the latest misconduct complaint against Green arrived in 2016 from a man who Green has admitted was her extramarital lover, Claude Barnes. Other allegations were made by Green’s ex-husband, former Houston Controller Ronald Green, as part of their divorce.

Green has not responded to the commission’s request she be suspended. But her attorney, Chip Babcock, said he plans to argue that Green cannot be removed from office for alleged misconduct that occurred prior to November 2016, when she was re-elected to office. He argues that her re-election occurred after most of the allegations against her were made public in articles in the Houston Chronicle, or by her opponents during the campaign.

In support of his argument, Babcock cited a Texas state law that says “an officer may not be removed … for an act the officer committed before election to office.”

Others have interpreted that statute to mean before a public official initially took office, which in Green’s case was in 2007.

But Babcock emphasized in an interview that allegations about Green’s illegal drug use and sexual misconduct came to light in 2015 and 2016 from “her ex-husband and an admittedly bitter and angry former companion.” Babcock said that during Green’s 2016 campaign, the bulk of the allegations against her “were aired publicly and after they were aired publicly, Judge Green ran in a contested Democratic Primary against a number of candidates opposing her and defeated them with a substantial amount of the vote and subsequently won the general election.”

There’s more, so read the whole thing, though if you’re like me you’ll feel a little dirty afterward. Some of what is in this story stems from Hilary and Ronald Green’s ugly and contentious divorce, and some of it was in the news prior to that. I have no idea what the State Commission on Judicial Conduct will do, and I don’t know enough to assess the legal merits of attorney Babcock’s defense strategy; for what it’s worth, it sounds sketchy to me, but again, I Am Not A Lawyer.

There will be a political effect from all this one way or another, maybe soon and maybe later depending on what the SCJC does. I don’t want to think too much about that right now. People often wonder in situations like this how someone with that kind of baggage can get elected. Voters vote based on the information they have, and having more information of this kind available to them doesn’t always have the effect one thinks that it might. Sometimes people file unsavory revelations about a candidate as “negative campaign stuff” and tune it out, and sometimes they decide that other factors in a given race are more important. Surely if there’s one thing we’ve learned from the 2016 election season it’s that the people will sometimes make confounding choices.

City sued over bail practices

One more lawsuit going after the practice of jailing people who can’t afford to post bonf.

go_to_jail

Two civil rights groups sued the city of Houston late Monday, alleging the city jail has detained people for days at a time without offering them a hearing to determine if there was probable cause for the initial arrest.

According to the federal civil rights lawsuit, those who experience the wait — which ranges from eight hours to several days — for their transfer to Harris County custody are individuals who can’t afford bail. The county conducts probable cause hearings, but the groups said the lengthy delay is woefully routine and is unconstitutional.

They are suing under the Fourth and Fourteenth Amendments — for violations regarding probable cause and due process.

The lawsuit states that in July and August hundreds of people were arrested and kept in the city jail for more than three days without being granted a hearing. Part of the problem is overcrowding at the county jail, which creates a bottleneck.

[…]

The Civil Rights Corps, a criminal defense group based in Washington, D.C., and the Texas Fair Defense Project, an indigent defense advocacy group, filed the lawsuit in federal court in Houston. They’re seeking to have the case certified by a judge as a class action. The lawsuit also seeks compensation for individuals allegedly kept in the facility in violation of their constitutional rights.

As we know, there was a lawsuit filed against Harris County over their practices back in May. Both the Civil Rights Corps and the Texas Fair Defense Project are involved in that litigation as well, along with Equal Justice Under Law. It is my understanding that this new lawsuit is intended to be a completely separate action, not to be joined to the previous lawsuit. A longer version of the Chron story adds on about the first lawsuit.

Meanwhile, Harris County officials are awaiting a federal judge’s ruling on a motion to dismiss a separate federal case that accuses the county, sheriff judges and hearing officers of unfairly denying release to misdemeanor defendants who can’t afford their bail.

Last week, state Sen. John Whitmire, D-Houston, filed a related judicial misconduct complaint against three hearing officers who have routinely denied release on personal bonds. Their behavior, described in a Houston Chronicle story last week, violated both judicial ethics and state law, he said.

Whitmire on Monday urged Harris County District Judge David Mendoza to immediately remove the three hearing officers from presiding over bond hearings.

Mendoza said he would present Whitmire’s unusual request to a group of district court judges for consideration.

Robert Soard, a spokesman for the county attorney’s office, said the law firm handling the county’s bail case had offered to provide offer free legal counsel to the hearing officers, if needed.

See here for the background on that. To get back to the previous point, it is my hope that the city will work towards a settlement rather than fight this in court. The Press has more.

Whitmire files complaint against bail-denying magistrates

Good.

Sen. John Whitmire

Sen. John Whitmire

An influential Texas lawmaker on Thursday filed formal complaints against three Harris County magistrate judges after they were captured on videotape rushing misdemeanor defendants to jail without considering no-cost bonds.

State Sen. John Whitmire, D-Houston, filed the complaints with the State Commission on Judicial Conduct, citing an article published Thursday in the Houston Chronicle about the hearings and videos.

He complaints were lodged against Magistrates Eric Hagstette, Joseph Licata III and Jill Wallace. The hearing officers could not be reached immediately for comment.

Whitmire said he named the magistrates specifically in his complaint because of “obvious failures” to conduct hearings as required by statute.

“The total disregard for citizens and the complete lack of judicial temperament and professionalism are unacceptable,” Whitmire told the Chronicle. “I am requesting a thorough investigation by the State Commission on Judicial Conduct to determine if these violations are intentional, individual, or the responsibility of the elected judges who appoint these magistrates,” Whitmire said.

“Texas governing statutes clearly state that a magistrate should exercise their full discretion when conducting probable cause hearings and setting bond amounts,” Whitmire said. “It is clear from the video of their hearings that this is clearly not the case with these magistrates. It appears the probable cause hearings in Harris County not only violate the intent of these statutes, but also the letter of the law.”

See here for the background, and here for Sen. Whitmire’s press release. What we saw on those videos was a disgrace and a mockery of justice. I hope the State Commission on Judicial Conduct takes this seriously. Grits and the Press have more.

This week on “As Collin County Turns”

I swear, the Ken Paxton case is a giant vortex of political suck, absorbing everything in its wake.

Best mugshot ever

Best mugshot ever

The Collin County district judge who oversaw the grand jury indictment of state Attorney General Ken Paxton is now facing a complaint before the State Commission on Judicial Conduct.

Chris Oldner – whose comments about the politically charged case have drawn attention – was accused in a filing dated last week of judicial misconduct for “disparaging” Paxton, failing to recuse himself sooner, and potentially prejudicing the proceedings.

The campaign for Oldner, a Republican who is now running for the Texas Court of Criminal Appeals, said the “complaint is completely without merit.”

“It’s just another just another example of how dark-money special interest groups seek to bully and intimidate ethical, conservative judges who strictly follow the law,” the campaign said. “It has to be humiliating that they had to resort to a young, low-level political operative to do their bidding.”

The grievance was filed by Aaron Harris, a North Richland Hills politico who’s worked on anti-bond efforts and other Tarrant County campaigns. Empower Texans, a conservative group that supports Paxton, first posted Harris’ complaint on Wednesday.

Harris laughed off the Oldner campaign’s response, adding that “if I’m the boogieman, that’s great.”

“It’s very telling that he doesn’t address the merits of the complaint,” he said. “And I have no idea where he gets ‘dark money’ or anything like that. … I’m not sure how a concerned citizen is a special interest group.”

[…]

They asked Tarrant County District Judge George Gallagher, who’s now overseeing the case, to quash the indictments over issues with how Oldner selected the grand jury. They also accused Oldner of leaking information about the indictment to his wife.

Oldner has said previously that he didn’t do anything wrong. And while Gallagher did not address the claims against Oldner, he denied a motion last month which raised Oldner’s actions as a reson to throw out the indictments.

Harris’ complaint echoes the concerns outlined by Paxton’s legal team. He focused on an interview that Oldner gave to WFAA-TV (Channel 8) in which the judge accused Paxton’s defense team of having “reached a desperate place.”

“As citizens, we have to hold our elected officials – judges or not – accountable,” Harris said. “And Judge Oldner’s behavior in this case is troublesome.”

See here for the background. You have to admire Aaron Harris’ ability to keep a straight face while hilariously casting himself as just plain ol’ folk doing the good work of keeping an eye on government. I mean, I could hear him twirling his mustache from here. I have no idea whether Oldner – who I remind you is a candidate for Court of Criminal Appeals in the GOP primary – crossed any lines in that WFAA interview or not. The State Commission on Judicial Conduct will sort that out in a few months. But man, this whole Paxton case is a cancer. Who else will wind up going down with his ship?

It’s not just bail reform that we need

The latest from Emily dePrang at the Observer:

go_to_jail

It’s a Monday morning, a little past 9:00. Half an hour ago, this hallway on the eighth floor of the Harris County Criminal Justice Center in downtown Houston was swarmed with people. Now all the other courtrooms have opened, swallowed their subjects, and closed up again. Only the hall folk of Criminal Court at Law No. 2 remain, resigned citizens waiting at the gates of the Honorable Bill Harmon’s grim little kingdom.

Harmon’s court handles misdemeanors, though like all the cases heard in this building, the charges being leveled are serious enough to incur incarceration. A single day in jail can cost someone a job or create a child care crisis, but the consequences also activate powerful legal rights. The Sixth Amendment, as interpreted by several U.S. Supreme Court decisions in the mid-20th century, guarantees a right to counsel for all defendants charged with crimes punishable by confinement. Those who can’t afford an attorney shall have one appointed, the Court ruled in the landmark 1963 case Gideon v. Wainwright. “In our adversary system of criminal justice,” wrote Justice Hugo Black for the majority, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

Most Texans hauled into court are indeed poor. Last year, the state appointed counsel in 71 percent of felony cases and 41 percent of misdemeanor cases, according to the Texas Indigent Defense Commission. More than 415,000 defendants qualified for indigent defense services in 2014, and nearly 65,000 of them passed through the Harris County Criminal Justice Center.

But an unknown number of defendants qualified for help and were denied it. Likewise, an unknown proportion of those who received appointed counsel were represented by attorneys too busy to do much more than communicate a prosecutor’s plea deal. In either case, defendants are deprived of the Constitutional guarantee to what the U.S. Supreme Court describes as a “vigorous defense.”

These injustices are hard to quantify for the same reason they’re easy to commit: The state exercises almost no oversight of indigent defense, and most counties still administer their programs through an antiquated process rife with conflicts of interests. Most counties, including Harris, pass the responsibility down to individual courtrooms. The judicial appointment system lets judges decide which defendants will receive appointed lawyers, which lawyers will get indigent appointments, and how many cases these lawyers will be assigned. There are plenty of little administrative rules, of course, such as attorney pay rates and minimum qualification. And, as required by state law, Harris County has an official indigent defense plan that codifies exactly how judges are supposed to evaluate whether a person is poor enough to be entitled to appointed counsel. It instructs judges to consider a defendant’s debts, expenses and dependents when determining indigency.

But that’s all on paper. Here in the hallway, inside the courtroom, and even in absentia, Judge Harmon makes the rules. And Harmon’s rules are among the harshest in Harris County, a place not known for its equitable criminal justice system. More than half the defendants now waiting for Harmon have come to court without an attorney, and many believe they’ll be appointed one. None of them will.

[…]

“The way it’ll work is, the [appointed] lawyer will talk to the [district attorney], the DA will tell them, ‘This is what the offer is,’ and they’ll go back and convey this offer to the defendant,” [defense attorney Robert] Fickman says. “It almost always boils to this: that they’re offering you X, which means if you plead guilty you’ll get out of jail in so many days. Or we can reset [delay] your case, if you want to fight it, and you’ll end up spending more days in jail. It’s a hostage choice — it’s not a choice at all. These are poor people who need to get back out and try to feed their families. So what do they do? They plead guilty. They’re not pleading because they’re necessarily guilty but because they’re getting their liberty. The horror, the horrible irony of this system, is that people are pleading guilty just to get their liberty. And it goes on every fucking day.”

Read the whole thing, and ask yourself ho you would feel if this were happening to you or to someone you knew. Judge Harmon is one of the lucky duckies who gets to run for re-election in non-Presidential years, meaning that as long as current turnout patterns remain the same, he’s set. Pretty sweet deal if you can get it.

Complaint filed against judge who allowed same sex marriage

Whatever.

RedEquality

The judge that allowed Texas’ first gay marriage to go forward is the target of a judicial conduct complaint, the latest volley in the state’s attempts to call the historic union into question.

“This judge deliberately violated statutory law and this is unacceptable,” Rep. Tony Tinderholt, R-Arglington, said after confirming he had filed a complaint against state District Judge David Wahlberg with the State Commission on Judicial Conduct.

“This complaint and any action, which the legislature decides to take, is about ensuring that our judicial system respects the laws of our state and respects the separation of powers. Judge Wahlberg allowed his personal views to dictate his action and ignored state law to accomplish his desired outcome.”

[…]

Immediately after Judge Wahlberg issued the order, Travis County Clerk Dana DeBeauvoir signed the couple’s marriage license and they were wed outside of the clerk’s offices by their rabbi. The next day, Attorney General Ken Paxton asked the state Supreme Court to declare the license null and void.

Reached for comment Wednesday, DeBeauvoir stood by the license’s legality and was not surprised by the complaint.

“I do believe the judge acted in good faith and in a fully legal way, and I believe the court order that I followed was a legal court order,” said DeBeauvoir.

Tinderholt’s complaint was filed Feb. 19. In it, he cites a Texas law that requires the attorney general to be notified when anyone “files a petition, motion, or other pleading challenging the constitutionality of a statute of this state.”

See here for the background. Tinderholt, who has his own issues, wasted no time filing that complaint, as Judge Wahlberg issued his ruling on the 19th. Seems like a stretch to me, but as always I Am Not A Lawyer. What do the real lawyers think about this?

Pratt gets a reprimand

From the State Commission on Judicial Conduct. Not exactly timely, but at least it’s on the record.

Denise Pratt

The commission found that [Denise] Pratt, who resigned in late March, “failed to be diligent and failed to timely execute the business of the court,” including not making timely rulings in a variety of specific cases, a violation of the state constitution.

“The decisional delays in those cases were unreasonable and unjustified,” commission Chair Steven Seider wrote in the 13-page reprimand. “The Commission notes that Judge Pratt provided no evidence that these cases involved particularly complex legal issues; however, it was evident that Judge Pratt was carrying a particularly heavy caseload, and a very large backlog, due to her own lack of diligence and neglect of her duties.

“Excluding the fact that Judge Pratt was frequently late to court and often missed or canceled court hearings and trials, there does not appear to be a legitimate justification for the pattern of delayed decision-making that occurred during the last years of Judge Pratt’s tenure on the bench,” the document continues.

Doing those things “causes harm and a great disservice to parties, lawyers, witnesses, jurors, and other judges,” Seider wrote.

[…]

[Watchdog family attorney Greg] Enos on Tuesday dismissed the reprimand as tardy and a poor reflection on the commission, which lawyers often criticize for moving slowly and going too easy on the judges it investigates.

“This just shows how useless the Commission on Judicial Conduct is,” he wrote in an email. “They did nothing when we needed protection from Pratt and then they waited months after she was off the bench to slap her wrists.”

True enough, but it’s about the best we were going to get. I note with grim satisfaction that no one on Team Pratt could be reached for a comment for the story. Given the amount of yapping and woofing they’ve done in every other chapter of this saga, their silence in this case speaks volumes. You can read the full reprimand here if you’re curious enough.

Another slap on the wrist for a prosecutor behaving badly

Weak. Very weak.

The Texas Bar Association has issued a public reprimand to state district Judge Kaycee Jones for her role in clandestine texting during a criminal trial while she was a prosecutor and before her election to the bench last year.

Jones, who oversees the 411th court in Polk, Trinity and San Jacinto counties, signed the agreed judgement citing her for “professional misconduct” just before she came in front of the bar’s grievance panel for a hearing this month.

Jones, 39, was an assistant Polk County prosecutor for 11 years before becoming a judge in 2013. She could not be reached for comment.

However, in a letter to the bar’s disciplinary counsel several months ago, Jones confessed to being an accomplice in a texting incident that she stated she knew was wrong, writing: “I deeply regret that I acted in this manner.”

The agreed judgment documented how Jones had received text messages from state district Judge Elizabeth Coker, while she was seated on the bench during a trial in a child injury case.

Jones, then an assistant prosecutor and observer during the trial, wrote down the message that suggested a line of questioning to bolster the prosecution’s case and relayed it to the lead prosecutor.

[…]

However, several whistle blowers in the investigation, including attorneys Cecil Berg and Richard Burroughs, said the state bar was far too lenient on Jones.

“I’m totally stunned and in disbelief,” said Burroughs of Cleveland. “I served on the state bar’s grievance committee for eight years and would have expected Jones to be suspended or disbarred when she has confessed to violating someone’s civil rights.”

He said Jones has since refused to recuse herself from overseeing his cases that come into her court and feels she is retaliating against him.

He and Berg wanted the state bar to expand its investigation to include multiple other “ex parte” texts between Jones and Coker involving other defendants which were given to the state judicial commission for review.

“We want to find a way to have the bar association look at them still,” Burroughs said.

See here and here for the background. I suppose the State Commission on Judicial Conduct can weigh in as well, since Jones is now a judge, but since all they did with her partner in crime Coker was make her resign, I don’t expect much. I still think a suspension of one year is the bare acceptable minimum punishment for what these two unethical idiots did, and disbarment would not have been too harsh. Why bother to behave if there are no consequences for breaking the rules? Grits has more.

More on the Pratt resignation deal

I’m still shaking my head about this.

Denise Pratt

The Harris County district attorney still could investigate and charge former family court Judge Denise Pratt, despite striking a deal with the freshman jurist to resign to avoid prosecution on charges of tampering with government records.

Asked to elaborate on the terms of the agreement that led to Pratt’s March 28 resignation, a spokesman for District Attorney Devon Anderson said Thursday, “If new evidence is discovered, we can investigate and move forward with charges if warranted.”

Whether the deal Anderson struck with Pratt made the former judge immune from future charges was one of many questions raised by her critics on Thursday, the day after the county’s top prosecutor revealed the agreement in a statement that said pursuing a conviction would have been difficult.

The agreement, Anderson’s statement said, was the best and quickest way to get Pratt off the bench and bring the “ongoing damage to a stop.”

The district attorney issued the statement in response to criticism from her opponent in the November general election, Democrat Kim Ogg, who said earlier this week that the evidence brought against Pratt was more than sufficient to bring charges. Ogg said the lack of charges was suspicious because Pratt and Anderson – both Republicans – used the same political consultant.

See here for the background. I keep coming back to the question that if this was such a good move by DA Devon Anderson, if this really was the only way to get Denise Pratt off the bench, then why didn’t Anderson say so at the time? Why are we just hearing about it now that Anderson’s political opponent Kim Ogg dug it up started making a fuss about it? The fact that Anderson didn’t say a word about it when Pratt resigned and claimed it was because her opponents were out to get her, the fact that we might not know any of this now if Anderson weren’t on the ballot in November, strongly suggests that maybe this deal wasn’t something to be proud of but rather something to be hushed up.

Webster family lawyer Greg Enos, whose criminal complaints against Pratt prompted at least two district attorney investigations that resulted in no charges, took issue with Anderson’s contention that the resignation was the quickest way to get the judge off the bench.

He said the State Commission on Judicial Conduct, the state agency charged with policing Texas judges, typically suspends judges who have been indicted, and that “Any brand new attorney fresh out of law school could have gotten an indictment of Pratt.”

Commission Executive Director Seana Willing confirmed that the commission typically votes to suspend indicted judges.

[…]

[South Texas College of Law associate professor Amanda Peters, a former Harris County prosecutor,] and other experts say Pratt’s alleged actions definitely would qualify as tampering with a government record under state law. Section 37 of the penal code says court records qualify as governmental records and that tampering includes “knowingly entering a false record.”

“My read of the statute is that, if it is true that she backdated court orders, knowing that she was making false entries, this should be a violation of the law,” said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center.

Anderson’s statements this week, however, suggested there was not sufficient evidence to prove Pratt guilty.

“The process of getting Judge Pratt before a jury for trial would take years,” her Wednesday statement said. “The likelihood of success would be uncertain at best.”

That’s talking about a conviction, not an indictment, which would have been enough to get Pratt suspended. That’s not a “permanent resignation”, but it is at least enforceable. Looking back through my archives, here’s a copy of the first complaint that the grand jury declined to indict on, and here’s a copy of the third complaint. Maybe getting an indictment wasn’t a slam dunk, but then neither does it take years to make that determination. There is an argument to be made here for prosecutorial discretion on Anderson’s part. I’d be more willing to accept it if she’d have been willing to make it in a timely and forthright manner, instead of employing it as defense after being called out for exercising that discretion on the sly.

UPDATE: Texpatriate has more.

A deeper dive into the Pratt files

The Chron takes a closer look at some of the people affected by the tenure of now-former Judge Denise Pratt.

Denise Pratt

Kevin Bates’ sojourn through Pratt’s court began in 2012, via a visitation dispute with his ex-wife over their 16-year-old daughter.

A court order in the couple’s divorce said the private pilot was supposed to pick up his three daughters on weekends. While the two younger sisters came to stay with Bates on weekends, his teenage daughter stayed at home with her mother. Bates, 43, let it slide for awhile, but after his oldest daughter missed a family gathering at his mother’s house, he hit a breaking point. In March 2012, he filed suit and landed back in the 311th District Court where the couple had settled their divorce a few years earlier and Pratt since had taken the bench.

Then, he waited.

For a year, he did not see his daughter while he waited for a ruling from Pratt, who missed several scheduled hearings. So much time passed that Bates eventually let his lawyer file a “writ of mandamus,” in effect, asking an appeals court to force Pratt to rule. A three-judge panel in the 14th Court of Appeals, in a ruling that came less than three weeks later, said the wait had been “unreasonable” and ordered Pratt to make a ruling within 15 days.

Bates soon learned he was not alone.

[…]

Bates eventually got a ruling in his favor, but he said that no longer is the point.

“She took something away from me I’ll never be able to get back,” he said. He no longer sees his daughter, who since has turned 18. He blames the estrangement on the year he lost to Pratt’s inaction.

In its May 14, 2013, opinion, the appeals court panel wrote that Pratt had “abused her discretion” in Bates’ case.

“A parent’s right to access to his child is a fundamental liberty interest more precious than property rights,” it wrote.

The swift ruling and rebuke were unusual enough, Bates’ lawyer, Marcia Zimmerman, said.

The resulting fax from Pratt’s court was even more so.

The paper ruling, in Pratt’s handwriting, was dated August 2012, nine months earlier. It ordered Bates’ ex-wife to surrender their daughter, pay him $2,500 in lawyer’s fees and serve probation until December 2012 – five months before.

“I looked at the date and the first thing that came to my mind was: There’s no way this judge signed this order on this date,” Zimmerman recalled.

That led to the first complaint filed against Pratt, from which all of my Pratt-related blogging flowed. As we know, she has now resigned from the bench but is still on the ballot in the May 27 runoff. From this story, it sounds like if she does manage to win the runoff she would withdraw from the race in November, but who knows what Denise Pratt will do? She hasn’t exactly been a model of rational behavior so far.

In Part 2 of this series, we get another look at just how badly effed up Pratt’s courtroom was.

Lawyers started dropping by Judge David Farr’s court about a year into Denise Pratt’s tenure, complaining they could not get the freshman jurist to hear or rule on cases and that the rulings – when they came – often were inappropriate.

Farr, the family court administrative judge, said he took the grievances with a grain of salt, reminding lawyers they could appeal or file complaints with the State Commission on Judicial Conduct. Anger and disappointment, after all, are far from uncommon in the high-drama family courts where divorce, child support and custody battles range from amicable to poisonous.

In a dozen years of watching case load numbers, Farr said he had never seen one swell to more than 3,000 as Pratt’s had by last December, but he did not think he had “the power to reach into another court and second guess, move cases around.”

[…]

“We all knew we had a problem when she did not appear in court at all for the first 10 days after she was sworn in,” said Webster family lawyer Greg Enos, who filed three complaints against Pratt with the Harris County District Attorney’s office that sparked investigations. “Usually, judges are sworn in and are very eager to put the robe on and take control of their courtroom.”

In the weeks leading up to Pratt’s departure, Harris County Administrative Judge Robert Schaffer said he was trying to figure out how – and if – he could intervene in her 311th District court.

“There was a time in like February or March when I did start thinking about seeing what there was I could do, if anything, on this,” the civil district court judge said. “As you know, things were not getting done in that court.”

Schaffer had been in regular contact with Farr about Pratt and her court, particularly after the notorious December case purge. Even when it was clear there were serious problems, Schaffer said he was unsure he had the authority to step in.

State law gives county-wide administrative judges general authority to “supervise the expeditious movement of court caseloads.”

Schaffer, though, said the law is not as clear as it could be, and that “traditionally, the local administrative judge has not inserted him or herself into the operations of other courts. I really feel like the Legislature has not given us much guidance on specifically what we can and cannot do.”

That is not the case in other states, said South Texas College of Law Dean Emeritus James Alfini.

Texas, he said, has a culture of giving independently elected judges free reign with little or no oversight or willingness to crack down on rogue actors.

“We have a very loosely administered court system,” he said.

Farr said a national consultant the county hired to study the local court system has been puzzled by his lack of power.

“There are states where the administrative judges can say, ‘You have too many cases. I’m moving 500 of your cases over to this court,’ but not Texas. That’s not how we do things here,” he said.

Asked whether he could have or ever considered intervening in Pratt’s court, Judge Olen Underwood – the regional administrative judge, who oversees courts in more than 30 counties, said “I’m not aware of any authority I have to do that.”

“We have the judicial conduct commission to do those kinds of things,” he said.

Yes, well, as anyone who followed the Sharon Keller affair from a couple of years back knows, the State Commission on Judicial Conduct isn’t exactly a fearsome beast. Bad judges either eventually get voted out, or the screw up big enough to make resigning or retiring look good. This leads the article into yet another discussion of Texas’ partisan election model for choosing judges and another commercial for either non-partisan elections or some kind of appointment-with-retention-elections system. Personally, I think having the Legislature spell out in more detail what the administrative judges can and cannot do, and maybe giving them the authority to reassign cases under certain circumstances would have helped mitigate the worst of Pratt’s offenses. Maybe that issue will have some salience in the 2015 legislative session, now that everyone is aware of the giant mess Denise Pratt is leaving behind for others to clean up. If that happens, then at least one good thing will come out of her three-plus years on the bench.

Consequences are for suckers

They’re not for former judge Elizabeth Coker, thank you very much.

Elizabeth Coker

State District Judge Elizabeth E. Coker, who presided over Trinity, Polk and San Jacinto counties before resigning Dec. 6 under fire in a texting controversy, filed Monday to run for Polk County district attorney next year.

Coker will be challenging the incumbent prosecutor, Lee Hon, who was among the witnesses who testified about Coker this year before the State Commission on Judicial Conduct.

Coker was accused of unethical bias during court proceedings, including sending as many as 40 text messages from the bench to prosecutors, tampering with witnesses and slipping into a jury room to tell those deliberating how to vote.

She admitted no guilt and the commission stopped short of issuing any findings of misconduct.

In October, Coker, who served 14 years on the 258th East Texas bench, agreed to voluntarily resign. As part of a signed agreement with the commission, Coker is disqualified from sitting or serving as a judge in Texas and cannot even officiate at weddings.

But the order does not specifically ban her from other public offices, like district attorney, said commission spokesperson Seana Willing.

“The most the commission can do is remove someone from the bench,” she said.

Local attorney Laura Prigmore is mulling over whether to ask the courts if a prosecutor can be considered a “judicial” position since it is listed under the judicial branch in the Texas Constitution.

[…]

Republican chairman Lowell Crew said expects an “interesting match up” between Hon and Coker in the March Republican primary, but said he could not predict the outcome.

Prigmore, the attorney who wants a higher court to investigate Coker’s eligibility to run for district attorney, said in past elections that “Coker’s power was amazing.”

“She had a machine. But I’m not so sure it will still hold together now,” said Prigmore.

Cecil Berg, an attorney who filed complaints against Coker and who is running to replace her as district judge, described Coker’s campaign as “the most brazen thing I’ve ever seen.”

“I’m dismayed by it,” he said. “After all the improper communiqués she’s had with assistant district attorneys while a judge, now she wants to run the department. It’s beyond my comprehension.”

See here, here, and here for some background. Note that the prosecutor Coker was texting is now a judge herself, though she has a hearing with the Judicial Conduct commission pending. As I said before, I thought this punishment was too light. I’d have advocated for disbarment, though I’d have settled for a suspension of her law license for at least a year. Given that there was no stronger remedy available, I’m not at all surprised she chose to run for office again. No one has laid a glove on Elizabeth Coker yet. I saw no mention of a Democratic candidate in this race, not that it likely would have mattered, so it’s up to the GOP primary voters in these counties to decide if they’re the suckers here. Grits has more.

Judge Pratt update

The most embattled Family Court judge in Harris County is still on the ballot, in case you were wondering.

Judge Denise Pratt

Embattled state District Court Judge Denise Pratt, accused of falsifying court records to cover up tardy rulings, intends to remain on the ballot to face the voters, her lawyer says.

In late October, the Harris County District Attorney’s Office filed a criminal complaint against Pratt, alleging she falsified court records in an effort to cover up tardy rulings. A Webster family lawyer filed a similar complaint with the State Commission on Judicial Conduct.

County Republicans have said they are awaiting the outcome of a grand jury investigation before taking any action against Pratt, such as asking her to step aside.

But it may be a moot point. Today is the filing deadline for candidates, and candidates have only until Tuesday to withdraw from the ballot.

Pratt denies any wrongdoing and has no plans to withdraw from the ballot, her lawyer Terry Yates said Friday.

“She did nothing improper or illegal,” he said.

Pratt’s clerk resigned after allegations surfaced that the judge altered and backdated court records to make it appear that she issued rulings and filed documents sooner than she actually did.

Yates confirmed that the criminal complaint against Pratt is under review by a grand jury and said his client is “cooperating fully.”

If the grand jury does not come to a conclusion in time for the advisory board to act, Woodfill said voters will have their say. As of Friday, Pratt had garnered one Republican primary opponent, Donna Detamore.

That story was from Monday, so it’s up to the voters now. Thanks to a couple of late filings, they now have even more choices.

Embattled state District Court Judge Denise Pratt had garnered four challengers in next year’s GOP primary election by the filing deadline on Monday.

A complaint against the Republican freshman judge that led to the resignation of her lead clerk and an investigation by the Harris County District Attorney’s office is being reviewed by a grand jury. The complaint was filed with the DA’s office and the state Commission on Judicial Conduct by Webster family attorney Greg Enos.

As of Friday, only lawyer Donna Detamore had filed to run against Pratt. By 6 p.m. on Monday, though, lawyers Alicia Franklin, Anthony Magdaleno and Philip Placek had also joined the 311th District Court race.

Republican politico and lawyer Gary Polland, whose endorsements are considered key to GOP primary wins, said last week he would endorse Franklin if she filed. He endorsed Pratt during her first run in 2010, but said he would not do so again because he considers her a “political liability.”

Pratt, however, says she will not withdraw from the ballot and flatly denies the allegations being made against her.

“I’m sure you have heard the rumors that are being spread by the Democrats and the liberal media,” Pratt wrote in an e-mail sent Monday to GOP precinct chairs. “I wanted to take this time to let you know that the allegations brought against me by the Democratic faction are false. I am a conservative Judge and because of my principles I am being attacked. I have already filed to run for re-election as judge of the 311th Family District Court, and will not let the underhanded political tactics by the Democrats keep me from doing my job.”

And I’m sure the Commies are out to get you, too, Judge Pratt. At least until the District Attorney decides whether or not to charge you with official misconduct. For the record, Sherri Cothrun is the Democrat running for the 311th Family District Court in November. Cothrun was a candidate for the 246th Family District Court in 2010, and she is law partner to Rita Lucido, the Democratic candidate for SD17. I’d advise Judge Pratt to be more concerned about facing a quality opponent like Sherri Cothrun than anything the media might report about her.

If Judge Pratt wins the nomination and then subsequently withdraws for whatever the reason, she could not be replaced and the Democrat would be unopposed; this is the one thing for which we can be thankful to Tom DeLay, since he firmly established that fact in 2006. We’ll see what the grand jury has to say, as I presume their verdict will have a large effect on that.

See here, here, and here for the background. For what it’s worth, I recently asked a friend of mine who practices family law what he thought about Judge Pratt. My friend confirmed all of the things we have heard so far about her courtroom demeanor and management. It’s probably fair to say she’s not well liked by the lawyers that appear before her.

Speaking of the lawyers, the story adds this little tidbit:

The political situation would appear to put local Republican Party leaders, including Woodfill, in an awkward position.

Since last year, Pratt has appointed Woodfill to cases for which he has made nearly $10,000. He is not the only lawyer and Republican Party leader Pratt has appointed to cases in her court since taking the bench in 2011.

According to information obtained under the Texas Public Information Act, former party chairman Gary Polland, whose endorsements are considered key to judicial GOP primary wins, has made more than $79,000 in legal fees from appointments by Pratt. Lawyer George Clevenger, chairman of the party’s finance committee, has made more than $114,000.

Judges giving appointments to lawyers with whom they have political or other ties long has been the subject of controversy.

You could say that. It’s why Gary Polland is such a fierce opponent of the Harris County Public Defender’s office as well – he makes a ton of money from appointments, so having a public defender cuts into his bottom line. Just something to keep in mind.

Who judges the judges?

Meet the guy that’s been going after judges with behavioral issues.

The photograph at the top of Greg Enos’ monthly email newsletter is always the same: A pack of mongooses confronting a reared-up cobra.

The Webster family lawyer says the image is a symbol of a change he aims to kindle in the Houston-area legal community – at least in family courts.

“I do not expect to win every case,” Enos writes at the end of most newsletters. “I just want an efficient system in which my client gets a fair hearing by a judge who works hard, knows the law and does not play favorites.”

The newsletter Enos started nearly three years ago, titled the International Journal on the Reform of Family Courts or The Mongoose for short, has been one tool in his quest. Criminal complaints filed against judges have been another.

The 53-year-old Austin native’s criminal complaint last year against Galveston County Judge Christopher Dupuy preceded an investigation by the state attorney general and multiple indictments related to judicial misconduct that led to the judge’s suspension and eventual resignation.

Enos’ next target is 311th state District Court Judge Denise Pratt, a Republican family court judge first elected in 2010, whom he has accused of falsifying court records in an effort to cover up tardy rulings.

See here for the background on that. It’s far too early to know if the complaints about Judge Pratt have any legs, but they do seem to be getting attention. Of interest is that with each judge, Enos documented cases for criminal prosecution, rather than just file complaints with the State Commission on Judicial Conduct.

Enos also sent his complaint to the State Commission on Judicial Conduct, but described the move as a formality, calling the commission “worthless” based on its response to the Dupuy complaint.

“I don’t expect them to take any action because they wouldn’t in his case,” Enos said.

The SCJC proved to be largely worthless during the Sharon Keller debacle of 2010, so one can hardly blame Enos for seeking alternate paths to justice.

From the “Judges Behaving Badly” files

We’ll start with now-former Judge Elizabeth Coker:

An East Texas state district judge who had been accused of sending text messages to coach a prosecutor during a trial, being biased against some attorneys and improperly meeting with jurors has resigned as part of an agreement with a state judicial commission.

Elizabeth E. Coker did not admit to guilt or fault as part of her agreement with the State Commission on Judicial Conduct. The commission announced Monday that Coker had taken an immediate leave of absence and her resignation will take effect Dec. 6. The agreement also prevents her from ever being a judge again in Texas.

Coker had been a judge since 1998. She oversaw proceedings in Polk, San Jacinto and Trinity counties. Her father and grandfather had also been judges who presided over the same counties.

[…]

The commission said that during an August 2012 child abuse trial Coker presided over, the judge sent text messages to Polk County prosecutor Kaycee Jones, suggesting questions that Jones should relay to the prosecutor handling the case.

Coker was also accused of suggesting that a witness review a videotaped interview he gave to law enforcement to refresh his memory and rehabilitate his testimony and of discussing legal issues pertinent to the case “in an unsuccessful effort to assist the State (to) obtain a guilty verdict in the case.”

The defendant ended up being acquitted of a felony charge of injury to a child.

The commission also alleged Coker might have engaged in other improper communications and meetings with Jones and other prosecutors in Polk and San Jacinto counties and certain defense attorneys regarding pending cases in her courtroom.

“Judge Coker allegedly exhibited a bias in favor or certain attorneys and a prejudice against others in both her judicial rulings and her court appointment; and Judge Coker allegedly met with jurors in an inappropriate manner, outside the presence of counsel, while the jurors were deliberating in one or more criminal trials,” the commission said.

In addition, the commission alleged Coker “may not have been candid and truthful” in testimony before the panel about whether she tried to influence the testimony of a witness who spoke to the commission.

That’s quite the sorry litany of bad judicial behavior. About the only thing I can think of that she could have done to make it worse would have been to bet on the outcome of the cases before her. Personally, I think she got off too lightly – I think disbarment would have been a fitting punishment. But at least she’ll never don the robes again.

The prosecutor Coker texted is now herself a judge, and is facing her own inquiry for her role in that incident.

While the state judicial commission’s investigation into alleged improprieties by State District Judge Elizabeth Coker ended Monday with her resignation, the focus may now shift to any possible complicity by fellow judge and former prosecutor, Kaycee Jones.

Coker’s voluntary agreement to resign alludes to complaints that she “engaged in improper ex parte text communications with Jones,” who served as a Polk County assistant district attorney for 10 years until this year becoming the 411th state district judge.

On Tuesday, Jones could not be reached for comment. But in a previously written letter to the Texas Bar Association’s disciplinary counsel, Jones said that during her tenure as prosecutor she improperly utilized clandestine text messages sent from the bench by Coker.

Jones acknowledged passing along the texts, designed to bolster the prosecution’s case, to the lead prosecutor during a child abuse trial. “It was wrong and I knew better,” she wrote.

Jones’ name was prominently mentioned three times in Coker’s resignation agreement. The signed document refers to the so-called “texting and judging” incident as well as allegations of other improper communiques and meetings between Jones and Coker involving additional cases that were not specified.

Apparently, her boss at the time in the DA’s office made her promise to never do it again, but that ain’t good enough. Jones’ formal hearing is in March, but honestly, unless she has something better to say for herself, she should just save us all the time and trouble and submit her resignation. I don’t see how she can be trusted as a judge given her appallingly bad judgment.

Those two are known to be bad apples. Here in Harris County, we have an accusation of bad behavior against a Family Court judge.

State District Court Judge Denise Pratt is under investigation, accused of backdating court records to make it appear that she issued rulings and filed court documents sooner than she actually did, according to county officials.

Allegations against the 311th family court judge, raised by a Houston-area family lawyer in a criminal complaint filed with the Harris County District Attorney’s Office and the State Commission on Judicial Conduct, already have led to the resignation of Pratt’s court clerk.

Webster-based family lawyer Greg Enos, whose criminal complaint last year against a Galveston County court-at-law judge sparked an investigation by the state attorney general and multiple indictments that led to the judge’s suspension and subsequent resignation, said he delivered his complaint against Pratt to First Assistant District Attorney Belinda Hill on Monday. Enos said he believes the office has already launched an investigation.

A spokesman for the district attorney’s office said he “can’t confirm or deny” whether any investigation is underway, but county and other sources say the office is looking into it and already has contacted attorneys to arrange interviews.

The concerns Enos is raising also have touched off an investigation by the Harris County District Clerk, the official keeper of all court records.

District Clerk Chris Daniel said he looked into two of the six cases Enos included in his complaint, which led to the resignation on Monday of Pratt’s lead clerk, a well-liked, 25-year employee of the District Clerk’s office.

Daniel said he found records were postdated or mis-marked in those two cases, and that he is looking into a seventh one that another family lawyer brought to his attention.

An inaccurate timestamp or missing signature on a court document not only erodes “the integrity of the record,” Daniel said, but can have an impact on appeals and other legal processes.

“If you have the wrong date on a document, then statutorily you can run out of time to appeal a case, and that’s where the most damage is,” he said.

[…]

Several lawyers involved in the cases Enos cites in his complaint said they never have experienced such problems with a judge.

Marcia Zimmerman, a 30-year veteran family lawyer based in Clear Lake, said she resorted to filing a motion after waiting for months on a ruling from Pratt. When the ruling finally came in, she was surprised to see the date listed was months before she had filed her motion.

“I don’t think any of us believed the ruling was actually made before the petition for writ of mandamus because, why would she rule and not tell anybody?” Zimmerman said, noting that Pratt also missed two scheduled hearings.

Family lawyer Robert Clark said he had a similar experience, arguing a case in January and then waiting five months for a ruling from Pratt that the official court record now says was issued on Jan. 30, the day before the two-day trial actually ended.

“The thing is, it’s had a seriously adverse affect on the child in this case and my client,” Clark said. “This is just egregious.”

The DA’s office doesn’t comment on these matters so we don’t know for sure what’s going on with Judge Pratt, but the main charges against her are serious and could lead to a felony arrest if there’s sufficient evidence to bear them out. As things stand now, she would be up for re-election in 2014, though as was the case with our old buddy Chuck Rosenthal, whose name was dropped at the end of the story, she might come under pressure from the local GOP to not file. The filing deadline in December 9, and I daresay that regardless of what is being said officially about her case, we’ll have a pretty good idea of whether or not she’s in real trouble by then.

It’s official, Keller skates

Can’t say I’m surprised. Bitterly disappointed, but not surprised.

A special court of review on Monday declined to reconsider a decision to void an ethics rebuke given to Sharon Keller for her role in a botched execution-day appeal, apparently ending the case against Texas’ top criminal judge.

Prosecutors had argued that the special court mistakenly dismissed the charges against Keller over a procedural error, ruling last month that the State Commission on Judicial Conduct chose the wrong form of punishment when it rebuked the judge in July. They asked the court to return Keller’s case to the commission.

But the special court — three appellate justices chosen at random to hear Keller’s appeal of the rebuke — rejected that request without comment.

I’ve got no snark left in the tank for this. When good things happen to bad people, all you can do is remind yourself that much like Sharon Keller herself, life is not fair. What else is there to say? Grits has more.

Maybe we’re not on the hook for Keller’s legal fees after all

Well, at least it’s a small consolation.

Clearing up confusion in its dismissal of an ethics rebuke against Judge Sharon Keller, a special court of review has issued an order that no longer makes taxpayers liable for Keller’s legal costs.

The court’s original Oct. 11 order said Keller could recoup legal costs from the State Commission on Judicial Conduct — estimated by her lawyer to be “in the six figures” but probably less than $1 million.

State law, however, specifies that attorney fees cannot be awarded in judicial conduct proceedings. The new order deletes the reference.

At least that takes a teeny bit of the sting out of this whole debacle. The motion to reconsider is still pending, and that’s the only real hope for some kind of accountability. The Chron calls on the panel to do the right thing:

A possible escape from this absurd conclusion is a motion for rehearing filed with the review panel by the commission’s executive director Seana Willing and special counsel John J. McKetta. They persuasively argue that the commission is empowered by the Texas Constitution to choose from a wide range of options in dealing with judicial misconduct, noting the constitution gives the commission the authority to issue a public warning “after such investigation as it deems necessary.” Also, Rule 10 of the Texas Rules for Removal or Retirement of Judges, used in proceedings such as Keller’s, states that in lieu of removal or retirement, “the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition.”

If the special court won’t allow the warning, the lawyers argue that the matter should at minimum be remanded to the Judicial Conduct Commission for consideration of one of the alternative rulings. We agree.

I had said before that Keller getting off on a technicality would be the ultimate in bitterly ironic endings. The ultimate in happily ironic endings would be for Keller to wind up suffering a real punishment as a result of appealing the wrist slap she originally received for being too harsh on her. A boy can dream, can’t he? Grits has more.

Maybe Keller hasn’t gotten away with it just yet

Could there possibly be some accountability in this world?

[The state Commission on Judicial Conduct]’s executive director, Seana Willing, asked the panel to reconsider its decision to dismiss the case, which stemmed from Keller’s actions on the day Michael Wayne Richard was executed in 2007.

The three-judge panel had ruled that because the commission had instituted formal proceedings against Keller, it didn’t have the authority to issue a public warning against her.

Instead, the panel said the commission’s only choices were public censure, which is more serious than a warning; a recommendation for her removal from office or her retirement; or dismissal of the case against her.

Because of that, the panel dismissed the case. The panel, called a special court of review, had been appointed by Texas Supreme Court Chief Justice Wallace Jefferson to consider Keller’s appeal.

Willing, in her motion for rehearing, disagreed with the decision about the commission’s authority to issue a warning.

But if that’s the case, she said, the appropriate thing would have been for the panel to send the case back to the commission so it could choose among its more limited options.

“The commission is capable of correcting its error, and on remand can apply the correct range of censure, removal, retirement, or dismissal this Court found is available in formal proceedings,” Willing wrote.

At this point, there’s nothing about this case that isn’t unprecedented, so who the hell knows what the panel may do. Speaking strictly as a non-expert non-lawyer, I don’t generally expect anybody to change their minds in this kind of situation. I do think Willing’s filing has merit, but then I think Keller should have been booted off the bench, so take that with a gigantic grain of salt. I figure this is just a setup to dash my hopes again, so I’ll save a step and not get them up in the first place. Go ahead and tell me if you think I’m being excessively cynical. Grits has more.

Keller takes a victory lap

She’s still blaming others and lying about the facts.

Texas’ top criminal judge said Tuesday that she feels vindicated that a special court dismissed a public reprimand of her for closing her court and preventing lawyers from filing a last-minute appeal hours before their client was executed.

“What happened to me shouldn’t happen to any judge,” Texas Court of Criminal Appeals Presiding Judge Sharon Keller told The Associated Press during an interview at her courthouse office.

[…]

“I always felt once I got before a neutral judge, someone who hadn’t prejudged me, I’d be in pretty good shape,” she said. “And in fact, that’s how it turned out.”

Yes, thank God for her that she didn’t get in front of a judge like Sharon Keller, who would have given the back of her hand to her pathetic arguments. What a truly despicable human being she is.

Keller gets away with it

I’m thoroughly disgusted.

A special court of review Monday threw out an ethics rebuke given to Presiding Judge Sharon Keller for closing the Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal for an inmate facing imminent execution in 2007.

[…]

Bringing the high-profile case to a swift and stunning end, the review court said the commission committed fatal errors that doomed its punishment of Keller, issued in the form of a July “public warning” that chastised the state’s highest criminal judge for violating court procedures and bringing discredit to the judiciary.

In essence, commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty, the court ruled.

The judges said they did not address the merits of the charges against Keller but based their decision solely on the errors committed by the commission.

[…]

On Monday, the review court ruled that the type of proceedings used for Keller can only end in censure, not a public warning, and that the error was so fundamental that the only course was to dismiss all charges.

Censure, the court reasoned, requires “a finding of good cause” and seven votes from the 13-member commission, an independent state agency that investigates allegations of misconduct against Texas judges.

“Here, by failing to (authorize censure), the commission implicitly acknowledges that it did not find good cause for its actions or have the required votes to take those actions,” the judges wrote.

The review court also assessed “costs of the litigation” to the commission, which could make taxpayers liable for Keller’s legal fees.

So not only does Keller walk on a technicality, but we the people get to pay her lawyer bills. I’m going to be sick. Don’t anyone ever talk to me about “accountability” again. Grits has more, and Jeff Gamso gives it a proper summation.

Keller’s final appeal

You have to admire the tenacity, I’ll give her that much.

A special court of review plans to decide by Oct. 8 whether to dismiss a judicial ethics panel’s rebuke of Judge Sharon Keller or move forward with her appeal.

Keller appeared before the special court’s three-judge panel Monday to push for dismissal now, avoiding a three-day trial at the end of November over the rebuke from the State Commission on Judicial Conduct.

[…]

Chip Babcock, Keller’s lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a “public warning.” Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.

“Your only choice is what we’re asking — dismiss this. Do not force Judge Keller to go through a new trial,” Babcock said during the hearing at the Texas Supreme Court near the Capitol.

But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.

“Is it just a (correctable) error?” asked Justice Elsa Alcala of the 1st Court of Appeals in Houston.

The judges will render their decision by October 8. If they deny her motion to dismiss the original charges, the next hearing, which would basically be a re-litigation of the first one, would begin at the end of November. Grits was there for this, and he has more. I’ve previously suggested that Keller getting off on a technicality at the end of all this would be the bitterest irony I can imagine, but I must say that I can also imagine her ending up with the censure she should have gotten in the first place, all as a result of her refusal to leave well enough alone. That would be poetic, to say the least.

Keller’s appeal denied by Supremes

Poor baby.

The Texas Supreme Court this morning denied Judge Sharon Keller’s request to throw out last month’s public rebuke for her role in a botched 2007 death row appeal.

Later today, Keller’s lawyers are expected to file a separate appeal challenging the “public warning” given by the State Commission on Judicial Conduct. That appeal will ask Supreme Court Chief Justice Wallace Jefferson to name, by random drawing, three appeals court justices to review whether the warning was justified.

Today is the deadline for requesting the three-judge panel, which apparently would hold its own hearing — with witnesses, cross-examination and exhibits. (I wrote about the confusion regarding this appellate process last month.)

The Supreme Court did not elaborate or give reasons for its 8-0 ruling. Justice Nathan Hecht, who successfully challenged a public rebuke by the commission in 2006, did not participate.

In other words, we get to re-litigate everything all over again. All because she refuses to accept the little wrist slap she was given. Great use of tax dollars there. The Trib has more.

UPDATE: Grits tries his best to make sense of it all.

SCJC contests Keller’s appeal

When last we met, Sharon Keller had appealed the curious “warning” she received from the State Commission on Judicial Conduct to the Supreme Court, arguing that the Commission had acted “lawlessly” by issuing that particular sanction. The Commission has now fired back, saying essentially that it’s Keller who has violated protocol:

[I]nstead of appealing the commission’s decision through the usual route — requesting a new trial in front of a special tribunal appointed by the Supreme Court to reconsider its findings — Keller asked the high court to step in and evaluate the constitutionality of the sanction against her in an advisory opinion. She did that through a separate legal vehicle, called a writ of mandamus, which could allow the court to unilaterally reverse the commission’s decision. For Keller, there are two possible advantages in this approach: One, it saves her the time of going through the regular appeals process, and two, it puts her case in front of an all-Republican court that she might view as friendly.

The commission filed its response to Keller’s charges [Friday] morning. It says that even if it did act outside of the constitution — the commission maintains it did not — that Keller erred in asking the Supreme Court to intervene. That’s because Keller can only ask for a mandamus from the high court if she has already exhausted all other remedies under law. According to the commission, that hasn’t happened, because she hasn’t yet asked for a new trial from the specially appointed court to review her case. Keller has until the 30th day after the commission issued its decision — July 16, for those of you keeping track — to challenge it the old-fashioned way.

The SCJC’s response documents are here and here (both PDFs). I don’t think I can pinpoint exactly when this saga transitioned from melodrama to farce, but there’s no question we’re there now. Just sit back and enjoy the show, y’all.

UPDATE: Grits is taking my advice.

Keller appeals to Supreme Court

She’s still going for full vindication. Because as far as she’s concerned, she did nothing wrong.

[I]n a Supreme Court petition filed Thursday, Keller argued that the commission acted in a “lawless” manner because the Texas Constitution forbids it to issue such a warning.

“The order violates the constitution and is void. At the very least, it is a gross abuse of discretion,” wrote Keller lawyer Chip Babcock.

Babcock asked the court to issue a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller. “The (commission) should not be given rein to wreak additional mischief,” he wrote.

Here’s the background on what this is about. All I can say is that I can’t think of a more bitterly ironic ending to this fiasco than Keller getting off on a technicality. Somebody pour me a drink.

UPDATE: Grits has more.

What is this “warning” of which you speak?

I’m glad to see that someone is asking questions about the warning that the State Commission on Judicial Conduct handed down to Sharon Keller.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller, says the commission’s position is that the order “speaks for itself.” He declines further comment.

The question is somewhat complicated, and turns on what the Texas Constitution outlines and what the rules for the SCJC specify. It’s a bit of a mess, actually. The Statesman has a good story on this as well, which includes the fact that Keller is the 96th judge to be examined by the Commission, and the first to receive this particular sanction. One thing I hope we all can agree on:

While [Keller defense attorney Chip] Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller, which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

I would hope the answer to that is No. At this point, it appears the only way for that to be ensured is for Keller to take her medicine and let it go already. I’m not going to hold my breath waiting for that to happen. Thanks to Grits for the Texas Lawyer link.

“Warning” versus “reprimand”

Rick Casey answers a question that has been bugging me about the State Commission on Judicial Conduct ruling that issued a “public warning” to Sharon Keller.

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

So a reprimand would have had a real-life effect on Keller, while a warning is, well, nothing more than the finger wag in her direction I thought it was. Grits points out the obvious flaw in the Commission’s reasoning.

It’s a bit of a strange argument: Why would they prohibit Keller from sitting later if they did not think she needed to be removed now? Another question might be, “Why would the mid-range verdict of a ‘public reprimand’ exist if that’s the commission’s basic calculus?” By that logic, judges don’t deserve a public reprimand until they behave so badly they warrant removal, at which point presumably the commission would instead vote to remove them. What a Catch-22! If, as I suspect, the same commissioners have voted to give other judges public reprimands, that seems a bit disingenuous.

I can actually see a strong argument for a public reprimand as the right outcome – not removing her now but preventing Keller from sitting as a visiting judge later. One might think it proper to allow voters to pass judgment on Keller instead of having her administratively removed, but down the line you wouldn’t want someone who would knowingly violate court rules to sit as a visiting judge.

He also notes that the “warning” option seems to have come out of nowhere, as it wasn’t given by the Commission as a possible outcome when they heard the two sides’ appeals. Has any other judge received a “warning” before? I can’t help but think that the Commission was just simply reluctant to actually punish Keller. Remember, she’s said if she had to do it all over again, she wouldn’t do anything differently. Given that so far all this has cost her is money, of which she has plenty, why would she see any need to change? No consequences means no need for introspection.

Keller gets “public warning” from the State Commission on Judicial Conduct

No, I don’t know what a “public warning” is, either. It’s the first time I’ve heard that phrase. But it’s what the Trib says Sharon Keller got as her “punishment” from the State Commission on Judicial Conduct. What it sounds like to me is something less than a censure, which says to me they wimped out. But read the official doc for itself and see what you think.

UPDATE: Okay, I’ve finished reading the opinion, and it’s very clear that the SCJC holds Keller responsible for what happened. They called her conduct “willful or persistent” four times in their Conclusions Regarding Binding Obligations. I’m just puzzled by the “official warning”. Is this some legal term with which I’m unfamiliar? If you can, please help me understand that. Thanks.

UPDATE: From the Chron story:

Keller’s lawyer, Chip Babcock, said by telephone that she would appeal the decision. The appeal will be filed with a three-judge panel that will be appointed by the Texas Supreme Court, he said.

“Judge Keller is disappointed and shocked that the Commission has completely disregarded the findings of respected trial judge David Berchelmann, who presided over a four-day trial. It is perhaps not surprising that the same commission that made the charges finds them now to be valid despite overwhelming evidence to the contrary. Judge Keller looks forward to challenging this decision in the judicial system,” Babcock said in a statement.

Those who had complained of Keller were no happier.

“The people of Texas have been publicly warned today that we have an unethical judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law. Yet she has been allowed to keep her job,” said Scott Cobb, president of the Texas Moratorium Network.

“Really, this is the worst-case scenario for Texas. Now we know the problems in the Texas death penalty system reach to Texas’ highest-ranking criminal appeals court, yet the judge who closed the doors to justice for this particular individual remains in office.”

Whatever, Chip. From where I sit, she got away with it. Have fun keeping this in the public eye. The campaign ads in 2012 are already writing themselves.

UPDATE: Grits points to this Statesman story, which notes that while an appeals process for these procedures was mandated by the Lege, the Supreme Court has not created that process yet. Even more fun! Grits thinks Keller is running in 2012, too.

The Keller hearings

The current phase of the Sharon Keller saga may end soon.

Sharon Keller, fighting to keep her job as the state’s top criminal court judge, should know her fate soon.

After a five-hour hearing Friday, members of the State Commission on Judicial Conduct met privately to begin deliberating charges that in 2007 Keller improperly closed the Court of Criminal Appeals to a death row inmate scheduled to die later that evening.

The decision, to be issued as a written order, could come as soon as next week. The 12 commissioners can dismiss the charges, reprimand Keller or recommend that she be removed from office.

I say “the current phase” because unless the Commission votes to dismiss the charges, Keller will appeal. Anything is possible, and I know I’m setting myself up for disappointment by saying this, but I don’t see how they can possibly dismiss. Surely at least a reprimand is in order.

I say that in part because I’m hopelessly naive, and in part because I think the case for the prosecution, for which you can see Examiner Mike McKetta’s devastating PowerPoint presentation, is really compelling. But hey, what do I know? I’m just a guy who thinks that Sharon Keller is extremely lucky that she herself is not on the Commission. I’m glad to see at least one member of the Commission recognizes that.

Commissioner Tom Cunningham said he found it interesting Keller would argue that the “tainted process,” as Babcock called it, was denying the judge a fair hearing.

“Isn’t it ironic that’s what Mr. Richard was asking for?” Cunningham said.

Yeah, some of us noticed the irony a long time ago. The Chron, Texas Lawyer, and Grits, from whom I got the McKetta slideshow, have more.

Keller hearing today

Today is the day for the State Commission on Judicial Conduct to have its hearing on the Sharon Keller case and to decide what to do with the findings of the Special Master.

Today, prosecutors plan to argue that [Special Master David] Berchelmann’s findings were misguided and that the evidence showed Keller failed to perform her duties and cast discredit on the judiciary – both violations of the canons of judicial conduct.

Keller plans to argue that the special master’s criticism of her judgment were irrelevant to whether she violated judicial ethics, which Berchelmann found she had not.

Her attorney Chip Babcock said in briefs that Berchelmann’s findings “can only be read as an exoneration of her conduct.

We’ll see about that. It will likely be awhile before we hear from the Commission with their ruling. Austin Legal has more.