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US Attorney

The Precinct 4 evidence destruction debacle

What the heck is going on here?

Constable Mark Herman

Constable Mark Herman

The Harris County Precinct 4 deputy who was fired after destroying evidence in hundreds of pending criminal cases this year has been wrongfully tossing evidence without following department protocol since 2007, Constable Mark Herman announced Tuesday.

Herman’s announcement comes just after Houston defense attorney Paul Morgan wrote a letter to the U.S. Attorney’s Office asking the federal government to investigate Harris County Precinct 4 and the Harris County District Attorney’s Office, arguing that neither agency is capable of conducting an independent investigation and that the DA’s office is complicit in the fiasco. Morgan also asks the feds to strip Precinct 4 of law enforcement duties and restrict the precinct only to ability to serve civil process and warrants, because it has demonstrated that it “cannot handle criminal investigations and prosecutions,” Morgan wrote.

Since 2007, the fired deputy, Chris Hess, has destroyed more than 21,000 pieces of evidence, putting more than 1,000 cases in jeopardy. Already, the DA’s office has dismissed 142 pending cases, most of them drug-related, because the evidence was incinerated in January — the last time Hess destroyed evidence before he was caught and fired.

This problem only became public after Morgan and attorney Emily Detoto discovered in August that drug evidence in their own client’s case was destroyed — just as a prosecutor was offering their client, David Bellamy, a 25-year plea deal for meth possession, Morgan said. It was among the first cases to be dismissed due to the Precinct 4 missing-evidence fiasco.

But as more details have surfaced of the hundreds more affected cases, what has bothered Morgan and Detoto the most is the complete lack of action the district attorney’s office had taken on the issue, they say — even though District Attorney Devon Anderson admitted to knowing about the destroyed evidence since February. It was only directly after KTRK aired a story about Bellamy’s case on August 17 that Anderson blasted out an email to all her prosecutors, ordering them to stop offering plea deals or taking to trial any cases involving Precinct 4.

Morgan and Detoto say it was an email that should have been sent out seven months ago.

“With something this large, it’s either the height of deception or the height of incompetence — either way it’s inexcusable,” Morgan said. “But which office has more blame? It’s the district attorney’s office all day. They legally have more responsibility. It’s why we have shiny gold bar cards. This just can’t happen.”

This is nuts. I hadn’t followed this story very closely, so let’s review a few previous stories to catch up:

Precinct 4’s destruction of evidence the subject of a criminal probe

Hundreds of Precinct Four cases could be dismissed

Feds eyeing mass evidence destruction problems in Precinct 4 constable’s office

So a big mess, and we’re far from the end of it. In addition to being another headache for District Attorney Devon Anderson, it’s also now a campaign issue.

Harris County District Attorney candidate Kim Ogg is calling for a special prosecutor to investigate “possible civil rights violations” in the wake of disclosures that thousands of pieces of evidence were wrongly destroyed by the Precinct 4 constable’s office.

Ogg, a Democrat who is facing Republican incumbent District Attorney Devon Anderson in the November general election, questioned why Anderson waited more than six months to notify trial prosecutors that the evidence may be missing.

“It’s time we asked for an independent prosecutor to investigate not just the actions of Precinct 4, which are going to be reviewed by the Justice Department, but of this district attorney and her assistant district attorneys,” Ogg said Thursday during a news conference. “For every person who was convicted where evidence had already been destroyed, they’re entitled – in all likelihood – to a new trial.”

Anderson fired back, saying she has been open with the public about how she came to learn of the property room debacle in Precinct 4 and said Ogg is politicizing the issue.

“I have spoken at length with the media on this situation,” Anderson said in a written statement Thursday. “I have given them all the details and all the facts. If there are any questions on specifics I am happy to answer those, but Kim Ogg’s attempt to politicize this and make it a DA campaign issue is desperate.”

Anderson’s public integrity unit has been investigating the discrepancy since February, but the dozens of prosecutors who handle cases at the trial level were apparently not notified until Aug. 19 to stop work on Precinct 4 cases, after a defense attorney raised questions about missing evidence in his client’s case.

Ogg said failure to alert prosecutors more quickly and to disclose details about the missing evidence to defense attorneys appears to be prosecutorial misconduct.

Unfortunately for Anderson, she’s got some credibility problems to overcome if she wants to make a “politicization” claim stick. To be fair to her, however, her office isn’t the only one with some questions to answer here. Anderson has largely blamed Precinct 4 Constable Mark Herman for the problem, but Herman has only been in office since last year, and the evidence destruction apparently goes back a lot farther than that. Let’s return to that Press story we began with:

If Hess had destroyed evidence in any pending cases since 2007, then that leaves defense attorneys puzzled over how prosecutors never discovered they had no evidence against suspects they convicted or persuaded to take plea deals.

Herman took over as constable in May 2015 after former Precinct 4 constable Ron Hickman became county sheriff. In January, Herman ordered Hess and several deputies to clean out the storage room because it was overfilled with evidence. He said his office caught Hess’s misconduct shortly afterward, but he could not comment on or account for how Hess got away with destroying evidence for nine years prior. He says the constable’s office has passed various audits “with flying colors.”

Herman said Precinct 4 superiors can only trace Hess’s policy violations to 2007 because that’s when the department started using a new electronic system to track evidence destruction and the property room’s inventory. Hess had been working in the property room, though, since 2000, which is when Hickman became constable.

Herman told the Press that when he ordered a review of all of Hess’s past employee evaluations since 2000, strangely no evaluations on Hess were on file. By contrast, Herman said that every employee is supposed to be evaluated every year.

A sheriff’s office spokesman declined to comment on allegations that Hickman failed to discipline Hess for violations until it could be confirmed through records that Hess had been breaching department policies since 2007. The Press has requested the documents.

So one has to wonder how it is that now-Sheriff Ron Hickman didn’t discover this problem over the course of eight years. That’s a question that could use a bit more exploration. Like I said, I think we’ll be learning new things about this for quite some time to come.

More complaints against Paxton

From the Lone Star Project, spotted on the Quorum Report with the original press release forwarded to my inbox:

Ken Paxton

Lone Star Project research has compiled significant information regarding the involvement of Texas Attorney General Ken Paxton in a series of questionable property transactions in Collin County. Some of the information gathered by the Lone Star Project has already been made public in press reports, while other information has not yet been reported on at all.

In reviewing the information gathered by Lone Star Project research, I realized that the actions of Attorney General Paxton may have gone beyond activities that warrant only political criticism. In fact, the information points to the potential use of insider information and actions by Ken Paxton and his associates that could rise to the level of criminal activity.

In light of this, the Lone Star Project submitted a detailed complaint to the U.S. Attorney in the Eastern District of Texas, which has jurisdiction over Collin County, last month. We also submitted the complaint to the Grand Jury in Collin County which is currently conducting a criminal inquiry into Ken Paxton’s violations of Texas securities laws.

Given that the ongoing investigation into Ken Paxton’s violations of state securities law, we believe his close involvement in questionable land transactions in Collin County also warrant the review of law enforcement officials.

Background:
Last year, the Dallas Morning News reported on a land deal involving Ken Paxton and his business partners involving the purchase of property in the City of McKinney for $700,000. The property was quickly flipped for a selling price of $1 million. The News report details the creation of an appraisal district and zoning change which raised the value of the property before the subsequent sale of the land by Paxton’s company. While Paxton denied knowing about the new zoning designation, associates within Paxton’s business lobbied local officials to obtain the change.

The letters sent by the Lone Star Project to the U.S. Attorney and the Collin County Grand Jury includes additional facts on the land transactions and raise new questions regarding Ken Paxton’s involvement. The information focuses on four specific areas:

  • Even following the 2014 Dallas Morning News story, key questions remain unanswered about the extent to which Paxton and his associates used insider knowledge and political connections to profit from the development of the McKinney Property.
  • A land swap with the City of McKinney in which a narrow strip of property owned by Paxton’s company was traded for a separate property on a nearby street corner – the trade that appears to be of significant benefit of Paxton. The same day of the trade, Paxton’s company flipped the newly acquired property to a private entity for an undisclosed amount.
  • In addition to profiting from the resale of the property acquired by the trade, it appears that a title company connected to Paxton provided the title insurance for the two transactions.
  • Paxton and his associates continue to hold property in Collin County that may also result in a significant profit when it is eventually sold.

Documents Attached:
Letter to the Collin County Grand Jury
Letter to the US Attorney
Background Document

I did blog about that DMN story from last May, but I only noted Paxton’s refusal to release his tax returns during the campaign, since caring about such things was apparently so 2010. Perhaps this is why he was so secretive about it. I can’t find any news coverage of this, so draw your own conclusions about how big a deal it is.

The news release touches on the ongoing investigation in Collin County, whose deadline date is as yet uncertain. Yesterday we got an update on where this stands.

Special prosecutors assigned to investigate Ken Paxton’s alleged violations of state securities laws said this week that they plan to take their case to a Collin County grand jury next month.

The confirmation comes just weeks after a judge expanded the probe to include possible fraud allegations involving the first-term attorney general.

“We are going to the grand jury,” special prosecutor Kent Schaffer told the Chronicle on Wednesday. The process will begin in July when the new grand jury is chosen, and Schaffer said he expects it to take more than the typical three-month period juries sit in Texas.

That puts any possible resolution of the inquiry into at least the October/November time frame. At least we know it’s moving along, which is more than we could have said earlier this year. Trail Blazers has more.

While we wait for a ruling in the Rick Perry case

This story about a group of big-name lawyers filing a brief in support of Rick Perry’s motion to dismiss the charges against him ran a week ago. I put off writing about it because it looked like we might get a ruling on the motions from Judge Bert Richardson, but since he’s still thinking about it I figured I’d go ahead and finish what I’d started to write. I have what you might call a stylistic beef with the story as well as a substantive disagreement with the argument these gentlemen have put forward.

Corndogs make bad news go down easier

This corndog will not be silenced

A bipartisan group of lawyers and legal scholars is asking a judge to dismiss a criminal indictment against Gov. Rick Perry, arguing their objections to the case transcend politics.

“We have no personal or political stake in this case,” said James Ho, a Dallas lawyer who helped organize an amicus brief filed Monday morning. “We come from different political backgrounds. But Republican or Democrat, conservative or liberal, what unites us is our commitment to the Constitution, and our belief that this prosecution is profoundly mistaken.”

[…]

The brief filed Monday concludes the “prosecution must end immediately,” calling it “disturbing” that Perry could be indicted for actions he took during a political dispute. The groups cite a few examples of politicians using threats to work their will without facing the same consequences Perry has, most recently President Barack Obama telling congressional Republicans he’d issue an executive order on immigration reform if they didn’t act.

The 24-page brief has the backing of legal experts with Democratic backgrounds such as Jeff Blackburn, founder of the Texas Innocence Project; Paul Coggins, former U.S. attorney in Dallas; and Harvard Law professor Alan Dershowitz, whose skeptical remarks shortly after the indictment were used by Perry to argue even his political opponents think the case is bogus. Republicans on the brief include former U.S. solicitors general Ted Olson and Ken Starr, who now leads Baylor University.

See Texas Politics for more. The stylistic grievance I have is with the description of this group as “bipartisan”, since the term is being used to plant the idea that “see, even Democrats think the case against Rick Perry is bogus”. Look at the names highlighted in the story. One one side, you have three high profile professional Republicans – Ted Olson and Kenneth Starr, both former Solicitors General in Republican administrations, plus James Ho, a former Solicitor General for Texas under Rick Perry. On the “Democratic” side, you have one former US Attorney who – with all due respect – no one who doesn’t already know him has heard of, and two high-profile people that aren’t Democrats in a meaningful sense. Neither Alan Dershowitz now Jeff Blackburn has worked professionally for a Democratic administration or organization as far as I could tell by looking at their bios online. Dershowitz is an outspoken and often controversial academic whose stated beliefs are iconoclastic and not easily pigeon-holed into a left/right dichotomy. Blackburn heads up a well-respected non-profit that by its nature works closely with Democrats and Republicans. Folks in the criminal justice reform business tend to be single-issue focused and will gladly work with whoever supports them – see, for example, this recent Observer story and the remarks within it by Ana Yáñez-Correa, head of the Texas Criminal Justice Coalition, which include a warm endorsement of the newest Republican State Senator, Charles (no relation to Rick) Perry. Take these two “Democrats” out and you’re left with a group of mostly powerful Republicans standing in support of Rick Perry. There may or may not be merit to what they’re saying, but as a story it’s a lot less sexy this way.

As for my substantive objection, comparing Perry’s action to the standoff over immigration and a threatened executive order on DACA is so laughable I have to wonder if any of these high-profile signatories are even familiar with the case at hand. What this case is about is very simple: An elected official may not use the power of his or her office to try to coerce the resignation of another elected official. It’s not in dispute that this is what Rick Perry did. His defense boils down to 1) the laws that he is charged with violating were not intended for this use and are not applicable in this instance, and 2) he has a First Amendment right to make the kind of veto threats that he made. There may well be merit to point #1 – I have seen attorneys of the Democratic persuasion take pause with this. I’m not qualified to assess the legal fine points, but I recognize that Mike McCrum is tilling a new furrow here. Of course, Rick Perry did something no one had done before, too, so we’ll leave that up to Judge Richardson. As for the First Amendment argument, I claim no expertise but it seems to me that the exception being carved out here is narrow and well-defined. I see a bright line, not a slippery slope. Your mileage may vary, and so may the judge’s. If that’s the case, then so be it. I’m just not impressed by the smoke that these attorneys are trying to blow my way.

Finally, there’s a partisan question, raised in the comments here. Would I be so supportive of this prosecution if I didn’t have such a hearty dislike for Rick Perry? It’s always hard to objectively evaluate one’s own biases, and the partisan contours of this dispute were evident from the beginning, which makes it more difficult. But here’s a thought experiment to consider. We just elected ourselves an Attorney General that has some legal baggage of his own, including a criminal complaint, an SEC complaint, and a state bar grievance. It is possible that in the near future Ken Paxton could be in even more hot water than Rosemary Lehmburg once was. Now imagine that the gubernatorial election had turned out differently. How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down? I would suggest that how you feel about that and how you feel about the Perry indictment should be about the same. If they’re not the same – in particular, if the way you feel about one is the polar opposite of how you feel about the other – that may mean you’re letting partisan feelings cloud your judgment. Just something to think about.

Three new judges coming

Nice.

Robert Pitman

Breaking a longstanding logjam, President Obama announced nominees for three vacant Texas federal court benches late Thursday.

If confirmed, U.S. Attorney Robert Pitman of San Antonio, Texarkana lawyer Robert Schroeder III, and Sherman Magistrate Judge Amos Mazzant III will all get lifetime jobs as U.S. district court judges.

“Any nominations are critically important, as Texas desperately needs to have as many of its nine district and two circuit vacancies filled,” said Carl Tobias, a University of Richmond law professor who tracks nominations. “The judges are overwhelmed by crushing case loads and too few judicial resources.”

Pitman’s appointment would be “historic,” Tobias added, because he would be the first openly gay federal judge in the state.

Pitman is used to breaking ground. He became Texas’ first openly gay U.S. attorney, and one of the first anywhere. Before his appointment in 2011 as the top federal prosecutor for the Western District of Texas, he served as a magistrate judge.

Pitman, nominated for a seat in San Antonio, earned his law degree from the University of Texas. If confirmed by the Senate, he will take the bench formerly filled by W. Royal Furgeson Jr., dean of the University of North Texas Dallas College of Law that is set to open this fall.

Furgeson, reached Thursday night, called him “an outstanding choice. His career covers a wide range of experience. At every juncture, he has performed brilliantly. He works hard. He is very balanced and has excellent temperament. And he is a very decent, honorable and humble person.”

To say the least, it has been a struggle to get judges – and for that matter, US Attorneys – nominated for Texas. President Obama got off to a slow start in making nominations overall, but the resistance he’s encountered has been a much bigger obstacle. I hope he can get this job finished before his term ends. In the meantime, congrats and best of luck with the confirmation process to all the nominees. PDiddie has more.

Empty benches

It would be nice to have some more federal judges here in Texas.

"Objection Overruled", by Charles Bragg

“Objection Overruled”, by Charles Bragg

Saying that Texas has more vacant federal judgeships than any other state, leaders from state and national liberal advocacy organizations on Monday called on U.S. Sens. Ted Cruz and John Cornyn to do more to fill the openings.

“The Republican senators go out of their way to prevent certain seats from being filled, hoping that a future Republican president will step in and fill them,” Janet Neuenschwander, coordinator of the National Council of Jewish Women, said Monday at a news conference addressing the vacancies. “You have got a circuit court of appeals heavily weighted in favor of Republicans. I can only assume that the two senators do not want to put any additional judges on that circuit to maintain the substantial advantage that they have on that circuit.”

There are seven Texas federal district court judgeships vacant and two Texas seats on the 5th Circuit U.S. Court of Appeals. Seven of the vacant spots have been declared “judicial emergencies” by the Administrative Office of the United States Courts because of the length of the vacancies.

[…]

In April, Cruz and Cornyn established a Federal Judicial Evaluation Committee to collect nominations for the seats. “It is crucial that we ensure Texans have the best, most qualified judges and prosecutors defending their rights in court,” Cruz said in a news release on the commission.

The panel accepted applications throughout the summer but has yet to make any nominations. Some of the seats have been open for as long as five years.

According to a statement from Progress Texas, the vacant seats can have serious consequences for Texans trying to have their cases heard.

“When there are not enough judges, Texans can’t stand up for their rights in court,” the group’s statement said. “Delays can stretch from months into years. Memories can fade, witnesses can die, a nd families can be bankrupted.”

Lord knows, the slowrolled by Texas’ Senators on federal appointments since pretty much the beginning. It would be nice if government were allowed to function normally, but that’s not what Cruz and Cornyn were elected to do.

Can we finally get some US Attorneys?

A “Republican and former federal prosecutor” named Bill Mateja wrote an op-ed over the weekend that simultaneously cheered and criticized the Republican obstruction of getting US Attorneys nominated for Texas.

Why should Republicans, who have played their hand so well, now help Democrats get these posts filled during a Democratic administration? The simple answer is that while their stand may be principled and worthy of kudos to the extent they’ve beaten back Democratic efforts to install mere politicos, it is no longer what is best for Texas.

Mike McCrum’s recent announcement that he was withdrawing his name from consideration for the San Antonio U.S. attorney’s post underscores the fact that whatever the cause of the political logjam, it simply has to end.

McCrum — a first-rate, prosecutor-first-Democrat-second lawyer – withdrew his name even though he seemed to be the pick of Democrats and Republicans. He had been on hold too long without the ability to take on new cases, which was anathema to his legal practice and bringing home the bacon.

[…]

The time is now to put empowered federal prosecutors in place, even if it means Republicans relinquish their upper hand and settle for someone who is politically not what they would prefer. Again, I call on our senators to end this stalemate, whether by making things happen or allowing or greatly easing the way for Democrats to move nominees to confirmation. I trust that the senators’ principled stand on this issue will result in Democratic nominees who aren’t merely political hacks and who, while not perfect from the senators’ political vantage, can get the job done.

It’s interesting that Mateja mentioned the specter of “political hacks” or “mere politicos” three times but never claimed that any such candidates had been seriously put forth, and the one nominee he did name he called “first rate”. Protest a bit too much, Bill?

I give Mateja credit for accurately citing Republican obstructionism as the primary reason for the delay, but of course this is much bigger than just Cornyn and KBH throwing their weight around. The entire strategy of the Republican Party from January 21, 2009 onward has been to obstruct and delay, which has been a huge success for them thanks in no small part to the dysfunction of the Senate. I have no doubt that it would be an acceptable outcome to our Senators and to any Republicans who might succeed either of them for these positions to remain unfilled for as long as President Obama is in office. The GOP is perfectly content to ensure that the economy remains broken in order to maximize their chances of retaking the White House in 2012. Why should they care about a few white collar criminals going unprosecuted in the interim? But hey, good luck trying to get them to listen to you, Bill. My advice would be to accompany your pleadings with a few bags of unaccountable corporate cash, but to keep your expectations low anyway.

On a side note, the next time someone tells me that we need to stop electing judges because doing so is just too political, I’ll show them this and ask why they think the appoint-and-confirm process would be any less political. At least with elections I get to have a say in it.

Nominations, please

I sure hope that while President Obama was in town, someone asked him if he ever intends to nominate a US Attorney for Texas?

Justice goes on, but Obama could have used those prosecutor jobs to build a farm team that helps Texas Democrats rebuild, instead of leaving them filled by unknown career lawyers. That suggests he may get an earful about botched opportunities when he arrives Monday in Austin and Dallas to raise campaign cash.

“They’re absolutely missing an opportunity, and have missed an opportunity that can’t be recaptured,” said Dallas lawyer Matt Orwig, who spent six years under George W. Bush as U.S. attorney for the Eastern District of Texas, which includes Plano. “Look at the number who become judges. The number of congressional candidates across the country, or who have become senators. … It’s totally puzzling that they’ve been so passive and inattentive,” he said.

Tussles between Texas’ senators, both Republican , and the state’s Democrats in the U.S. House certainly caused some of the delay, but both sides long ago submitted lists of preferred nominees that largely overlap. While most states have gotten Obama nominees, Texas is still waiting. The White House has consistently denied to discuss any aspect of the issue.

Rep. Lloyd Doggett, D-Austin, has made no secret of his irritation at the White House over the delays. Sen. John Cornyn noted that disagreements with the Democrats – notably, over the Dallas-based prosecutor job – “have been in the minority of cases. … I’m as frustrated as anyone else that the White House has been so slow.”

Cornyn’s frustration is more than a little precious, given how the Republicans in the Senate have stalled, snagged, and slow-walked pretty much all of Obama’s nominees. He has had fewer district and appeals court judges approved than any of his recent predecessors, and I don’t see that changing any time soon. If Obama nominated Cornyn’s top four choices tomorrow, who knows when or even if they’d get a confirmation vote. Having said all that, Obama has been bizarrely, bafflingly slow across the board in nominations. I’m far from the only person to wonder what the hell is up with that. So I do hope that the President got multiple earfuls about this while he was here, every word of which he deserved.

Some day our US Attorney will come

As far as I can tell, if Sens. Cornyn and Hutchison have their way, the US Attorney positions in Texas will remain vacant until after the next Republican President is elected.

A classic political stalemate pitting Texas’ Democratic congressional delegation and Obama’s administration against Texas’ pair of Republican senators is partly to blame for the slowed process here. Similar fights in other states, as well as an especially cautious presidential nominating process, have left most of the nation without freshly appointed lead federal prosecutors, who direct law enforcement priorities and approve work on the big projects.

Instead, many of the seats have the same folks there when President George W. Bush was president or, as in Texas, the jobs are filled by someone bridging the gap.

In Houston, that gap stretched to about 14 months and interim U.S. Attorney Tim Johnson last week announced he’s leaving next month for a private sector job. A second interim attorney has to be put in the Houston seat now.

“This is the slowest I’ve ever seen it. There’s an unnecessary fight between members of Congress and the Senate, and it’s very disheartening. There’s a cost to the people of South Texas,” said Tony Canales, a Democrat who is the former Houston-based U.S. attorney and who joined a panel established by the GOP senators to help pick candidates.

Despite the “it’s everybody’s fault” tone of this story, the fact is that according to the Congressional Research Office, when the President is of one party and both of a given state’s Senators are of the other party, “the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President’s party.” The reason for this stalemate is because Cornyn and Hutchison refuse to acknowledge this and instead insist that they get to make the decision. The fact that their ridiculously un-representative screening committee happened to come up with a good candidate (a Republican, of course; that’s the reason for their meddling) is beside the point. It’s not their decision to make. But thanks to their intransigence, and the Senate’s dysfunctional “blue slip” rule, here we are a year into Obama’s Presidency and the only way forward is to give in to their demands, since they’ll never back down. We should at least be clear about why this is.

Let’s seat those judges

Traditionally, a President seeks input from a state’s Senators when filling federal court, US Attorney, and US Marshall openings. Also traditionally, when the President and both Senators from a given state are from opposite parties, the state’s Congressional delegation assumes that role. Here’s hoping that actually works here in Texas.

Democrats, with their party in control of the White House, want more input into selecting judges and U.S. attorneys in a system that has been dominated by Republicans for the past eight years.

“We have to be realistic,” said Rep. Solomon Ortiz, D-Corpus Christi, the state’s senior congressional Democrat. “Democrats won the election.”

Rep. Lloyd Doggett, D-Austin, the Democratic congressional delegation chairman, said the Republican senators may offer input, but House lawmakers will recommend candidates for nomination.

“Individuals seeking these positions must have the approval of the Texas Democratic delegation,” said Doggett.

A White House statement confirms the Texas Democratic delegation clout, but it also adds to the ambiguity of the process by saying the “Texas U.S. senators will be accorded a full opportunity to share their views about each candidate whom the president proposes to nominate.”

That led Republican Sens. John Cornyn and Kay Bailey Hutchison, to install their own Federal Judicial Evaluation Committee to screen applicants for judicial districts in the state. It’s the same committee used over the past decade, only the formerly all-Republican panel now has added Democrat members.

Cornyn said the committee process exists to ensure judicial candidates are “the very best lawyers in the state.” A member of the Senate Judiciary Committee, which conducts confirmation hearings on judicial nominees, Cornyn said he did not want the process “viewed as a partisan exercise. We want it to be a quality control exercise.”

Cornyn also warned that senators have the power to block any home state nominee to judicial posts — a process known in Senate parlance as rendering a “blue slip.”

I assume they refer to this largely female-free list. I’m happy to let Cornyn and Hutchison have some input, but I hope they’re grownup enough to realize that this isn’t all about them. The President can and should give priority to Democrats for these positions, and as long as the nominees are well qualified, I think our Senators should go along instead of playing partisan games. I don’t think that’s too much to ask. We did finally manage to get Justice Sonia Sotomayor approved, after all. Of course, that happened over Cornyn and Hutchison’s objections. That’s not an option here thanks to the blue slips, so we’ll have to see if they can play nice with everyone else.

US Attorney update

Mary Flood notes that while we still don’t have a nominee for US Attorney for the Southern District of Texas, we at least now have a list of finalists.

The committee met with the four folks whose names were sent by the Democratic Congressional delegation for U.S. Attorney in the Southern District of Texas —
Eric Reed
Susan Strawn.
Larry Veselka and
* assistant U.S. Attorney Cedric Joubert.

But they also met with two other assistant U.S. attorneys — ex-Harris County District Attorney Ken Magidson, who has been lauded for his handling on the Rosenthal-to-Lykos months, and civil prosecutor Daniel Hu.

She refers to this committee, which seems to have done a reasonably decent job of putting names together, though as predicted one that’s a little short on female names. We’ll see how long it takes to go from here to an actual appointee, and whether the Republicans in the Senate will be as needlessly obstructionist with this as they’ve been with so many other nominations.

Who are these people?

As we know, there are vacancies in the US Attorney’s offices in the Southern and Western district offices in Texas, which will be filled by Presidential appointment. Normally, when the President is of one party and both of a given state’s Senators are of the other party, “the primary role in recommending candidates for district court judgeships is assumed by officials in the state who are of the President’s party.” That’s from a report last year by the non-partisan Congressional Research Service. Except that as Steve Benen noted, Texas’ Republican Senators have refused to honor this practice, and instead have insisted on sending to Obama candidates who have been screened by the committee he and Hutchison have always used for making nominations — a committee he admits is “heavily stacked with Republican lawyers.” Because, you know, it’s different when Democrats are in charge.

Well, as Todd Gillman reports, they have made one small concession:

Hutchison and Cornyn refused to cede control, though they did concede it was time to retool the screening panel – adding more Democrats and trial lawyers. They also promised to identify members, to let the public assess the panel’s caliber and balance.

Late Friday, Hutchison’s office finally provided a membership list. It’s hard to assess how the membership has changed, since they never provided a list of prior members. We do know that chairman Daniel Hedges of Houston is a holdover. We know that the previous vice chair, Colleen McHugh, is off the committee.

And, thanks to a 2001 Texas Lawyer report, flagged for me Sunday by a well-informed reader (thanks, well-informed reader!), we can report today that of 35 screeners back then, 12 serve on the new committee.

Beyond that, you’ll have to judge for yourself if Texas’ senators lived up to their promises.

I’ve reproduced the list beneath the fold. Two things stand out to me. One is that of the 31 names listed, two (2) are women. Who knew there were so few women in the state of Texas capable of offering a judgment about the qualities of a US Attorney candidate? I’m thinking that if Cornyn and KBH had such a hard time coming up with the names of women to serve on their committee, their committee may have an equally hard time coming up with the names of women as potential USAs. According to the State Bar of Texas Department of Research and Analysis, as of Dec. 31, 2006, 31 percent of the 71,470 in-state Bar members are female. But only seven percent of the Cornyn/KBH screening committee are. That ain’t right.

And two, one of the people on this list is Andy Taylor. Yes, that Andy Taylor. All I can say is that if any other member of this list is half the dishonest partisan hack Taylor is, then the whole thing should be thrown out. To borrow from William F. Buckley, I’d sooner have the candidate names be selected by the first 31 people in the Houston phone book. If that’s their idea of making this list more representative, they’re crazy.

Finally, as with Gillman, I don’t know the party affiliation of most of these people. If you can point it out for any of them, please do so. Thanks.

(more…)

Johnny Sutton resigns

As is the norm when a new President is inaugurated, US Attorney Johnny Sutton of the Western Judicial District of Texas has resigned his position.

Sutton’s resignation was voluntary, [spokeswoman Shana] Jones said, and his future plans were not immediately disclosed. He was not available for comment.

U.S. Rep. Lamar Smith, R-San Antonio, the ranking Republican on the House Judiciary Committee, said Sutton “did a good job overall as U.S. attorney.”

Appointed to the office by President George W. Bush in 2001, Sutton followed a time-worn practice of stepping down to allow a new president to nominate a replacement.

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The resignation leaves a vacancy in the Western District of Texas, which includes San Antonio, Waco, Del Rio, Austin and El Paso.

There are also U.S. attorney vacancies in the Southern District, which includes Laredo and Houston, and the Northern District, which includes Dallas.

Texas’s two U.S. senators and congressional Democrats will now begin vetting candidates for the positions.

The delegation will offer candidates to Obama, whose final nominees will need Senate confirmation.

Lawyers who have expressed interest in Sutton’s post include Juanita C. Hernández with the Securities and Exchange Commission; Mike McCrum, a former federal prosecutor; San Antonio City Attorney Michael Bernard; and Travis County Attorney David Escamilla.

Also interested are: Austin lawyer Scott Hendler; Robert Pittman, a U.S. magistrate judge in Austin; and John Murphy, a Western District federal prosecutor.

The only name on that list with which I’m familiar is David Escamilla; if anyone knows anything about these folks, please leave a comment. As with the vacancy in Houston, I hope and expect that Democratic applicants be given priority. Assuming that Sen. Cornymandias doesn’t try to change the rules, of course.

The next US Attorney in Houston

Now that we finally have an Attorney General, we also have a lot of people who would like to work for him.

The U.S. attorney wannabes who confirmed for the Houston Chronicle that they are interested are Harris County District Judge Marc Carter, Galveston County District Judge Susan Criss, lawyer and ex-prosecutor Philip Hilder, Assistant U.S. Attorney Cedric Joubert, Assistant U.S. Attorney Ken Magidson, lawyer and ex-prosecutor Ricky Raven, lawyer and ex-prosecutor Eric Reed, lawyer Larry Veselka and lawyer and ex-prosecutor Susan Strawn.

U.S. Rep. Lloyd Doggett, D-Austin, is collecting applications. His office confirmed that Assistant U.S. Attorney Mark White III and Cameron County District Attorney Armando Villalobos have expressed interest in the job.

Some others whose names are being discussed have pulled themselves off or seem equivocal.

Brownsville lawyer Benigno “Trey” Martinez said he is out of the race since he decided not to uproot his family. Ex-Houston Police Chief Clarence Bradford said he was encouraged to seek the position but probably won’t.

The U.S. Southern District of Texas, headquartered in Houston, covers 43 counties and runs down the coast from Galveston to Brownsville and as far west as Laredo. The Houston-based U.S. attorney is one of four top federal prosecutors in Texas.

Those four prosecutors are Tim Johnson of the Southern District, who was an interim appointment, Johnny Sutton of the West District in San Antonio, James T. Jacks of the North District in the Metroplex, and Rebecca Gregory of the East District in Beaumont. I don’t know what the normal procedure is here for US Attorneys when there’s a new President, especially one of a different party, but I would assume at least one more of these offices will open up. Not to be too crassly political about it, but given the thinness of the Democrats’ bench for statewide office, these would be plum positions for someone with higher ambitions.

Most of those seeking the job are Democrats, though Magidson just finished filling a Republican term as Harris County district attorney. White’s father was the former Democratic Texas governor. Hilder and Veselka were active in President Barack Obama’s campaign.

And Judge Marc Carter is a Republican as well. I’m happy for him that he’s interested in the job, but with all due respect, he can get in line behind the Democratic hopefuls.