Judge Ramona Franklin and the 338th Star Chamber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the article:

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

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

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

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

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

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

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

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

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

Then a not-so-funny thing happened.

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

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

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

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

The HCCLA Stike Force came with him.

Clay Conrad (right front) and the Strike Force

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

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

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

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

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

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

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

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

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

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

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

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

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

This should scare the hell out of you.  

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