Reviewing How We Select Judges

I had a moment to sit down with a cup of coffee and read the print edition of the Houston Chronicle this morning when I came across this editorial, supporting Rep. Justin Rodriguez's bill that would change how Texas selects judges.

I usually get my information on criminal law-related Senate and House bills from Grits, so I was surprised I hadn't heard about this one.  If Grits wrote about it, I totally missed it.

Those of us who practice criminal law know that partisan politics have no place in the judiciary.  In addition to opening the doors to the influence of party hacks who have no understanding of how the criminal justice system works (i.e. Terry Lowry & Jared Woodfill), partisan elections for judges contradict the ideals of Separation of Powers.

What good is a judge if he or she is more loyal to following party lines rather than interpreting the laws of Texas and the United States?

I've said before that I don't believe that we will ever see our judges selected in non-partisan elections.  The Republican and Democratic parties are machines that rely on all candidates to help raise money for their respective parties.  They will never voluntarily agree to just waive the earning potential of all the judges who are running on any particular election slate.

Rep. Rodriguez's bill becoming law may be doubtful in my pessimistic opinion, but I hope Scott Henson over at Grits will chime in with a more educated analysis than I have.

Either way, the idea of steering judges away from partisan politics has my full support, as well as the support of most prosecutors and defense attorneys I know.

Todd Keagle Departs

There is a going away party this afternoon at 5:00 p.m. at OKRA Charity Bar (924 Congress) for Vehicular Crimes Chief Todd Keagle.

After nine years with the Harris County District Attorney's Office, Todd and his family are moving to San Antonio.  Todd's departure is a very big loss for the Office.

I didn't know Todd very well during my time at the D.A.'s Office, but I've worked with him extensively on the defense side on an extremely complicated case that seemed like it went on forever.  He knew what he was doing when it came to the intoxication offenses that he investigated and he always seemed about three steps ahead of everyone else.  He was professional and no nonsense when it came to handling the facts of his case.

However, Todd didn't let the strength of the State's case lead him to making unfair decisions on his recommendations.  He was fair and he was willing to hear out anything I brought to him on behalf of my client.

He turned over every last bit of evidence he had before I could even ask for it, and he checked into everything that he didn't have in his possession.  He was very clear on what his duties were on both Brady and Discovery, in general.  He stayed ahead of the curve by turning them over early and as additional evidence came in.  He also didn't subscribe to the idea that "prison is the only answer" and he was open to working on a rehabilitative solution that could make positive changes for all involved.

More importantly, Todd had integrity in how he handled his job and he didn't let a questionable administration (circa January 1, 2009-December 31, 2012) change that.  He was very clear that he would handle his cases the way he believed was right and if the Administration didn't agree with it, they could fire him.  Under the the former District Attorney, that was always a distinct possibility.

A good prosecutor who does his or her job in a professional, efficient and ethical manner is one of the best things that can happen to a defense attorney on many cases, and I'm sorry to see Todd go.

I wish him the best of success in whatever the future holds for him in San Antonio.

No Respect for the Elders

CLIENT:  That gun doesn't even work.  It was my grandfather's from World War II.  It's older than I am!

ME:  Okay.

CLIENT:  It's probably even older than you are.

ME:  "Probably??"

Bucknoid

A conversation between me and a client in the holdover today.

HIM:  I need you to call my girl, man.  She's gone bucknoid.

ME:  Bucknoid?

HIM:  Yeah.

ME:  You're saying "buck" and "noid"together?

HIM:  Yeah.

ME:  Like a combination between "buck wild" and "paranoid"?

HIM:  Exactly.

ME:  Alrighty then.

The Zimmerman Verdict

Unless you went to bed at sundown last night, I'm sure that by now you have heard or read that George Zimmerman was found not guilty in the Trayvon Martin murder case.

If you are on Facebook, I'm sure that your computer screen is completely full of your friends expressing outrage over the verdict and declaring it to be racist.   To read these types of statements coming from the general public is completely understandable.

To read them coming from criminal defense attorneys is completely inexcusable.

The fundamental principle in criminal law is that before a person accused can be convicted of a crime, it must be proven, by the evidence, to a jury beyond a reasonable doubt -- public perception of said crime and any other factor outside of that evidence be damned.  Criminal defense attorneys celebrate that principle and hold out Atticus Finch as our role model of the lawyer who stood and fought for an unpopular cause he believed in.

The public will rant and rave against the verdict as they are wont to do, but any defense attorney who has ever tried a case involving a self-defense statute should understand.

We all know from high school civics or government class that before any jury can return a verdict of guilty, the case must be proven to them beyond a reasonable doubt.  To many, the phrase "Beyond a reasonable doubt" is just a string of words told to a jury that mandate them to simply go figure out whether or not they think a person did what they are accused of.  For those of us who practice criminal law, we know that those words set forth what is supposed to be a theoretically-near-insurmountable challenge to the Government to prove a case.

A person can't be convicted because a jury thinks the accused is "maybe" guilty, "probably" guilty, or even if they are "clearly convinced" of their guilt.  The level of proof has to be so amazingly strong that the individual juror should be left with not a single reasonable doubt over whether or not the accused is guilty.

If you stop and think about it for a second, that's a huge burden for a prosecutor.  At least, it is supposed to be.

In the George Zimmerman-Trayvon Martin case, there was no dispute that Zimmerman had fired the fatal bullet that ended Martin's life.  The question was whether or not he was acting in self-defense.

What many non-criminal lawyers don't know about criminal law and self-defense is that a person accused of an assaultive offense (from simple assault to murder) does not have to prove self-defense.

Process that for a minute before we go on.

A person accused of murder who claims self-defense does not have to prove that he acted in self-defense.

Rather, a person accused only needs to raise the issue that self-defense may be involved and then it becomes the prosecution's job to show that self-defense does not apply and to do so beyond a reasonable doubt.  And if you think proving that a murder happened beyond a reasonable doubt is a difficult job for a prosecutor, it is simple compared to disproving self-defense.

As a prosecutor, I lost a case where a man claimed self-defense after running over and killing two alleged gang members in a parking lot.  I tried the case against Eric Davis, who is an outstanding criminal defense attorney (NOTE:  I didn't realize quite how outstanding until after he beat me in this case).  I thought that Eric's claims that his client acted in self-defense were ridiculous.  How could the driver of a truck claim he was acting in self-defense when he runs over and kills two unarmed men?

But at the end of the day, Eric raised the issue of self-defense and it was one that I could not successfully disprove beyond a reasonable doubt.  His client was found not guilty.

In Eric's case, he didn't have a lot to work with (in my opinion) but he made it work anyway.  I think that any defense attorney would have probably been much more comfortable to work with the self-defense factors that Zimmerman was able to claim.  The fact that Zimmerman had injuries on his face and head are a tremendous piece of evidence of self-defense that a prosecutor has to overcome.

If one could remove the racial overtones of this case from it and assume for a moment that Trayvon Martin had been a white 17-year-old kid, I don't think any defense attorney I know would have shied away from trying it.  I also can't imagine a prosecutor who would have wanted to try it.

But this trial was infused with racial tension from the start by the media.  Was there racial hatred in George Zimmerman's heart when he walked out his door to confront Trayvon Martin?  I have no idea.  Maybe.  Maybe not.  Did he walk out that door just to gun down a 17-year-old, unarmed kid without provocation?  I have no idea.  Maybe.  Maybe not.  I kind of doubt it.

My personal belief is that George Zimmerman initiated a situation that rapidly got out of hand in a manner he had foolishly not anticipated.  Is he morally responsible for what happened?  That's a completely different question.

Under the Criminal Justice System, however, people aren't tried for their moral responsibility.  They are tried for what can legally be proven against them.  If at the end of testimony, the jury cannot figure out whether or not the self-defense claim was legitimate, then the legally correct verdict is "not guilty."

Unless the prosecution disproves it beyond a reasonable doubt, that is what they are bound to do.

Moral outrage is to be expected, but if anyone understands why the verdict happened, it should be lawyers.

Otherwise, we are just feeding into the same mob mentality that we are supposed to be fighting against every day.

NOTE:  For additional reading, check out Brian Tannebaum's outstanding blog post this morning on The Embarrassment of the George Zimmerman Verdict.

Well . . . Crap

Yesterday, the Houston Chronicle reported in this story that the personal identification information of all county employees who were working in 2005 and 2007 was unlawfully misappropriated by an outside source.  Names, dates of birth and Social Security numbers were among the information taken.

You can read the story by clicking the link, but I've heard that the information stolen was being tracked to locations as far away as Vietnam.  I've also heard that the County Attorney's Office has known for quite some time (possibly years) that all of our information had been accessed but was sitting on the info to avoid any legal unpleasantness.

As of this writing, I've yet to be offically notified by any the County that my information has been stolen, and to my knowledge, none of my former co-workers have been either.

Docket Management

A few weeks ago, I had the distinct displeasure of having a flight home re-rerouted through Chicago's Midway Airport.  It had been raining all day in Chicago and most flights had been significantly delayed.  The airport was packed from end to end with people waiting on their delayed flights.  Finding a place to sit down was out of the question, and at one point, I texted my wife and told her, "I don't even have room to get out of the way!"

Luckily, I was prepared for these type of conditions because of the daily training we all receive at the elevator banks of the Harris County Criminal Justice Center.  This Tuesday morning around 9:45 a.m., I was stuck at the elevator bank on the 10th floor for 30 minutes waiting on an elevator that wasn't already filled past maximum capacity and I found myself actually appreciating the spaciousness of Midway Airport.

The CJC is (and always has been) ridiculously overcrowded and the poor design of the facility aggravates that crowding to the umpteenth degree.  This is not news.  I've been writing about it for years.   So have other bloggers.  News media has covered it.  The Fire Marshal has inspected.

Nothing changes.

So far the only thing that the building management has done in an attempt to "control" the massive crowds in the morning trying to cram into elevators is have the already inept security guards yell at people to move out of the hallways leading to the elevator banks.  As far as I can tell, the only effect that has had is making an already angry crowd even angrier.

Unfortunately, since the CJC is a relatively "new" building, we are stuck with it (and the moronic security guards) for the foreseeable future.

If any meaningful change to the ridiculous (and dangerous) crowding situation is going to take place, it is going to have to be done by restructuring the scheduling of people who are ordered to come to court. As it currently stands, the vast majority of all persons charged with crimes in Harris County must report to court once a month at 8:30 or 9:00 in the morning.

Some judges (like County Court at Law # 6's Judge Larry Standley) are much more flexible about arrival times.  Many more judges are not.

Earlier this summer, County Court at Law # 8's Judge Jay Karahan issued a new standing Order for his court that was designed to reduce the frequency that a person charged with a crime in his court must make an appearance.  While in most courts, defendants must report once a month for settings that are more-often-than-not pointless (i.e., "Has the case been indicted yet?  No?  Then reset it for another month."), Judge Karahan's new docket order is designed to make those required settings be productive ones.

The docket order is one page long, but offers several common sense changes designed "to promote the efficient use of judicial resources."  Some of the highlights include the Discovery Order being signed off on at the first setting.  This gets the ball rolling early and forces both the prosecutor and the defense attorney to actually start getting the case together from the beginning, rather than waiting until it is time to decide if both sides want to go to trial.

More significant (and progressive, in my opinion) is that the Judge allows "complex" cases to be reset for up to 120 days before the next setting where the defendant's appearance may be waived.  This is huge, because the County Courts handle the majority of all DWI cases and the results of blood alcohol tests can often take several months to arrive.

If all of the other 36 courts in the building followed just those two orders, we would be well on our way to doing something significant about the overcrowding.

Earlier this month, it was learned that some other changes were being made that could help, as several misdemeanor courts announced that they were going to start experimenting with 1 o'clock p.m. dockets.

The idea of the 1 o'clock docket is going to be controversial, because neither prosecutors nor defense attorneys are going to like it.  Both sides are accustomed to the idea of being in court all morning handling normal dockets, but we usually rely on our afternoons being free to meet with our clients and witnesses or work on our cases.  A regularly occurring 1 o'clock docket will throw a hugh wrench in that schedule.

Unless it is done correctly.

A 1 o'clock docket could be extremely effective if it is used for two primary purposes:

1.  For First Appearance/"To Hire Attorney" (THA) Settings -- Any client that makes bond after being arrested is given a date to report to court and receive any statutory warnings that he may not have received before bonding out.  If he doesn't have an attorney, he is reset to hire one.  Usually, most misdemeanor defendants who bond out are scheduled to make their first appearances.  Therefore, Fridays are usually the most crowded day in the courthouse.

The courts that are considering doing afternoon dockets are talking about making these 1 o'clock settings for those first appearances.  Defense attorneys wouldn't be required to be there (because they haven't been hired yet) and each court would only need to send up one prosecutor (to read Probable Cause, if necessary).

In the meantime, the elevators won't be flooded with hordes of people in the morning who have very little chance of doing anything other than being reset.

2.  Contested Motions/Revocation Hearings --  One of my pet peeves practicing in Harris County (and probably any other county) is when court comes to a standstill during morning docket while a Motion to Adjudicate or Motion to Revoke Probation hearing is being held in court.  The prosecutors get tied up in the hearing.  The judge is tied up.  It is not entirely uncommon to have to wait for a couple of hours just to get a judge's permission to set a case for trial if they are in a hearing. Some courts won't even let you walk through the courtroom to get to your client in the holdover.

These hearings are different from jury trials, because only a judge presides over them.  The same applies on Motions to Suppress and other pre-trial hearings.  I understand when the judge is trying to be more expedient with a trial because there are twelve jurors waiting, but there is no good reason why making contested hearings in the afternoon can't be done.

The morning dockets would move more quickly and efficiently.  Cases wouldn't be reset because the prosecutor was unavailable to talk because he or she was tied up in a hearing.

I'm glad to see that some of the judges are beginning to do what they can to alleviate the situation at the CJC.  The building's structure isn't going to be changing any time soon.

Catching Up

So, after about four months (off and on) on the road working as a consultant (not a producer) on Cold Justice, we're finally done with filming for Season One and I'm back home for good.  Working on the show was a lot of work with very long days, but I enjoyed the hell out of it.  I think the show is going to be awesome when it airs.

I know the blog has been slacking badly in my absence.  I haven't been around to follow up on the latest news and gossip.  I would hear bits and pieces of news while I was out on the road, but I didn't have the time or resources to confirm what I was seeing until it was old news.

What's funny is that most of the comments I got about my absence from the blawgosphere were from people who hate the blog in the first place.  I suppose it just fulfills some need of theirs to be angry and they missed me.

I was in Arizona when I learned about Mike Anderson's cancer diagnosis.  As a friend of Mike's and as a father and husband myself, I'm saddened beyond words about what the Anderson family is going through right now.   As I said before, my thoughts and prayers are with him, Devon, and his kiddos.  Moments like this should make us all take a moment to stop and focus on the truly important things in life.

I've heard some complaints about the morale at the Office lately.  It doesn't rise to Lykosian Levels, but there have been grumblings from the troops about some of the people in higher positions and some questions about certain people in certain promotions.  Some of the complaints I agree with.  Some I don't.  It sounds a lot like the D.A.'s Office I remember from when I worked there.

There have been a couple of scandals this year, but the major one so far has been this one, which I already wrote about.

I don't know what is going on with Amanda Culbertson's lawsuit against the District Attorney's Office, Pat Lykos, and Rachel Palmer.  I haven't heard any updates.

There are some interesting developments going on in the aftermath of the Jeffrey Stern case, but I'm not at liberty to discuss them quite yet.

Two courthouse folks have publicly announced their candidacies for some appellate court positions. My friend (and one of my favorite people) Jani Jo (Maselli) Wood is running for Place 4 on the Court of Criminal Appeals.  She is an outstanding candidate who would make the Court a better place.  In addition to having outstanding taste in music, she is guided by a strong moral compass that is backed up by her tireless devotion to the law.  I'll be writing more about her in the months to come.

Harris County Assistant District Attorney David Newell is running for Place 9 on the Court of Criminal Appeals.  I don't know David very well, but I'm familiar with the work he's been doing on behalf of the Office.  Everything I know about him indicates he'll make a great candidate for the Court, as well.  I'll do some more research on him and get back to you in the months to come.

Of course, Governor Rick Perry's announcement today that he isn't going to run again for office is going to shake things up drastically around Harris County, too.

That's pretty much the stuff on my mind right now as I start to catch up on the blog.

What's on y'all's minds?

HCCLA's Annual Declaration of Independence Reading

Please join HCCLA tomorrow, July 3rd at 11:30 a.m. for the annual reading of the Declaration of Independence on the front door steps of the Harris County Criminal Justice Center.

This tradition began in Harris County under the leadership of Robb Fickman and other members of HCCLA several years ago.  It has since expanded into approximately fifty counties around Texas as well as many other States around the country.

HCCLA Board Member Tyler Flood even read the Declaration outside of British Parliament already this year.  (NOTE:  I think he did it early to avoid being bayonetted by people in powdered wigs.)

It is a fantastic tradition that pays to tribute to the origins of what we all do every day at the CJC.

I hope that everyone who can attend will be there.