Saturday, August 14, 2021

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.

Wednesday, August 4, 2021

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.