The Judicial Show Down

As I noted in my blog post earlier this week, things have been pretty chaotic in the Harris County Criminal Justice world.  People don't know where to go or what time (or day, for that matter) to go there.  The attorneys are excited about the appointment of Kristin Guiney to the 232nd District Court, so there has been much talk about that.

Judge Nikita Harmon                   Judge Jim Wallace

But the vast majority of the talk around the Criminal Civil Courthouse this week has centered around a confrontation between two judges that occurred on Monday morning.  The dust-up occurred between Republican Judge Jim Wallace of the 263rd District Court and Democratic Judge Nikita Harmon of the 176th District Court around mid-morning.  As with most courthouse gossip, the original details are a little spotty.  

According to witnesses, Judge Harmon had arrived to the courtroom first and had taken the bench.  Later in the morning, there was a lull in the activity in the courtroom, and Judge Wallace indicated that he needed to take the bench to take some pleas for the 263rd.  The initial reports were that Judge Harmon refused to leave the bench, and that Judge Wallace threatened to have one of his bailiffs arrest her if she didn't leave.  On Monday, there wasn't a lot of clarity about what happened after that.  When I was leaving the courthouse, I heard that Administrative Judge Susan Brown was on her way to mediate the situation.

As I've mentioned before, all of the criminal courts are doubled up and sharing courtrooms in the civil courthouse.  How the different courts are handling working around each other has been left to the individual judges.  In some courtrooms, judges are running both dockets at the same time, with the courtroom filled with both staffs.  Other courts have agreed to split the dockets into morning and afternoon shifts, which also works well, as long as everyone is given advance notice.  Several Defendants and attorneys showed up for morning courts on Monday, only to be told that their dockets weren't being held until the afternoon.

Apparently this docket confusion played a large role in the conflict.

Last week, as the courts were moving from the wrecked Criminal Justice Center to the Civil Courts, Judge Wallace was on a pre-planned vacation out of the country.  As courts were being paired up and dockets organized, he was unavailable to submit his preferences for when his docket would be held.  A preliminary schedule released by the Harris County Criminal District Courts' Facebook page on Saturday, September 9th left the 263rd docket time blank.

I spoke with Judge Wallace this afternoon, who told me that when his court staff and Judge Harmon's court staff were moving into the shared court on Friday, Judge Harmon's staff stated that they were going to claim the morning docket.  Judge Wallace stated that no one from his staff agreed to this and an argument ensued.

By Monday, September 11th, an official schedule was provided by District Clerk Chris Daniel, telling people where the new courts were meeting and when.

Accordingly, Judges Wallace and Harmon were scheduled to be sharing a courtroom for a morning docket as of Monday, September 11th.

According to all accounts I've heard, Judge Harmon was first to take the Bench on Monday morning, and had been presiding well over an hour before this incident took place.  All accounts that I've heard also indicate that Judge Wallace had several Defendants waiting to plead in his court, and that there was a lull in activity for Judge Harmon.

Judge Wallace said that at approximately 11 a.m., he entered the courtroom and approached Judge Harmon, indicating he wanted to take the Bench to take the pleas for his court.  He stated that his bailiff was with him as he approached, and that Judge Harmon became angry.  Judge Wallace said that Judge Harmon told him: "You're not going to tell me to get off my bench."

Judge Wallace said that when it became clear that Judge Harmon had no intention of leaving the Bench, he said: "You could be arrested for impeding courtroom proceedings."  He stated that he then left the courtroom to ask Judge Brown to resolve the conflict.  Judge Wallace adamantly denies ever raising his voice or ordering his bailiff to arrest Judge Harmon.

Judge Wallace said that Judge Harmon remained on the bench for some time, but got up to leave.  He said at that time, his staff tried to take the awaiting pleas, but that Judge Harmon's staff refused to leave.  Judge Wallace said that although he has not been back to the courtroom since, his staff has reported additional problems with the 176th.  Judge Wallace said that the176th staff had been overheard telling Defendants on the 263rd's docket to leave the court and come back in the afternoon.

The situation between the two Judges does not show any signs of de-escalating.

As word quickly spread through the CJC, it did not take long before the altercation between the two judges was being portrayed as a racially motivated incident, with defense attorney and HISD School Board trustee Jolanda Jones comparing Judge Harmon to a modern day Rosa Parks.  However, I'm not so sure that this isn't more of a "black robe" issue than a black/white issue.   Regardless, a press conference and protest has been scheduled for tomorrow, September 15th at 11:00 a.m. in front of the Civil Courthouse.  Additionally, a judicial grievance has been filed against Judge Wallace.

In the meantime, Judge Wallace's 263rd District Court is being moved to share a court with Judge Marc Carter in the 228th District Court.  Incoming Judge Kristin Guiney's 232nd District Court will now be paired with Judge Harmon in the 176th.

The Brian Wice Editorial

In any jury trial, after the jury has returned its verdict, the jurors are told that they can speak with the attorneys on the case if they so choose.  My personal policy has always been that I will stay and talk to any jury that wants to talk to me, regardless of whether or not they ruled in my favor.  I believe that if the jurors devoted their time to listening to me talk for hours, days or weeks, the least I can do is listen to them for a bit.

Some jurors want to know what will happen to the defendant after the trial is over.  Some will be looking for affirmation that they arrived at the right decision.  Some will want to know what "the rest of the story" was.  I always try to answer their questions to the best of my ability.  Jurors get emotionally and intellectually invested in the trials they sit on, and I think they deserve to have their questions answered.

As most of you know, last week local hand surgeon Michael Brown was acquitted of Felony Assault against his wife, Rachel Brown.  Yesterday, Brian Wice, who defended Dr. Brown along with Dick DeGuerin, Catherine Baen and Carmen Roe, wrote an editorial criticizing the prosecution team of Jane Waters and Nathan Hennigan for comments they made to the jury and media after the trial was over.

In his editorial, Wice describes prosecutor Nathan Hennigan's comments as "a backhanded slap at Judge Wallace", "cross[ing] the line on both a personal and professional level", and "classless".

Okay, let's look at this for a moment.

Shortly after the acquittal, Dick DeGuerin made a big production of cutting off Dr. Brown's ankle monitor in front of the media before doing a press conference doing a character assassination on Rachel Brown (who, last I looked, wasn't charged with a crime).  This type of circus-like production isn't exactly what I would equate with "class" in the first place, so Wice attacking Nathan for talking to the jurors about "the real Michael Brown" rings a tad bit hypocritical.

Brian's description of the prosecutor's comments as "a backhanded slap at Judge Wallace" is ludicrous.  Judge Wallace made rulings that affected the integrity of the trial he presided over.  Nathan and Jane followed those rules throughout the trial.  None of Nathan's comments were along the lines of "We would have won the case if that big old mean judge just hadn't made a dumb ruling."  He discussed an extraneous aggravated assault that Michael Brown had been on deferred adjudication for after the trial.  Brian claiming that Nathan was giving a "backhanded slap" was designed solely to make Judge Wallace angry with the prosecutor and portray him as disrespectful to the court.

Nothing could be further from the truth.

And finally, Wice alleges that Hennigan's statements as violating Rule 3.06 of the State Bar Disciplinary Rules, because his "post-verdict comments" could harass, embarrass or influence actions in future jury service.  He calls it a "thinly veiled attempt to make the jury feel bad about its verdict".

Um, Brian, are you forgetting that your part-time job of being a legal analyst for Channel 2?  Don't you regularly make "post-verdict comments" about what you thought was good or bad about a trial?  Don't you do analysis of evidence that may or may not ultimately get in front of jury?  Aren't you the same guy who appeared in about 5 episodes of 48 Hours criticizing Kelly Siegler and calling her every name in the book as you criticized the verdict in the Susan Wright case?

Are you really suggesting that only us members of the Defense Bar can give our opinions of cases in the aftermath, but the prosecution can't?

Wice wraps up his editorial by encouraging District Attorney Pat Lykos to counsel with her "minions" about their post-verdict statements.  If Pat Lykos is any type of leader, she will politely tell Brian where he can put his editorial advice.

I don't know near as many sports analogies as Brian Wice.  The lessons I learned from my father and coaches were short and to the point:  Play with class and be as gracious in victory as you are in defeat.

Brian Wice took the time out to publicize what he perceived to be a lack of class by the prosecutors in defeat.

Perhaps he should more closely examine how gracious he was in victory.

What to Do With Susan Wright

Back in the Spring of 2004, I got the opportunity to sit second chair with Kelly Siegler on the State of Texas vs. Susan Wright -- a highly publicized murder case at the time which was made even more highly publicized during trial.

The short version of the case was that a young mother tied her husband, Jeff Wright, to their bed and stabbed him over 190 times before burying him in a flower bed right outside their bedroom door. She then reported him to the police as having beaten her and then left their home on foot. For a more detailed version of the case, here is an article I wrote for TDCAA several years ago.

The case got National attention when Kelly had us reconstruct the bed in the middle of Judge Jim Wallace's courtroom and did a re-enactment of the stabbing for the jury. (NOTE: No, I was not the dude in the bed. That was Paul Doyle.)

Ultimately, Susan Wright was convicted of the murder of her husband and was sentenced to 25 years in TDCJ. The jury had rejected a claim of "Sudden Passion" (which would have capped sentencing at 20 years) and had also rejected the State's request for 45 years.

Almost immediately, the verdict was attacked both in the Press and in the Appellate Courts by the shy and demure Brian Wice. He took on Susan Wright's case and for the past five years has fought like a mad man to get her a new trial. Brian is a good friend of mine, and although we were on opposite sides of this particular issue, I truly respect the work he did on this case.

Last year, he and Carmen Roe took the case to a hearing in front of Judge Wallace making the claim that Wright's defense counsel had been ineffective for failing to put forth an effective Battered Woman Defense. Specifically, Brian and Carmen were arguing that defense counsel had erred in not putting on witness Mistie McMichael (Jeff Wright's ex-girlfriend who alleged abuse by him) and an expert on Battered Woman's Syndrome.

Although Judge Wallace did not have the power to overturn the case, he did make findings agreeing with Brian's assertions that there was ineffective assistance, and the case was then taken to the Texas Court of Criminal Appeals. In a ruling that I will admit absolutely stunned me, the Court ruled 9-0 that Susan Wright deserved a new punishment hearing.

With that ruling, the ball is now thrown into the District Attorney's court to see what they want to do with Wright's case on punishment. Both Kelly Siegler and I are both gone from the D.A.'s Office now, obviously, so new prosecutors will be making the decisions.

The case goes back to the 263rd District Court with Judge Wallace. Mia Magness is the Chief in that court now and she is one of the best trial prosecutors that the D.A.'s Office still has left. You might remember her from that little Clara Harris trial awhile back.

But the chances of the Wright case actually going back to trial aren't in Mia's hands at the moment. The decision of whether or not to plea bargain the case away is in the hands of Pat Lykos and Jim Leitner.

What they will decide to do with the Wright case will be a pretty big statement on their feelings for victim's advocacy and how much they will bow down to the defense bar.

Obviously, Wice and Wright would love nothing more than to get a plea offer of time served. The Office could accomplish this by letting her to plead to 5 years TDCJ. In lieu of that, the Office could also plead her to 10 years TDCJ making Wright automatically eligible for parole.

I hope they don't. And here's why:

-Susan Wright was convicted of tying her husband to a bed and stabbing him over 193 times.

-the number 193 is an under-estimated count, because as Dr. Dwayne Wolfe testified, there were so many wounds that many of them ran in together and couldn't be counted individually.

-Wright testified that she went for her husband's eyes first when the stabbing began.

-Wright also testified that in the middle of the stabbing, she was interrupted by the couple's young son, who she had to put back to bed. (Can you imagine what she looked like walking down the hall with him?)

-Wright went to great efforts to disassemble her bedroom and clean it with paint and bleach.

-while Jeff Wright's body was being desecrated by the family dog in the back yard, Susan had the audacity to go file a police report that he had assaulted her.

I expect supporters of Susan Wright to claim she was a battered woman, but her claims weren't even close to credible. During trial, she testified to only three specific incidents of abuse (while saying that Jeff beat her continuously, she could only remember these three).

The three incidents were as follows:

1. An incident where Susan had a small bruise under her eye. She told neighbors that her son had accidentally popped her in the face with an action figure. The neighbor saw the action figure and saw it was consistent with the size of the bruise.

2. An incident where Jeff (who was a very large and strong man, especially when compared to Susan's small frame) had repeatedly slammed her hand in a heavy door. She admitted under Kelly's cross-examination that her hand was not broken and she never sought medical treatment for it. Her description was rejected by the jury.

3. An assault the night of the murder which had led to bruising on her arms and legs. All the bruising on the arms and legs were consistent with somebody banging themselves up while moving a body and disassembling a bed.

And let's not forget that Jeff Wright's body was found with ties around both wrists and both ankles, with corresponding ties found tied to the bed frame. There was also candle wax dripped on his genitalia.

The crime scene was much more indicative of kinky sex than an assault, folks.

So, Pat and Jim, you've got a decision to make.

Susan Wright tortured her husband and the father of her children and killed him about as brutally as one can imagine. Jeff Wright was far from the perfect husband, but he didn't do the things Susan claimed. Her claims of domestic abuse are an affront to all the real victims of domestic violence out there.

Quite frankly, 25 years TDCJ was a gift from the jury.

If you guys are interested in doing the job you were elected to do, it's time to make a statement.

One of your best prosecutors could retry this case in a heartbeat and leave Susan Wright wishing for that 25 years.

Or you can just surrender and plead her out to back time.

If I were you, I'd take this case back to trial.