Saturday, May 1, 2021

Judge Ramona Franklin and the 338th Star Chamber

 It was twenty-two years ago this evening that I learned (through the world's slowest dial-up internet connection) that I had passed the Bar Exam.  In some ways, it doesn't seem that long ago.  In others, it seems far longer than it actually was.  I've been around since the time of Johnny Holmes.  I've handled cases in multiple counties across Texas, and I've probably appeared in front of over one hundred judges.

I've appeared in front of good judges and bad, smart judges and not-so-smart judges, funny judges and humorless judges, kind judges and downright mean judges, strict judges and informal judges, liberal judges and conservative judges, humble judges and the utmost arrogant of judges.  I've appeared before judges that I adored and judges that I despised (and always will.)

I've even appeared before a certifiably crazy judge a time or two.  Some of my wildest war stories come from my time as the Chief of County Court at Law # 5 when Judge Janice Law was on the Bench. (Sidenote:  do yourself a favor and read the article about Judge Law.  It is wildly entertaining.  And accurate.)

I've seen judges make rulings or implement policies that I thought were dead wrong -- sometimes infuriatingly so.  I've seen them bend over backward to interpret the law in a way that suited their agenda -- often cruelly so.  

But I can honestly say that I've never seen a judge quite like Judge Ramona Franklin of the 338th District Court of Harris County, Texas.


I first met now-Judge Franklin when she and I both worked at the Harris County District Attorney's Office.  I had a three-year headstart on her at the Office, and we never worked together in the same court.  I knew her to say "hello" but she didn't seem to socialize that much.  She was a prosecutor for a few years, but if I recall correctly, she had left the Office before I did.  I don't recall hearing anything negative in particular about her during her tenure.

She became a defense attorney before I did, and that job can be rather nomadic by nature.  That's not unusual. Unless you represent co-defendants on a case, there isn't a lot of teamwork on this side of the law.  I never heard anything negative about her as a defense attorney, either.

I've only personally appeared before her once or twice since she was elected to the 338th bench in 2016.  Those times were brief but pleasant.  She was friendly and nothing was out of the ordinary.  

I bring all of this up because I want to stress that I have had no negative interactions with Judge Franklin since I've known her.  Although she and I are not friends, we certainly are not enemies, and nothing that I'm about to write is born out of a personal issue that I have with her.  I've criticized many a person on this blog over the past thirteen years and I feel (at least, I hope) that I've always been transparent when those criticisms arose from a personal issue.

This isn't one of those situations.  I want you to know that.

It goes without saying that the standard operating procedures for courtrooms around the country were thrown out the window in 2020 as the Covid-19 crisis took effect.  Things that we took for granted -- like walking into a courtroom to observe the proceedings, for instance -- suddenly disappeared in favor of safety protocols designed to keep from further spreading the virus.  

Over the past year, the System has adapted as best it could.  Courts have waived appearances for defendants accused of crimes in the majority of cases and settings.  Attorneys have the option of using Zoom video conferences for making appearances.  Courtroom proceedings are viewable on publicly accessible channels on the Internet.  

In the beginning, attorneys were free to attend court in person if they wanted to risk their own possible exposure to the virus.  Some did.  Many didn't.  The majority of the judges worked to set bonds that defendants could make and subsequently waived the requirement of appearance for those defendants who weren't in custody.  Some were required to appear by Zoom.  Others did not have to appear at all as long as their attorney was there on the client's behalf (either personally or by Zoom).  Much to the dismay of many zealous Law & Order-types, the general theme was to get as many defendants with pending cases out of jail and out of the courthouse to prevent further spread of the virus.

Inexplicably, Judge Franklin continued to go in the opposite direction.  While her brethren and sistren in the judiciary were trying to find ways to lower bonds to reduce the jail population, Judge Franklin was looking for ways to get defendants who had already posted bond taken back into custody.  

In an August 28, 2020 article in the Houston Chronicle, reporters Samantha Ketterer and St. John Barned-Smith wrote of judicial complaints made against Judge Franklin for the practice, citing two specific incidents where defendants who had paid bonding companies a non-refundable fee to post their bonds had those bonds revoked by Franklin following one of her "bond reviews."  In these instances, the defendant was taken into custody, despite having made bond and appearing in court as required.  The bonding company got their money back, but the bonding company was under no obligation whatsoever to return the fee paid to it by the defendant.  No circumstances had changed since the initial bond had been set, other than Judge Franklin whimsically deciding it wasn't enough.

There's a really big problem with that, however.  

Judge Franklin wasn't following the Code of Criminal Procedure by raising and revoking those bonds.  A defendant is entitled to a hearing before that can happen, and they are entitled to advanced notice of that hearing.  An attorney knows that and would fight for that right.  Unfortunately, as noted in the article, Judge Franklin was revoking those bonds on at least some of those defendants without their attorneys being present.

From the article:
Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.

Apparently, Judge Franklin missed the Due Process Clause of the 5th Amendment, which states that no person "shall be deprived of life, liberty or property, without due process of law."  Taking a person into custody on a bond revocation without the benefit of a hearing with notice is violating that person's right to Due Process.  A defendant probably doesn't know that off the top of his head though, does he?  Maybe that's the reason that the 6th Amendment has that guarantee of a lawyer that every American who has ever watched a police drama on television knows about.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Judge Franklin revoking and raising bonds on Defendants is the one-two punch of Constitutional violations.  Unfortunately, we are just getting started with the Star Chamber she is running in the 338th District Court.

Remember how I mentioned that courts in Harris County and around the state have live-streamed internet channels of daily proceedings?   Well, the 338th has the channel but made the notable decision not to turn it on.  Want to know what Judge Ramona Franklin is doing in her courtroom?  Is she following the Constitution of the United States and the laws and procedures of Texas?  Is she strong-arming defendants into pleading guilty?  Is she interrogating them without their lawyers present?  Is she having them arrested because she doesn't like their attitude?

Who knows?  She's turned her camera off.  We'll get back to that issue in a moment.

As reported in an article by Samantha Ketterer in the Houston Chronicle this week, the crisis in the 338th came to a head again on Thursday, April 29th.  I know that Samantha's article is behind a paywall, so if you don't have a Chronicle subscription, I'll tell you what happened.  I was tangentially involved due to my role as the current leader of the Harris County Criminal Lawyers' Association's Strike Force.  For those of you who are not familiar, the Strike Force, in addition to having a very cool name (that I didn't select by the way, but I totally would have if I had been the first person to ever lead it), is a group of volunteers within HCCLA who respond when an attorney finds himself in jeopardy with a judge.

As reported in the Chronicle, the attorney in need of Strike Force assistance this week was Clay Conrad.  The judge he needed assistance with was Judge Ramona Franklin.

The preceding week, Conrad had a client charged with the State Jail Felony charge of Retail Theft.  For those of you who don't practice criminal law, a State Jail Felony is the lowest level of felony in the State of Texas.  It is punishable by a maximum of 2 years in State Jail.  His client also had no previous criminal history and was out on a $1500 bond.  The client was ordered to appear before Judge Franklin and Conrad was prepared to accompany his client to court.

Then a not-so-funny thing happened.

The 338th District Court staff told him that, per Judge Franklin's orders, he would not be allowed to enter the courtroom with his client.  Per Judge Franklin's Covid protocols, the defendant must be present, but the defense attorney was forbidden from entering.

Conrad was told that he could appear by Zoom, and that would satisfy the defendant's right to counsel.  Conrad told the court that was unacceptable and that he would need to have the ability to stand side-by-side with his client in open court like any good lawyer would.  An attorney watching a client appear before a judge while he or she observes through Zoom is the equivalent of having no attorney present at all.  The defendant can't ask a private question.  The attorney cannot give privileged advice without it being audible to the judge, the prosecutors, and the audience.  

Knowing Judge Franklin's proclivity toward having spontaneous "bond review" hearings, it was even more vital that Conrad stand side-by-side with his client in open court -- far more so than it would be in other courts that take Due Process more seriously.

Conrad and his client were put at the end of the line on cases called before the judge that day.  Ultimately, he was told that he could file a brief as to why he should be allowed in the courtroom with his client.  Judge Franklin informed him the brief couldn't be any longer than 4 pages.  He was told to return to court on April 29th.  He wrote his brief.  He came back on the 29th.  

The HCCLA Stike Force came with him.


Clay Conrad (right front) and the Strike Force


So did Samantha Ketterer, who had been made aware of what was happening.  Ketterer asked the court if she could enter the courtroom to observe the proceedings, and was denied entry by the bailiff, on orders of the judge.  Ketterer followed up by asking if she would be able to watch the live feed on the internet as was possible with all other courts.  As per usual, the live stream of the 338th was turned off so that the actions of the court were visible to no one other than those inside or the attorneys admitted for a Zoom hearing.

Conrad asked whether or not he would be allowed to enter with his client, and he was told that he would not.  He must attend by Zoom.  Conrad told them that he did not have the ability to Zoom with his phone and that he did not have a computer with him.  In the meantime, Strike Force ninja Kate Ferrell reached out to personnel she hoped might have some sway over Judge Franklin regarding that live feed.  Without going into the details of those conversations, the response was swift and urgent. Approximately an hour later, the feed to the 338th District Courtroom was suddenly active.

Once the feed was live, it was watched by criminal defense attorneys around the State.  Conrad's issues with Judge Franklin had also been conveyed to the Texas Criminal Defense Lawyers' Association, which was also monitoring the situation.

As she had the previous week, Judge Franklin called on Conrad's client dead last out of all the defendants on the docket that day.  At approximately 1:30 p.m. (docket had started at 10:30 for bond cases), Franklin relented and allowed Conrad to enter the courtroom with his client . . .

. . . where they immediately held a "bond review."  The State of Texas, by and through her Assistant District Attorney, moved to raise the bond on this dastardly first offender charged with a State Jail Felony to $3,000.  I don't know specifically which prosecutor it was, but, seriously???  A prosecutor, who clearly understood Judge Franklin's tendency to revoke and raise bonds for little to no reason, attempted to have her do just that because . . . he could?  

Conrad objected, citing no notice to the hearing and demanding that his client be afforded her Due Process rights.  Judge Franklin elected not to raise the bond, and after a needlessly painful struggle, Conrad's client was allowed to walk out of the courtroom with her attorney.

Another defendant who had appeared before Judge Franklin that morning had not been so fortunate.  

A 17-year-old defendant, whose mother had paid to have him bonded out, was also ordered to appear before the court that morning.  The mother had not hired an attorney for her son yet.  He was told to enter the courtroom.  The mother was told that she could not.  She sat outside the courtroom with no idea of what was happening with her child.  Sometime later, court personnel came out and told her that her son's bond had been reviewed, revoked, and raised and he had been taken into custody.  The money she had paid to a bonding company had been a waste.  

All of this is just an example of one day in the 338th District Court, Judge Ramona Franklin presiding.   There are many other stories out there.  Many of them have been reported to those who are tasked with monitoring the actions of judges.  As of this writing, no action has been taken.

I realize that, generally, those accused of crimes don't automatically garner a lot of sympathy, especially not in Texas.  Even if that's the case, we should all value the rules that guarantee a fair fight when one is accused of a crime.  Judge Franklin is effectively running a Star Chamber, shrouded in secrecy and devoid of any apparent feelings of obligation about honoring the law and procedure.  Something simply must be done and the powers that be need to stop their hesitancy in acting about it.  This is absolutely an emergency situation.

I know this post is already excruciatingly long, but sadly, there is a lot of content to cover, and there is one additional issue that needs to be addressed.

What in God's name is "progressive" District Attorney Kim Ogg doing by allowing and encouraging her prosecutors to participate in what is happening in the 338th?  Why on Earth is she participating in bond reviews with no notice and without hearings?  As noted in the Chronicle article from August, the appellate court ruled that Judge Franklin could not revoke and raise the bond in one of the cases cited.  That ruling is on hold because Ogg ordered her Office to take that issue up on appeal to a higher court.  In the meantime, prosecutors in the court continue to ask for higher bonds, sometimes apparently (as in Conrad's client's case), just for the hell of it.

Judge Ramona Franklin was re-elected without an opponent in 2020.  She is beginning her fifth month of a brand new, four-year term.

This should scare the hell out of you.  

In the meantime, just pray that you never find yourself accused of a crime before the 338th District Court, Honorable Ramona Franklin presiding.

Wednesday, April 14, 2021

Services and Remembrances for Jordan Lewis


The family and friends of Jordan Lewis have asked me to share the planned events for our friend's services and remembrances and to share their thanks for the outpouring of sympathy during this very sad time.  

Services will be tomorrow, Thursday, April 15th at 1:00 p.m. at Congregation Emanu El in Houston.

Due to Covid restrictions, there are limits to the number of people who can attend Jordan's funeral.  In-person attendees are limited to family and close friends who have been specifically invited by the family.

Jordan's family does want all of his friends to be included, however, and they have made arrangements for the services to be live-streamed.  You can find the link by clicking here.  

Additionally, there is reserved space at Kirby Ice House (3333 Eastside, Houston, TX 77098) at 1:00 p.m., where the funeral services will also be live-streamed.  Drinks and a food truck will be available and masks will be required to attend.  

Services will be ending at approximately 1:45 p.m., at which time Jordan's family will be coming to Kirby Ice House to meet with friends who were unable to attend in person.  They are looking forward to meeting with everyone there and hearing any and all stories you can share about our friend and colleague.

Plans for a scholarship that honors Jordan's legacy of service and devotion to the practice of Criminal Defense are underway.  The family asks that, in lieu of flowers, you please consider donating to that scholarship once it has become established.

Sunday, April 11, 2021

Jordan Lewis

 Our Criminal Justice World was absolutely rocked today to learn of the sudden and unexpected passing of our friend and colleague, Jordan Lewis, at the age of 40.



I honestly don't even know where to begin with what I'm writing here because it seems so surreal to think that he's gone.  

He was my friend, although many knew him far better than I did.  He became a defense attorney in 2008 which was around the time I was wrapping up my career as a prosecutor, so I never dealt with him in an adversarial situation. I'm pretty sure that we first met around that time when we were both single and hanging out at Char Bar.  

Back in those days, the younger lawyers came to hang out and hear war stories from the older lawyers.  He was part of that group.  He was an extremely nice guy.  Fun to hang out with.  He was very earnest about his approach to defending clients.  He was very zealous with his ideals, but he wasn't naive about the way the System treated them.  He was very obviously the attorney who did his homework and wanted to work hard to be the best at what he did.

In the next couple of years, I remarried and had a second child, so I didn't hang out with the old guard at the Char Bar anymore.  I know Jordan got married and had two children, as well.  I didn't see him out and about socially anymore, but I'd see him at the CJC regularly and we'd always stop and talk for a minute.  

Jordan was always on the move in the profession.  As I mentioned, he did his homework and he worked hard.  He zeroed in on the laws and the procedures governing Driving While Intoxication offenses.  He challenged accepted protocols and he made a name for himself.  It seemed that in the blink of an eye, the rookie defense attorney that I met at Char was suddenly a highly respected authority in his field.  

It would have been very easy for him to keep that knowledge to himself as a very profitable source of revenue, but it was important to Jordan to pay forward what he had learned.  He was well known for being a constant resource for attorneys that had questions about anything -- from DWI to financial planning.  He was somebody who was there to help others find their way in a tricky business that he had mastered.  He gave speeches.  He answered phone calls.  He showed up in court when people needed help.

He was, without question, one of the Good Guys.

Facebook and the HCCLA Listserve have been filled today with heartbroken tributes to a good man who gave so much of himself to so many other people.  Our hearts are heavy with grief for a young father and husband with so much professional talent.  He was well-known and very loved by his CJC family and we are devastated for what his family is going through.

You will be missed, Jordan.



Tuesday, February 9, 2021

Kirby Taylor



The Harris County Criminal Justice world was heartbroken to learn of the unexpected passing of longtime defense attorney Kirby Taylor this week.  

Most of us have known Kirby since starting our careers in the CJC world.  I remember meeting him as a baby prosecutor back in 1999.  To use the term "universally beloved" would be a very appropriate way to describe this dear, sweet man.  He was kind and friendly to all and everyone that I know found him to be one of the most endearing people at the courthouse.

He was a lawyer who handled the most serious of cases with compassion coupled with common sense.  He fought hard for his clients with credibility and honesty that worked well for him in his practice.

If you ever met Kirby, you doubtlessly knew of his trademark "crazy socks" that became his calling card.  Regardless of whether he was wearing a three-piece suit or casual clothes, he was guaranteed to be wearing socks that could potentially zap your retinas.  He also carried with him the largest wallet I've ever seen in my entire life.  It wasn't filled with money (he once showed me) but with receipts, notes, cards, and other things.  It resembled a large rock and was held together with rubber bands.

Several years ago, he and his son were the victims of a horrific act of violence that left Kirby both physically and emotionally scarred for life.  If there was anything positive that came from that tragedy, it was the opportunity for our CJC community to let Kirby know how much we all loved him and hurt for him.  He came back from that tragedy and returned to the courthouse.  He was the same sweet man that he had always been, but there was a sadness with him that never left.

He still smiled and laughed that distinctive laugh of his, but it was different.  It was impossible to see him without feeling somewhat emotional about what he had suffered through.

It goes without saying that all of us will miss Kirby Taylor.  He was definitely a giant (both physically and metaphorically) of the CJC.  I'll miss his laugh and his smile, but most of all, I will miss the kindness that he showed to everyone he met on a daily basis.

It has been suggested to me that maybe we wear our craziest socks in honor of Kirby.  So, this Friday, wear them if you got them.  Kirby would have gotten a good laugh at that.  

Rest in Peace, Old Friend.


Tuesday, February 2, 2021

The Perils of Zooming

 Since I felt it was appropriate to make my critiques and observations about others' Zoom behavior in this post last May, I felt it would only be fair to tell on myself for something that happened this morning . . . 

If you are reading this blog and don't know me personally, then you may or may not have picked up on the fact that I like to mess with people.  99% of the time, the people that I harass or tease are my friends and it is all good-natured.  I was known for pulling practical jokes when I was a prosecutor and I still like to do them when the opportunity presents itself.

Because of this, I am keenly aware of the fact that I have a very large target on my back for retaliation at any given moment.  It's kind of like surfing on a giant wave, and knowing that you are eventually going to wipe out at some point.  I strive on a daily basis to avoid giving some of my more frequent targets any ammunition to get back at me.  Some days, I'm more successful than others.  

As per usual, for New Year's this year, I decided to try to lose some weight and get into something that could loosely be described as being in shape.  I keep hearing about the "Dad Bod," and have decided that I would be lucky to get to that point with some effort.  I'm pushing 50 years old, so I'm trying to manage my expectations.

I bought a Peloton last year and I've got some free weights in the playroom/home office.  I quit drinking beer at the house and I'm trying to lay off the desserts.  I made it through the first month of the year okay.  None of it is very pretty to watch, and I will not be joining the ranks of people posting "gym photos" to document their exercise progress.  

This morning, I'm working from home with a couple of courts that I need to appear in via Zoom.  My first stop was in the 182nd, where I had a brief conference with Judge Lacayo and the prosecutors before resetting the case.  I texted the prosecutor I was working with for my next case of the day and she said that she needed about five minutes before logging on in the next court.

So, I decided to do a couple of reps with the free weights.  

To be clear, this is not a pretty picture.  The weight isn't particularly much.  My form is probably terrible.  I'm overweight.  The overall picture is not good.  

But dammit, I'm working on it.

I go hit my weights and struggle through a quick set before docket.  I then set the weights down and start to go back my computer . . .

. . . and that's when I see the little green light that indicates my computer's video was on.

My heart rate goes up.  I wasn't sweating before, but I'm starting to now.  

I had opened up the District Clerk's website to look up a reset date for another client, but that wouldn't have slowed down the camera from working.

I was faced with the terrifying idea that I had not completely logged out of the 182nd Zoom Courtroom and just performed my very sad efforts at exercising in front of Judge Lacayo and staff, Casey Little, Missy Wheeler, and all the defendants logged in for courts this morning.

Y'all, I thought I was going to throw up.  Seriously.  I thought my day of reckoning for all of the practical jokes and smart ass comments had finally come to pass.

I rushed back to my computer -- for some reason, moving to the side in an attempt to be off-camera as if the damage wasn't already done -- and closed the clerk's website.  

I was expecting to see the entirety of the 182nd courtroom staring back at me.

But, fortunately, I live to fight my practical joke war with humanity for another day.  I had apparently opened Facetime on my computer at some point, but mercifully, had not actually called somebody.  My ugly exercise routine had remained private.

I was fully prepared to fake my death and move to another country, otherwise.