Scapegoating the Judges

When I was growing up in Bryan (which was a far smaller town in the 1970s than it is now), I was brought up under the belief that judges were the closest thing to nobility that a small Texas town had to offer.  We only had one District Court Judge in Brazos County back then (compared to the whopping three, count 'em, THREE that Brazos has now), and he was a family friend.  When our families socialized, Judge McDonald was treated with a little more reverence by us kids because of the fact that he was a judge.

[On a personal side note, Judge W.T. "Tommy" McDonald passed away this past year.  He was a dear, sweet man who was always very kind to me growing up and he kept up with my legal career from law school on forward.  He meant a lot to our family and he is very missed.  He deserved all of the love and respect that he received.]

After 22 years of being a lawyer, I recognize that judges are a little more fallible than I was raised to believe.  As any practicing lawyer can tell you, some judges are amazing and worthy of having a courthouse named after them.  A good judge follows the law and the rules of evidence, regardless of how unpopular the results might be.  Intelligence, bravery, humility and selflessness are hallmarks of being a good judge -- even if the results get you unelected by a fickle electorate. 

Not all judges live up to that standard.  I don't know a lawyer alive that couldn't spend hours telling a story about a judge or two, or five, or ten, that he or she deemed to be crazy.  

Judges are fallible just like the rest of us.  They make right calls.  They make wrong calls.  Their very job description calls upon them to hear one case at a time and make rulings based on the law and evidence as it applies directly to that one case.  By definition of the adversarial system, when two sides appear before a judge, one is likely to walk away from the experience feeling more disappointed than the other.  Maybe that results in the judge being complained about, a ruling being appealed, or even a grievance being filed. 

But while judges are certainly not perfect and are often criticized,  I have never seen the level of animosity currently being leveled at the judiciary as a whole as I am seeing in Harris County right now.  If it weren't so incredibly misguided, it would be almost comical.  For the past year, everyone from the District Attorney to the media to the Legislature has decided that the current batch of Criminal Court judges are apparently the single biggest cause of violent crime in the City of Houston.  

These 22 District Court and 16 County Court Judges aren't public officials trying to navigate an unprecedented pandemic crisis.  They are obviously all crime bosses trying to cause chaos in the streets by steadfastly refusing to go to trial and just releasing bloodthirsty criminals into the street as an alternative, right?  At a minimum, they've all shut down their courts and have refused to come to work, leading all of these violent offenders to be released on PR bonds so they could go kill again, haven't they?  Haven't they stopped having trials because they are lazy or too scared to risk coronavirus?  At least, that part is true, isn't it?

That's what we keep hearing if you watch the local news.

But the reality is that the behavior of the Judges during the Pandemic is actually quite the opposite.  From the onset in the spring of 2020, the Judges had to step into the fray quickly and efficiently as they were called upon to balance public safety against the constitutional rights of people accused of crimes.  It was a task that they had some level of familiarity with, having navigated a courthouse shut down due to Hurricane Harvey, but Hurricane Harvey would ultimately prove to be only a light dress rehearsal for the full-fledged crisis that Covid-19 has proven to be.

While the majority of defense attorneys and prosecutors shifted to Zoom appearances as quickly as possible, the vast majority of the judges in Harris County were still going into their courtrooms in person.  They had the option of designating their home addresses as temporary "courthouses" so that they too could Zoom from home, too, but unlike prosecutors and defense attorneys, those home addresses would have become publicly available.   Not to mention, all of those defendants in custody were at the courthouse.

So, it's kind of funny to me when I see posts like this one on Harris County District Attorney Kim Ogg's Facebook page:

But, what do you expect from somebody with a "Trump Won" avatar surrounded by a circle that says "I Stand for Medical Freedom" and "#StopTheMandate"?  I'm sure she probably wasn't really interested in the truth behind the job a bunch of Democratic judges have been doing.  Luckily, there are people down at the courthouse who know the truth of the matter and will stand up for the maligned judges, right?  Like perhaps, Dane Schiller, the spokesperson for fellow Democrat Kim Ogg, for instance.

Okay, never mind.

The sad thing is that the media is all over it, regardless of the truth of the matter.  Back in July, Judge Brian Warren held capital murder suspect Xavier Davis at No Bond on two out of his five cases pending in Judge Warren's court.  On the remaining cases, he set bail amounts that totaled well over half a million dollars -- no that it mattered, since the two No Bonds meant Mr. Davis wasn't going to be bonding at all.  That logic seemed to be lost on Channel 13's Jessica Willey who filed this article, arguing how offensive it was that Judge Warren had set a bond at all.

That's kind of like arguing that infinity plus half a million isn't a sufficiently high bond.  

The reality of the matter is that any "spike" in crime statistics coupled with a lack of cases being taken tp trial is the result of many factors -- the least of which, in fact, is the actions of the Harris County Judges.  If the media bothered to do a little investigation, instead of trying to push alarming headlines, one might inadvertently come to the conclusion that, for the most part, the judges are actually doing a pretty good damn job under the circumstances.

So, who or what is actually to blame?  Lots of things.  Let's look at (what should be) the obvious ones.

1.  Covid-19 -- It is absolutely astounding to me that critics of the judges act as if, for no particular reason, one day last spring, the judges all decided to stop trying cases and began letting people out on low bonds.  Attacks from critics seem to be ignoring the pandemic in the room.  If Covid-19 changed everything around the world, I don't know why anyone would think that the Harris County criminal justice system would be immune from having to change as well.  Judges, who have the power to order human beings (defendants, attorneys, witnesses, and jurors to name a few) into their courtroom, had to decide whether or not they should do so.  

On the misdemeanor side of things, this would seem to be a no brainer.  The most serious of all misdemeanor cases carries a maximum punishment of one year.  It's difficult to justify making a person come to court and risk a potentially fatal disease for a relatively minor case.  On the felony side, the judges recognized that although they dealt with serious cases, many of the settings they held were not important.   Cutting out personal appearances was something that wasn't common prior to the docket but they took the bold (and, in my opinion, smart) move of waiving appearances.

And as for jury trials?  If you don't feel much sympathy for a defendant who is called upon to show up for court (because, you know that whole "innocent until proven guilty" phrase is just a meaningless phrase to pay lip-service to when we're in grade school, right?) how about citizens called for jury duty?  That hits a little closer to home, doesn't it?  For all of those falsely claiming that judges haven't been holding court, how do you feel about coming down to NRG with a several hundred folks from all over the county who may or may not be vaccinated and/or infected?

2.  Jail Overcrowding --  For all of those screaming about judges releasing violent offenders on bond, I'd like you to offer your suggestion on where to put all of these individuals that you want off the street.  The Harris County Jail seems to have a capacity to house somewhere between 9,000 to 10,000 people (based on my amateur reading of the Harris County Sheriff's Office web page.  In this article written by Nicole Hensley, Sammantha Kettererer and other staff writers for the Houston Chronicle on July 9th, 2021, the authors noted that in 2020 alone, 89,600 people were charged with felony or misdemeanor cases.  I'm no mathematician, but if the judges were to keep them all in jail, we would need at least 8 more jails for starters.

Simple math dictates that not everyone charged with a crime will be staying in custody.  Considering the fact that keeping thousands of people incarcerated in close proximity is like pouring gasoline on a fire when it comes to the spread of Covid, one has to recognize that there was some level of urgency to reduce the population if possible.

The judges had to set bonds and in many cases give personal recognizance bonds to help alleviate the crowds.  With juries slowed down to a trickle (if not a complete stop), cases were coming in but they weren't moving out.  Something had to be done.

3.  The Bonding Industry --  Without getting too far out in the weeds here (hopefully), the settlement from the Federal lawsuit over misdemeanor bail bonds almost completely wiped out the need for a bail bonding company for people charged with misdemeanors.  If you were a bonding company, that's the erasure of probably at least half of your business.  Some adjustments are going to have to be made to the business model, and that means being more flexible on the felony bonds you hope to make.

It used to be the conventional wisdom that a bonding company required 10% of the overall bond from the defendant before posting.  Now, I'm hearing stories of bonding companies only requiring 5% or less.  They are also more flexible with payment plans and what they require down.  So, if you are reading a news article that talks about how some teenaged gang member made a six-figure bond, you should probably know that there's a bonding company bending over backwards to stay in business that probably helped facilitate that far more than a judge did.

Side Note:  In the case referenced in the above link, Judge Ana Martinez was criticized for setting a bond of $750,000 for Robert Soliz, who was charged with killing a police officer in a road rage incident (the officer was not on duty or in uniform based on my understanding). The criticism was completely unwarranted for several reasons.  First of all, Judge Martinez's predecessor, Randy Roll, set that bond prior to leaving the bench.  Second, $750,000 for a non-capital murder bond is incredibly high.  When I was a prosecutor, the standard bond for murder was $50,000 just to give you a frame of reference.

4.  The Prosecution --  One of the things that I've been genuinely surprised by during the pandemic has been Democratic District Attorney Kim Ogg's unabashed willingness to blame all of the problems in the Harris County Criminal Justice System on her fellow Democrats in the judiciary.  In addition to Dane Schiller's comments on Facebook (posted above), one of Ogg's representatives recently spoke at a local meeting of Democrats and literally uttered the words "Blame the judges!" when she was fielding questions about crimes being committed by offenders out on bond.  

I mean, Ogg has always been a solid pitcher when somebody needs to be thrown under a bus, but her war on the judiciary has been absolutely unabashed.  Given her prominence in the Democratic Party, I'm surprised by her utter lack of loyalty.  She doesn't even try to soft-sell the issue by pointing out the extraordinary conditions caused by Covid.

To make matters worse, Ogg is conveniently sidestepping her Office's own involvement in the problem.  For a great many months (maybe even a year, I'm not sure), the D.A.'s Office didn't send prosecutors to daily dockets.  I'm not faulting that.  She has a duty to look after her employees' safety, but the lack of prosecutors in court was most definitely a contributing factor to cases not being worked out (and thus contributing to the backlog).  

And a lot of the proseutors haven't been exactly stellar about being responsive to e-mails and discovery requests in the downtime, either.  Not all of them.  But a lot of them.  None who live in my neighborhood.  Just saying.   Let's move on.

Oh, and by the way, for those of you outraged that a judge would give a repeat offender yet another bond even on a violent offense, you may want to know that prosecutors have to file a motion in non-capital cases to hold a defendant at no bond.   If that motion gets filed, the defendant is entitled to a hearing on it.  The judge doesn't get to just hold someone at no bond without those steps being made.  

So the next time Kim Ogg or Dane Schiller (or some other surrogate of Ogg's campaign machine that she employs at the D.A.'s Office with taxpayer money) says "blame the judges" when a repeat offender gets a new bond, it might behoove the media to ask whether or not the D.A.'s Office filed a Motion to Deny Bond that the judge overruled.  It makes a difference and the truth matters.  At least it matters to people other than Kim Ogg.

5.  The Defense --  I would not be intellectually honest if I didn't acknowledge that the Defense Bar plays a role in some of the delay associated with the Criminal Justice System and the Pandemic. Of course, that's actually part of our job description and we wouldn't be effective lawyers if we weren't doing everything we legally could on behalf of our clients -- regardless of how unpopular it makes us with the general population.  

I'll fight tooth and nail to keep from picking a jury at NRG Stadium because I don't believe that it can be done effectively.  If that means my client stays out on bond while I continue to delay going to trial, I'm fine with that.  I love going to trial and I think anyone would be hard pressed to label me as a trial dodger in normal times, but I wouldn't be doing my job by agreeing to do something that I think keeps my client from receiving a fair trial.  I'll file every motion for continuance based on Covid that I can.  I'll file every written objection to NRG on every case. 

Some judges have granted my motions.  Others haven't.  All have considered them, which is what they are supposed to do, because they're judges.  If they agree that a fair trial can't happen during Covid, they are bound by duty not to proceed with one, no matter how much it pisses off the general public.

I'll do everything within my legal means to keep my clients out on bond.  If that makes you angry as a citizen, that's cool.  I understand.  It's part of my job.  But if you're charged with a crime, you're probably going to want to call me.

6.  The Police --  I was amused to see former Houston Police Department Chief Art Acevedo kissing up to Kim Ogg on Twitter the other day -- especially when a primary cause for delays in discovery (which subsequently delays the resolution of cases) is the police.  Although I'm told that the situataion has drastically improved in the past few weeks, under Acevedo's tenure, defense attorneys were told that we had to wait for six months before we could even ask for an officer's body-worn cameras from HPD.  Offense reports and evidence are slow in coming, and that contributes to the slowdown, as well.

Defense attorneys have a duty to review all the evidence and if it hasn't been turned over by the police, we can't do that.

There are more factors involved in the rise of crime during Covid and we could spend hours and hours discussing things like desperation and socio-economic status during times of crisis.  Crime rises during times like these, historically.  I've listed six factors other than the judiciary.

Here's the big difference between these factors and the judges:  the rest of us can defend ourselves when attacked by the media.  Judges are bound by judicial canons on what they can and can't say when responding to questions like, "Why did you set a bond on this case?"  They are literally forbidden from commenting on matters pending before them.  That makes them an easy target for the media, Republicans seeking to re-establish a foothold in Harris County, the police, anti-crime activists, and a shameless District Attorney.

As I said in the beginning, the judges are not infallible and none of them possess a crystal ball that will tell them whether or not a defendant will commit a violent offense while out on crime.  I've seen firsthand the reaction of several judges when they learned that someone out on bond committed a crime of violence -- and in some instances, killed someone -- while out on bond in that judge's court.   I've yet to see one of those judges take it lightly.  In the cases where a fatality was involved, they've been devastated.  Anyone who portrays them as throwing caution to the wind or not caring about the ramifications of their decisions simply hasn't been in the courtroom.

On this coming Monday, I'll hit my 22 year anniversary of practicing criminal law in Harris County, Texas.  The past year and a half under Covid conditions have been like nothing I've ever seen (and that includes two hurricanes and a tropical storm).   There have been many ideas and counter-ideas.  Some I've agreed with and some I haven't.  Throughout it all, the judges have done their best to manage all of the competing interests and keep the Constitution and the laws and procedures of the United States and Texas protected.  They've worked their asses off, only to be slammed at every turn.  

The reality is that the majority of the judges deserve to be commended, rather than condemned.

The Delta Walkback

 It's been a little over a month now since the CJC started to slowly move its way back to some level of normalcy in the wake of the Covid Crisis.  Lawyers are regularly appearing in court in person.  Defendants are showing up with increased frequency (although the vast majority of courts have mercifully reduced the requirement for in-person appearances).  Prosecutors are back in the courtroom and I'll even give Harris County District Attorney Kim Ogg credit for sending senior prosecutors from specialized divisions into the trial courts to help work out the docket -- that is helping quite a bit, actually.  Cases set for trial come with an admonishment from the judge that the trial date is real, as opposed to the aspirational dates we've been getting for the past year or so.

Zoom started to fade out in many courts.  In some courts, it is still trickling out.  In others, it's already completely gone.  Apparently maintaining the hybrid of Zoom and in-person lawyer appearances is kind of a pain in the butt for coordinators.  This has resulted in a not-insignificant level of confusion amongst attorneys as they try to keep track of what courts are zooming, which ones allow it, and which ones forbid anything but zooming.  Last week, I walked into a misdemeanor court and was told to walk right on back out and zoom in.  The witness rooms were all taken so I went back to my car in the garage and zoomed in, only to be chastised by the judge for appearing late.   That wasn't frustrating at all.  

But unfortunately, the CJC's declaration of Victory Over Covid now appears to be premature as the Delta variant has emerged.  Obviously, the Delta Variant has NOT rendered the Covid vaccines useless by any stretch of the imagination.  However, as anyone who follows the actual news knows, Delta is infecting the vaccinated and using them as transmitters to continue the spread at a skyrocketing pace.  Fortunately, for those of us who have had the vaccine, the effects of the Delta variant are appearing to be significantly mitigated.  For those who are not vaccinated, however, Covid is just as deadly as it has ever been -- if not more so.

As per usual, Texas is slow to react.  Governor Greg Abbott seems to be in a thus-far-undeclared race for the Republican nomination for President in 2024 by trying to be a bigger lunatic than Florida Governor Ron DeSantis when it comes to refusing to allow mask mandates.  Since there is no mask mandate, the CJC apparently can't order people to put on masks prior to entering the building.  I was in court yesterday, and although there is definitely an increase in people wearing their masks, there was a solid 40% or so who were not.

Today, Bexar County announced that is was suspending jury trials (again) for the time being in response to the rapidly accelerating Delta variant.  It is my guess that other major counties will soon follow suit and/or the Texas Supreme Court will issue another emergency order, suspending jury trials across the State.

Just today, I've had two friends who are defense attorneys tell me that they have Covid (despite their vaccinations) and I've been told of a third friend who tested positive.  Yesterday, District Attorney Kim Ogg announced that she had tested positive despite being vaccinated, and there are rumors of several other people in the Office being positive as well.  The fire has most definitely jumped over the firewall, and the question now becomes how long it will take for the CJC to react accordingly.

I've had multiple two people reach out to me and ask me to blog something, imploring the judges to go back to Zoom dockets and go back ASAP.  So, here you have it.

The Delta variant is scary as hell in general, and deadly terrifying for the unvaccinated.  Sadly, we cannot rely on many dumb asses grown adults to get the vaccine or even wear masks, in some cases.  Continuing to require in-person appearances for anyone - prosecutor, defense attorney, defendant, or court staff, is subjecting people to exposure to a virus that we would inevitably take home and expose our children to.  For those of us with a child too young to be vaccinated, that's a very frightening likelihood.

I know how frustrating this is.  The past month back in the CJC has been fantastic, quite frankly.  I've loved being back.  I love working on cases with prosecutors in the same room.  It has truly been an example of not realizing how you enjoy something until it is taken away from you.  Don't get me wrong, I still stand by my completely awesome DISCO plan, but when all is said and done, I've actually been very happy to be back in that shitty old building for the past month or so.

I don't really want to go back to Zoom dockets, but I don't think there is any other choice under the circumstances.  Hopefully, with some of the new diversionary programs announced by Kim Ogg in June, cases will move with more ease now.  But as long as the Governor refuses to look out for our safety, our only hope at the CJC is that the judges will.

So, on behalf of myself and my multitude two of my blog readers, I hope the judges will consider returning to Zoom as soon as humanly possible.

The New Normal and the Days of DISCO?

I think that it's fair to say that those of us who practice criminal law down at the Harris County Criminal Justice Center on a regular basis are starting to sense a movement towards a return to normalcy these days.  There's an underlying feeling that's similar to riding on an airplane as it begins its initial descent towards the destination or seeing the rain starting to lighten up at the end of a long thunderstorm.  

As more and more people get their vaccines and the number of Covid cases continues to drop, we all have a sense that it is time to get back to business as usual, or at least some semblance of it.  Those of us who have been sitting at our desks and couches, fighting the good fight from the comfort of our homes or offices, will seen be trying to squeeze back into our pre-pandemic courtroom attire and actually traveling down to the CJC again on a routine basis.  For many of us, our in-person appearances are already rising in frequency, and appearing in the rickety old building no longer feels like the dangerous stealth mission into Chernobyl like it felt a year ago.

In many ways, that's a definite positive.  If I never have to go over plea paperwork with a client over the phone again, that will suit me just fine.  Arguing a motion or questioning a witness without having to deal with the staccato in and out of Zoom audio feels like a very exciting benefit that I didn't realize how much I would miss.  Having people ask me how I'm liking working for Cheryl is much funnier in person than over Zoom, and dammit, the best thing by far about going back is seeing our courthouse family again.

But there are several things that we adapted to during the pandemic that are absolutely worth holding onto, even if they are no longer part of a mandatory safety protocol.  We have learned some lessons over the past year or so about what is necessary and what may be not-so-necessary to keep the Criminal Justice World spinning on its axis.  All of it has to be balanced against a stupefyingly tremendous backlog of cases that have accumulated over the pandemic that is going to take years to sort through.  Unlike the aforementioned plane ride or thunderstorm, we are nearing the end of the equivalent of a yearlong hurricane that has left an incomprehensible amount of damage in its wake.

There will have to be a new normal for how we handle cases, and I'm hopeful that the new normal embraces some of the more positive aspects of how we adapted under Covid -- specifically when it comes to Zoom appearances and mandatory in-person appearances for Defendants.

Judges Natalia Cornelio of the 351st District Court and Abigail Anastasio of the 184th District Court have been doing research into the pros and cons and the role of Zoom as things get back to "normal."  They were kind enough to listen to my ideas, and I thought I would share them here on the blog as well.  Let me know what you think.

Prior to the pandemic, it was standard practice in the vast majority of courts that all Defendants charged with crimes personally appeared for every court date they had scheduled.   These settings were, on average, once a month and more often than not involved nothing more than the Defendant signing a reset promising to appear at the next setting.  The settings, especially on the newer cases, were generally pointless because discovery evidence (which prosecutors are required to provide to the defense attorney) wasn't ready yet.  

Without the evidence being available, no meaningful conversation could be had between a prosecutor and a defense attorney and, subsequently, between a defense attorney and his or her client.  The client's presence in the courtroom (and the already overcrowded Criminal Justice Center) was completely unnecessary -- and often counterproductive.  Defendants (who were sometimes required to maintain employment as a condition of remaining on bond) had to take off work, fight the crowds coming into Downtown and into the building, and sit there for a couple of hours waiting for their attorney to arrive.  All of this so that they could sign a reset promising to do the same thing again in a month.

Under the pandemic, all of the courts waived in-person appearances unless there was something that fundamentally required the Defendant's presence.  If a Defendant needed to acknowledge and sign bond conditions, for instance, he or she may have been required to appear.  If the Defendant was alleged to have a violation of a bond condition or needed to be present for a hearing on his or her case, it was understandably necessary for that Defendant to show up in court.

But all of those monthly status checks no longer required the Defendant to show up.  The result was a significantly less crowded building and there is no reason that needs to change.

Proposal # 1 -- No unnecessary in-person appearances by Defendants required until the completion of Discovery Exchange

Since nothing meaningful can be accomplished without discovery being completely turned over, it is both silly and oppressive to make Defendants who are out on bond to appear just to sign a reset.  It literally accomplishes nothing.  With the exception of a first appearance after bonding out to sign bond conditions, they shouldn't have to come back just because the State of Texas is running behind on Discovery.

Prosecutors (and some judges) like Defendants to have to appear in person, unfortunately.  The reason for it has little to do with Justice, however.  They know that a Defendant who ain't there can't resolve his or her case.  That Defendant won't be there to hear the totally awesome plea bargain offer that the prosecutor is planning to throw out there.  Who needs to review evidence if the offer is so fantastic, right?  The more appearances that a Defendant is required to make, the more his or her resolve to fight his case will fade.  Hopefully, they will take the time served offer just to get their employer to quit complaining about them missing work.

It shouldn't be that way.  Right now, the discovery process is painfully slow.  As I've mentioned before, the Houston Police Department doesn't even consider expediting turning over footage from Body Worn Cameras until six months after the arrest.  The backlog seems to be growing exponentially, and that slows things down more and more.  There is no articulable reason that the Defendant should be the person who has to pay the price for the delay.

The presumption should be that unless there is a specific need for the Defendant to be in court, the Defense Attorney's appearance should suffice.

Proposal # 2 --  The Age of Disco(very Compliance) Settings

For those of you who don't practice criminal law in Harris County, you may not know that the types of court settings we have carry names.  In felony cases, the setting is referred to an Arraignment (ARRG) setting prior to the case being indicted by the Grand Jury.  Once the case is indicted, (depending on the court), it moves to a Non-Trial (NTRL) setting.  Depending on how concerned a particular court is, a case may have multiple NTRL settings before moving to the Pre-Trial Conference (PTCR) setting.  This setting is generally when a Court is notifying the State and the Defense that it is time to start talking about either working the case out or setting it for trial.  There may be several of these settings too, depending on the court.

After PTCR comes a Jury Trial (JTRL) or Court Trial (CTRL) setting.  Sometimes there may be a Pre-Trial Motions (PTMO) setting if there are some legal issues that need to be resolved before trial day.

My proposal is that after the ARRG setting, the court settings become Discovery Compliance rather than NTRL.  And, as I mentioned to Judge Cornelio, we'd be missing a huge opportunity if we didn't give them the code letters of DISCO.  

While the title of a setting may not seem like that big of a deal in the big scheme of things, this new name could actually prove to be helpful.  Judges are known to get antsy about cases getting older, but if a quick glance at the docket sheet shows that it's the 5th DISCO setting, the picture becomes quite clear on what the hold up is and who is responsible for it.  There's no reciprocal discovery in the State of Texas, so multiple DISCO settings point a clear finger at who is to blame.  

In my thought process, once Discovery has been completed, the Judge makes a finding that both sides agree that there has been compliance (at least to the best of their knowledge) and the Judge has a clear signal that there is nothing to keep Defense Counsel from rationally discussing the case with his or her client.  At that point, the setting moves to Pre-Trial Conference, which serves, in essence, as a Plea or Trial setting.  If a Pre-Trial Motion needs to happen, that's no problem.  After that, it's trial time.

It streamlines the process, in my opinion.  It also insulates both the Judiciary and the Defense Bar the next time a certain publicity-seeking, blame-shifting elected District Attorney tries to put them on blast as being responsible for the backlog.  Maybe if there are documented entries showing how many DISCO settings are happening on everyone's case, there won't be so much talk of greedy defense attorneys and lazy judges.  Just sayin' . . . 

Proposal # 3 -- Defense Attorneys are allowed (but not required) to use Zoom appearances on all settings prior to Pre-Trial Conference

I ain't gonna lie.  I've enjoy the hell out of Zoom settings when there weren't substantive issues to be addressed in court.  You can get a ton of work done sitting at your desk while waiting to be called upon in a Zoom meeting.  My productivity has increased dramatically during the pandemic and that largely attributed to not having to drive Downtown, fight the elevators and the crowds, and waste my time standing around waiting to approach the judge like I'm waiting on my order to be ready at Dairy Queen.

That translates into better and more effective representation, and that benefits us all.

If an attorney would prefer to appear in person, that's no problem as long as you aren't in the 338th. I would anticipate that after a few months of normalcy, attorneys will find themselves in court more and more often because more cases will have completed Discovery Compliance.  They don't need to appear in person in one court and then speed back to the office to log on and Zoom from their computers.  That would be silly.

So, that's my modest proposal.  Let me know what you think!  Who is ready for the Age of Disco?

Learning the Difference

When I'm explaining the plea bargain process to my clients, I compare it to someone selling a car.  The prosecutor's position is like that of the car owner, and the strengths and weaknesses of the case are akin to the value of the vehicle.  Maybe the car is flawless and in perfect running condition.  Maybe it is a complete lemon.  The same can be said for a case -- although I've seen many more lemons than flawless cases in my time.

But in both scenarios, it is the car owner/prosecutor who is completely in charge of setting the negotiating price.  If the car/case is flawless and powerful, the buyer/defendant can expect high prices with less flexibility.  If, however, the car or the case is not particularly powerful and has engine problems, one might expect that price to be drastically reduced, or for the car to be totally tossed on the scrap pile.

Whether the case is flawless or an utter disaster, one thing remains the same:  the prosecutor has the sole discretion to set the asking price, and the defense attorney and his or her client is powerless to force them to lower or change it.  We can either accept the deal or walk away from the bargaining table and set it for trial.  

It's just that simple.  It always has been and it always will be.

Much like the auto industry, there are good times and there are bad times.  Hurricanes that destroy fragile and poorly built courthouses may inspire a fire sale on cases to help move inventory, for instance.  Non-violent offenders charged with low-level crimes may find themselves receiving plea bargain offers that are significantly more generous than they might receive under normal conditions.  In some cases, a prosecutor may decide that a contested issue on a motion is probably going to go the defendant's way and just agree to it, rather than go to a full hearing.  

It's just the practical thing to do and prosecutors generally understand that, as do defense attorneys, their clients, and judges.  Otherwise, a total backlog would be expected, wouldn't it?  

As this year has proven, unfortunately, a measly hurricane is nothing compared to a global pandemic when it comes to wreaking havoc on the criminal justice system.   In the twenty-one years since I've been practicing criminal law in Harris County, I've seen Tropical Storm Allison and Hurricanes Ike and Harvey deliver devastating blows to the system, including closing the CJC down for months and months.  Each time, the System found some way to adapt and get back up and running in some form or fashion within a month or two.

The effect of the pandemic on the criminal justice system across the country has made hurricanes and other natural disasters seem like a light sprinkle.  With only a handful of exceptions, all jury trials have ceased since March.  

Take a moment to fully appreciate that.  

In Harris County, Texas, jury trials have come to an (almost) complete stop for nine months and counting in 22 Felony District Courts and 16 County Courts at Law.  Hundreds of cases set for trial have been pushed back to a date that has yet to realistically be determined.  In the meantime, all the cases that would have been set for trial since March have been pushed back with faraway trial settings, all lined up behind those cases that were supposed to have been tried this year.  And while those cases were getting set for trial, new cases have come in every single hour of every single day since then.

The full extent of the backlog is almost impossible to comprehend because no one really has any idea of when things are going to return to any semblance of normal.  Sure, you may have a trial court here and there availing itself of the ill-conceived NRG Arena Jury Plan, but those trials have been few and far between, making no dent in the pile-up of cases that Harris County is now experiencing.

The System is collapsing under its own weight.

At the risk of sounding like I'm blowing smoke up the Judiciary's robes, the judges of Harris County, for the most part, have done all they can to keep things moving.  Although they are routinely blasted for the low (or PR) bonds that they've handed out during this crisis, the judges I've been in front of have worked hard to balance public safety with the Constitutional rights provided to Defendants.  They have made judgment calls on those to release on bond and those who need to stay where they are.  Some of those calls have been wrong and have drawn the criticism of many.  That's unavoidable, and in most instances, the criticisms are unfair.  Too many cases are coming in and not enough are being disposed of.  There simply isn't enough room to keep all the people locked up that the critics would like to see locked up.

But one of the byproducts of so many defendants being out on bond is that they have almost no incentive to enter into a plea bargain -- especially if that plea bargain offer involves further incarceration.  

It's a hell of a conundrum if you're a prosecutor.  A prosecutor may be evaluating a case where a defendant has a lengthy criminal history that includes a trip or two (or more) to the Texas Department of Criminal Justice-Institutional Division.  They may have a difficult time bringing themselves to make a plea bargain that doesn't involve another trip to TDCJ.  

Under normal circumstances, that would be fairly easy to resolve.  Hypothetically, let's say that a defendant is facing a punishment range of 25 years to Life on a case because of his or her prior criminal history.  They are sitting in the Harris County Jail, not bonding out and the prosecutor offers them five or ten years. 

Assuming the case-in-chief is strong against the Defendant, that would actually be a bargain.

However, if you are out on bond, enjoying your freedom, the idea of checking back into TDCJ for a 5 or 10 spot probably doesn't sound like much fun, does it?  As a matter of fact, if you are a defendant who is out on bond, there really isn't much incentive to take that offer at all, is there?  Especially if the alternative is setting the case for trial on a date that is to be determined so far down the road that your trial prosecutor might currently still be in law school.

In short, if a defendant is out on bond for his or her case, it's his or her market when it comes to deciding whether or not a plea offer from a prosecutor is worth taking.

Under those circumstances, one might think that the prosecutors would come to the realization that it is time to entirely rethink the plea bargaining process.  Given the breadth and scope of COVID and the current backlog of jury trials, that should be motivating prosecutors to offer deals that make Hurricane Plea Bargains seem Draconian.  

Let's pause real quickly here before my friend Joe Gamaldi's head explodes at what I'm saying.

As I've mentioned several times on this blog, I consider the most profound moment of my legal career to have come during a PSI hearing in front of Judge Caprice Cosper.  It was a tragic case I was trying against my friend Sam Cammack where a couple had left their children unattended for an hour because their work shifts overlapped.  A fire broke out and an infant died.  The pictures were horrifying.  I wanted pen time.  Sam, very eloquently, argued for probation.

As Judge Cosper gave probation, she sternly told me, "Mr. Newman, in this business there are those whom we are scared of and those that we are mad at.  It would behoove you to learn the difference."

I bring that story up now, because it couldn't be a more relevant guide than in this moment.

Under pandemic conditions, prosecutors have got to realize that it is time to focus resources on those offenders that we are actually scared of, and set aside our moral indignation towards scofflaws for the time being.  

Sadly, that hasn't been the case in Harris County.

As newly re-elected District Attorney, Kim Ogg is still experiencing her identity crisis between the world's most progressive prosecutor or the tough-on-crime prosecutor.  The result has been prosecutors fearful of offering a controversial plea bargain that might make Kim Ogg look bad and subsequently incur her wrath.  Keep in mind, all personnel must have their contracts renewed going into Ogg's second term and nobody wants to lose their jobs.  Many prosecutors are making their recommendations as if Wayne Dolcefino was sitting in the audience.

Historically, I've tried to refrain from using this blog to put prosecutors on blast for something that I disagreed with on a case, but damn it gets tempting with some of the absolutely ridiculous offers that have come out of the D.A.'s Office lately.  I've literally set cases for trial based on whether or not a person should be on one probation or two (at the same time).  I've gotten in yelling matches over .1 gram of Ecstacy.  I've had to go to full-blown hearings on issues that should have been agreed upon as clearly settled matters of law.  I've dealt with cases that should have been dismissed on their first setting, only to be told that I can submit a letter to get it No Billed by the Grand Jury.  

I'm not alone in this thought process.  My friend and fellow defense attorney Brian Roberts detailed his frustrations with HCDA prosecutors in this excellent blog post in September.  Our brethren and sistren in the Defense Bar all feel the same way.  And, spoiler alert, so do a lot of the judiciary.

Too many prosecutors are holding onto cases like a group of compulsive hoarders.

Obviously, this doesn't apply to all of the prosecutors.  There are several that are still reasonable and knowledgable and don't consider themselves to be the Ultimate Arbiters of Justice.  They will recognize the cases that need to be dismissed and the cases that should be reduced or offered small punishments.  They are willing to face any internal consequences that they might have to suffer because they aren't afraid to do the right thing.

They are appreciated far more than they will ever know.

I have no doubt that I will get pushback on this post from those who will characterize me as just a liberal-ass defense attorney trying to let all those scumbag clients out.  But it's time to be practical about what is happening.  If the court system is clogged with non-violent offenses, it's going to be blocking the path of all the cases behind them.  The non-violent cases can't just be put on the backburner in perpetuity. 

Victim crimes will stack up behind them.  Victims and their families will have to wait for their days in court far longer than they ever have in the past.  And to what end?  So that somebody with a couple of Ecstacy pills learns the hard way that we should Just Say No to drugs?  

Across every walk of life, our planet has had to drastically adapt to conditions under COVID.  It defies all expectations to think that the Criminal Justice System wouldn't be called to do the same.  

It can be done without losing sight of the Principles of Justice.

It can be done by distinguishing between those we are mad at and those we are scared of.

I learned that lesson from a very wise Judge, and it has made all the difference.

NRG Arena and the Streisand Effect

I enjoy being a defense attorney.

At least on most days.  

It's not always easy -- especially when you find yourself in a jury trial.  

You often find yourself behind the 8 Ball.  Your client is charged with doing something unpopular -- sometimes really really unpopular.  Usually, the evidence is pretty strong against your client, so you're fighting an uphill battle.  In many instances, you find yourself trying to mitigate an outcome rather than avoid it.  When you're a defense attorney, home runs are far and few between.  Quite often, a base hit feels pretty damn good.

If the State asks for Life and you help convince a jury that 20 years is more appropriate, that's a win in most cases.  On those occasions where you get the big NG verdict . . . man, those are something.  If you have never been a defense attorney and you find it unseemly when you see a defense attorney crowing about a Not Guilty in trial, have a little patience.  Those are harder to come by than you might think.

More often than not, the job of a defense attorney is just doing everything in his or her power to ensure a fair trial.

And doing that begins with picking a fair jury.

Now, the idea of "picking" a "fair jury" is a misnomer if ever there was one.  First of all, as any trial lawyer can tell you, juries aren't selected.  Juries are the remnants of a jury panel where numerous potential jurors have been de-selected -- removed from consideration from serving on a jury because they either couldn't follow the law (and are stricken for Cause) or because either the prosecutor or defense attorney utilized one of their peremptory strikes to remove them from the panel.  Once those strikes are done, the first twelve remnants become the jury.  In many cases, the next one or two become alternates.

The art of that de-selection takes some work and brings a lot of dynamics into play.  The attorney (whether he or she is a prosecutor or a defense attorney) needs to be charismatic and convincing as an advocate.  As a defense attorney, you have to be cognizant of the fact that if the jury isn't going to like your client, you better be doing everything you possibly can to make them like you!  But more importantly, an attorney has to identify those potential jurors that are bad and sometimes fatal your case.

One of the few funny things I remember former-District Attorney Chuck Rosenthal ever saying was that if he was only allowed to ask a jury panel one question, it would be:  "How many of y'all came down here today just to f*ck me over?"  I get his point, but in more delicate terms, I've always considered jury selection to be the art of rooting out the time bombs -- finding those jurors who never ever ever were going to even remotely consider the possibility of giving you or your client a fair trial.

As a prosecutor, I ran into the occasional juror who was anti-establishment or had a bad experience with the police and couldn't be fair.  But it is far more prevalent to find jurors who can't be fair to the defense -- those who presume your client must have done something or else there wouldn't be a trial; those who presume that if your client doesn't testify that he must have done something; or those who would never consider probation (even when the law allows it) on a serious case.

As a defense attorney, you've got to find those jurors who are time bombs, identify them on the record, and get them removed from your damn jury.  The trial is going to be tough enough as it is, so it seems only right that you at least start off with a seemingly neutral jury, right?

It is not possible to overemphasize just how important jury selection is and how much goes into it.  An attorney has to ask the right questions, act the right way, read the jurors body language, their facial expressions, and make note of them for when it comes time to make those strikes.  And keep in mind, on felony cases, the lawyers are talking to (usually) 65 potential jurors and they have about thirty minutes to an hour to ask all their questions and get their analysis done.

The reason I bring this up is that I got invited to check out the facilities at NRG Arena today and get a feel for how Harris County plans to select juries in a post-COVID world.  I guess you get fancy invites like this when you do a lot of complaining on your blog like I was doing last Saturday with this post.  I wasn't the only one invited to attend.  Texas Criminal Defense Lawyers' Association President Grant Scheiner and Harris County Criminal Lawyers' Association President Mark Thiessen were there, along with criminal defense attorneys Joe Vinas and Chris Tritico.  The Harris County District Attorney's Office was represented by Colleen Barnett, Paul Fortenberry and Tanisha Manning.

The de facto hosts of the tour were Harris County District Clerk Marilyn Burgess and 152nd District Court Judge Robert Schaffer, who is the Local Administrative District Judge (as I pointed out in my last post).  There were several other representatives of the District Clerk's Office who also hosted and answer questions.  It was quite informative and all of us guests had our cell phones out and taking pictures.  No one seemed to be bothered about us taking the pictures and/or videos.  Why should they be?  As I mentioned in my earlier post, Burgess has already made a YouTube video of what the process would be like, and the Houston Chronicle ran an article with photographs of everything inside on July 6th.

I'll come back to that in a minute.

So, my thoughts on the theoretical process were . . . not positive.

I'm no doctor or epidemiologist, but there were several things that seemed problematic to me.  

For starters, there are two lines leading to two metal detectors for the potential jurors to go through on the way inside.  Each one has those little stickers on the floor to mark appropriate social distancing.

There are about twelve of those little social distancing stickers between the metal detectors and the door in each line, so mathematically, there will be twenty-four people in line in that area.  Everybody else will be lined up outside, waiting to get into the building.  I didn't get a close-up shot of it, but I'm talking about the area under the overhang in front of the building.

There are some signs there that tell people to stay six feet apart, but as of this writing, there isn't anything other than that to ensure social distancing outside the doors.

Once the potential jurors clear the metal detectors, they check in at a kiosk (using those single-finger condoms to register their presence) before going into the main pool room where they will wait to be called into smaller breakout panels.

The potential jurors will then be called out of this area into their panels for trial.  As of right now, there is only one room for actual jury selection that has been built out.  However, we were all told that they are building out this area into three individual rooms for jury selection.  The plan is to have 8 feet high partitions, with drop-down, soundproof "blankets" separating those three rooms.

As it currently stands, only one room is ready, and that's the room profiled in the Houston Chronicle where the Grand Juries were selected a few weeks ago.  The potential jurors who are guided to these rooms will be issued face shields to go over the mandatory masks that they will already be wearing.

Now, this picture doesn't really do the space justice.  It's looking dead on at the center section, although there are two additional sections to the left, and at least one section to the right (maybe two, I don't remember).  If you look closely, you may see little orange markers on every fifth seat, denoting where potential jurors will be seated in accordance with social distance.

If you'll remember, this area needs to accommodate roughly 65 potential jurors on a felony panel, and given the spacing, that takes us up around fifteen rows.  If you look closely, you may see TCDLA President Grant Scheiner raising his hand on that last row.  If you think he's hard to see in this picture, you have no idea how hard he was to hear.

Have no fear, though.  We were told in a meeting the day before that there will be helpers running up and down the aisle with "boom mics" to help us hear what those folks in the cheap seats are saying.

Speaking of what people are saying, Judge Schaffer told us during our tour that jurors would be required to lower their face masks when answering questions, but it would be up to the individual judges as to whether or not they kept their masks up or down during those times when they were not specifically answering questions.  And by the way, everyone (including the attorneys) will be wearing the face shields at all times. 

So, let's take a gander at what this will effectively look like during jury selection.

A lawyer will ask a question of a juror and will need to run up those stairs to engage with them if he or she wants to see the facial expression of the juror when they answer that question,  In the meantime, rows and rows and columns and columns of jurors will be behind that lawyer while he gets the answer from the one he or she has posed the question to.  Making the (wildly presumptive) assumption that the other jurors can even hear the response from the queried juror, it will be utterly impossible to see how the other potential jurors react to that question.

Most lawyers have at least one additional lawyer sit with them during a trial to help them take notes on the panel, but under this system, a lawyer is going to need five to six lawyers sitting with him or her to take notes.  This doesn't even begin to factor in those questions or responses that might draw objections from the opposing side and rulings from the judge.  

Other things not factored in:  the role of interpreters for non-English speaking clients, accommodations for handicap jurors and/or attorneys, time limits, potential visual aids, jury charts, and common sense.

For anyone who has ever picked a jury, it is patently obvious that this set up is absolutely not conducive to effectively picking a jury.  There is no way to see those time bombs.  Not even when they are sitting right behind you. 

Any attorney who willingly agrees to this set up is committing malpractice, in my opinion.

So, here's where things get interesting.

Apparently, the Powers that Be who invited us out to this tour of NRG Arena assumed our reviews would be positive.  As I mentioned above, nobody blinked when we were all taking photographs and videos.  I posted that picture of Grant Scheiner in the back row on Facebook with a semi-sarcastic comment about not being able to hear.

So, I was kind of surprised when I got back home from the tour to receive a message from my answering service reflecting a phone call from Clay Bowman, the District Courts Administrator.

I'd gotten an e-mail from Clay, too.

So, I called Clay back.  He seemed a little nervous and just kept insisting that he was just relaying a message from Judge Schaffer. 

Apparently, that message was that if I didn't have anything nice to say, then I didn't have permission to use a picture of NRG Arena at all.    I responded that I found that pretty confusing in light of the pictures being utilized in the Houston Chronicle article and Marilyn Burgess's YouTube video.  But, those were different.  Those portrayed the use of NRG Energy in a positive light.  Mine did not.

So, I took my picture down and replaced it with a post explaining what had happened.  I think it ended up being a crystal clear example of the Streisand Effect. The reaction to that was far angrier than my original post of Grant in the back row.  I also talked about what happened on Reasonable Doubt.  I heard from several attorneys who expressed their opinion that while filming or photographing a criminal proceeding must be permitted by a judge, a still photo of a bunch of mostly empty seats didn't fall under that description. 

But to be on the safe side, I heard from a few judges on the misdemeanor and felony side of things who were more than happy to give me permission to use my photos, because they believed they promoted the transparency the system needed.  Shout out to Judges Andrew Wright and Brian Warren for the judicial blessings!

And to Judge Schaffer, I'm sorry for the misunderstanding.  I know you and a great many other people are doing the best you can to make this system work.  Respectfully, I just disagree that it will.  I think it puts jurors' health at risk, and I think it will deprive my clients of a fair jury to hear their cases.

I'm sorry to hear that you feel I need permission before I can use a picture of an empty bunch of chairs to express that.

It seems like there are much more important things at stake at the moment.