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.

Comments

Anonymous said…
I remember Judge McDonald and practiced in front of him a number of times. Uncanny resemblance to Donald Pleasence.
Murray Newman said…
Anon 9:57 am,
Yes! They could have been twins.
Juanita Barner said…
Thank you Murray. I will be sending this article to my clients that complain about the delay.
Anonymous said…
A profound period of transition, and everyone is trying to learn how to cope.

G.
Anonymous said…
This may be one of your better blogposts ever. I suggest that another factor is that many courts' jury trial dockets were already backed up before COVID-19 hit because of the slow recovery from Hurricane Harvey.
Anonymous said…
Classic case of two wrongs make a right. It's correct to point out the unfairness to current judges regarding the "political football" being made out of bond and other issues.

But this is only the latest unfairness in a system which has promoted nothing but party interest for decades. In the days of Republican one party rule in Harris County, it was essentially pay to play because three different sleazy Republicans would send out mailers telling R voters exactly who to vote for in a primary. In the Democratic party a few judges started winning in 2010 or getting close so everyone started jumping on board from 2012 on. Now a lot of good D judges got primaried out of their seats by other less qualified Ds. Not because they were bad judges, but because demographics shifted and there were demagogues waiting to take advantage.

We must fix a system that allows blacks to be promoted ahead of better qualified whites.

Anonymous said…
"We must fix a system that allows blacks to be promoted ahead of better qualified whites."

Holy shit - what an ending!
Murray Newman said…
Anon 6:38 p.m.,
Yeah, I don't have any software on the blog that tells me about repeat commenters but there is a recurring anonymous person who posts some pretty racist shit. I presume it is the same person and I have no idea who it is. If it is the same person, that statement is sadly tamer than most of them.
Anonymous said…
Sept 1st, you have permitless carry in Texas. Also, all prior UCW charges are permitted to be expunged. Despite that, people with no criminal history are still being charged every day by the DA. Why? Other than clog the courts and generate business for lawyers doing expunctions are these cases filed? Takes the legs out of the state crying we are overwhelmed. Click on Today's Filings on the District Clerk website to see this.
Anonymous said…
Good ol' Art. Leaves Houston and is still buttkissing our elected officials in hopes that one day he himself can say he was elected to some public office.
Anonymous said…
Most UCWs being filed are for having the weapon while committing another offense (generally PCS/POM). Permitless carry doesn’t change this; it just removes the already minimal training and documentation requirements to carry a firearm in public. I do agree, though, that we should not be charging UCW where we wouldn’t charge the underlying offense. UCW for personal use amounts of MJ, for example. Felon in Possession also needs some major cleanup and should only apply to violent offenses, robberies, and family violence.
Anonymous said…
Anon August 16, 2021 at 5:31 PM, perhaps you forgot that in 2008, democrat judges took almost every seat from incumbent republicans, a far cry from "In the Democratic party a few judges started winning in 2010". Assuming your comment regarding blacks versus whites is related to judges, Murray and others have long pointed out that most voters have no idea of the credentials judges running for office which makes the letter next to their name the main criteria for success. Incompetence has nothing to do with race so if you're bemoaning a specific candidate, by all means make a case for that individual but don't paint with a broad brush because the electorate often feels someone who looks like them might be fairer than someone who does not. Good judges get voted out of office all the time but this is tied to the system we have collectively chosen, not simply because of race.
Anonymous said…
Anon 5:31:

You are right about 2008. Plenty of democrats won in that year because of Obama on top of the ballot. Republicans did fare better in the midterm off-presidential year of 2010, and in 2012 Obama carried the Ds better than ever in Harris County.

The problem with your argument that people only vote D or R and not credentials, which is true of general elections, is that people are not voting "D" or "R" in the primaries.

Regardless of whether my memory serves me absolutely correctly, the point is that we used to have one party rule, there was a period of time of competitiveness, and now there is one party rule in Harris County again. But this time, it's for good.

Let me give you some examples you asked for of Democrats who got primaried for no reason other than their opponent within the same party thought they could win.

80th Civil District Court - White male Judge Larry Weiman didn't deserve to lose his bench, all things considered, but he lost in the primary to the current judge, Jeralynn Manor, a black woman.

You'll remember Elaine Palmer of the 215th ran Steven Kirkland off his bench and she ran a really nasty campaign to do it. Another black woman who "gotcha-ed" a white man in the same party.

In the 333rd, Brittanye Morris, a black woman unseated Darryl Moore in the D primary for no apparent reason other than a black woman can beat a white man in the D party

In the 334th, Steven Kirkland lost to Dawn Deshea Rogers in the primary.

For the 339th, Dennis Powell lost to "Te'iva Bell" You can't even pronounce this judge's name and she got elected. Don't tell me it's not because she has a black sounding name.

And just one honorable mention: Ramona Franklin, who is nothing but trash according to HCCLA's complaint against her filed with the TCJC, unseated R judge Brock Thomas. Now this isn't an example of Democrats eating their own, but Brock Thomas was apparently doing a good enough job that after he lost to a lesser-qualified black he was still considered worthy enough to preside over the "Responsive Interventions for Change Docket."

The fact that good judges get voted out is not "simply" because of race, which I understand to mean not "only" because of race, is somewhat of the point I want to persuade you of. I hope these examples will demonstrate the new realpolitik in Harris County.

Lastly, you said that that a black litigant feels more comfortable with a black judge. I get that, but I just don't understand why the white majority in Harris County isn't entitled to feel that way. The chip on the shoulder attitude many blacks carry towards whites is not going to disappear when that person takes a bench, and I certainly don't want me or my clients to be the in the way when they vent their bottled up grievances.

-Anon 5:31 PM






Anonymous said…
Just one more thing…
There are bad whites judges too:
In the 258th Judicial District Court, the real criminals are more often on the damn bench than in the gallery. Judge Liz Coker texted one of the prosecution team members how to examine a witness in a criminal prosecution and that was barely sufficient to cause her to lose her bench. The prosecuting attorney who received the message instead of being horrified, this cold calculating bitch thought it was a great way to take strategic advantage. And she was disciplined. Yet this prosecuting attorney, Kaycee Jones, got elected to a bench herself in the 411th! Guess the ignorant provincials thought this was a heroic service instead of a blight on our Anglo-Saxon legal system. Kaycee Jones got voted out yet she still sits as Visiting Judge on the 258th, presiding over the same voters who voted her out of the 411th! Voted her out presumably because she messed up again by telling the judge of the 258th, Travis Kitchens, that a certain defendant on a case Kitchens was presiding over stole her car.
But there she was, on the bench, complete with her unrepentant tongue too large for even her piggy cheeks. And on one day she was presiding as visiting judge, the only person who objected was a defense attorney who had an outcry hearing in child rape case. Bet that objection took .2 seconds to make.
In Montgomery County JP 1 you have a self-aggrandizing judge Mack who wastes everyone’s time with his insincere patriotic politics. He has the pledge of allegiance to the Texas and American flag said, which is bad enough, he also invites some crazy preacher on a rotating interfaith basis to offer a prayer. One time I was in there and it was this little old demure black lady who was mousy and reserved but boy she really let loose on that prayer like a whirlwind. These scenes are not appropriate decorum. And then there was this jury trial where a panel of 24 jurors was summoned because a defendant in a civil case paid the jury fee. The defendant didn’t appear for trial. But there was a lot of space reserved on the docket for this, so rather than letting the jury go when I waived jury trial to try a liquidated claim for under $10,000 when the defendant had defaulted, the judge kept me and the jury waiting while he went through all these motions just because jury trials are a great way for judges to meet voters and impress them with their BS patriotism. And it’s because dumb white conservatives eat this shit up.
You also have the old school judges and attorneys who need to get busy and die, taking the old system with them. There’s some judges who preside over their Court as a Supreme Village Elder, making peace instead of judicial decisions, crafting solutions they think is best instead of following the law. The other Boomer problem I run into is the “gotcha lawyer” This is definitely the province of old school good ol’ white boy courthouse gangism, especially in the ignorant and provincial counties.
Here’s one example of this:
Me: Judge, the defense’s argument that he is making today, while it is meritorious, it is the first time we are hearing about it because the defendant did not include this allegation in his answer. In fact, if you read the defense’s answer it actually makes a frivolous argument which defendant is not insisting on today, just to throw us off the scent. We can amend our petition to meet these arguments”
OC: Judge, I have included this argument in my answer. You can interpolate it from the vague generalizations that I have thrown in there. There’s no surprise here.” He shouted shrilly.

The Court: I’m going to deny your motion without leave to amend and jettison this case in violation of the Texas Rule against general demurrers. I’m also going to ignore the special exceptions procedure as set out in the Rules. Good luck on appeal, son.
OC: Gotcha! *finger guns*
This why local boys do better in provincial counties, cause they contribute to the judge’s campaigns. Down with boomer gotcha law. Down with bribes.

Anonymous said…
Anon 5:31, this is Anon 10:43. You throw in everything but the kitchen sink in your retort, including the pronunciation of names, and dance all over the place without addressing the several who showed concern over your initial racial barrage. You stated very clearly that: "We must fix a system that allows blacks to be promoted ahead of better qualified whites."

Had you generalized and left it at political parties or even left out race altogether, you may have come across a lot better. Throwing in a few token whites in your voluminous replies seems insincere because of it but if you read the archives, Murray and others have repeatedly championed finding a better way to do things because MOST VOTERS DON'T VOTE ON QUALIFICATIONS alone, if at all. That said, while I preferred Kirkland in that race against Palmer, a lot of voters seemed unwilling to vote for someone convicted multiple times of drunk driving. To them, that was a huge disqualifier and you keep avoiding the core argument of "what makes someone BETTER qualified"? It's not that a lot of voters focus on this question but since it amounts to your biggest grievance even if we overlook your racial overtones, it is fair to expect you to address it.

So yes, "good" judges do lose in primaries or regular elections, often simply based on the political party they have affiliated with in the latter case, but you haven't made a convincing case that somehow blacks are inferior to their white counterparts. Blacks comprise less than 20% of the local population and whites, hispanic or not, are about 3x that so clearly all voters are not voting based on race alone or we'd see the lily white benches we've seen for the bulk of the last 150+ years and the entitlement you speak of flies in the face of reality since who people vote for is done in secret. The state has been run by democrats for most of its history and that will likely come back as demographics change, but maybe it's time to move past race to sharpen the argument that we should elect based on qualifications. You might want to define what qualifications you think matter the most first, but at least you won't come across sounding as horrible as you did earlier.

PS: A great many people aren't even registered to vote, either in Harris County or the state itself, but of those who are so registered, there are wild swings in how many bother to vote at all. In some primaries, less than 10% of registered voters bother to show up locally, and even in a big presidential election we are lucky to see two thirds come out to vote, you might do well to educate voters on which candidates for judicial offices are better to help bring more voters to the polls.
Anonymous said…
Anon 1:26

I don't know whether to apologize for my voluminous replies or to provide the analysis of what makes a better qualified judge in each of the judicial races I listed. I think the readers, who I assume are attorneys, will judge for themselves. Besides, there is no reason to examine their qualifications if the voters don't vote on qualifications anyway. If voters don't know the difference anyway, than it doesn't matter why a judge gets voted out because we already know it's not about whether they are a good or bad judge.

So what do you think it is about, then? Everything except qualifications, and except race, because if voters voted on race, that would mean we don't live in just world.

I don't think you and I actually disagree about the facts here: we both agree that voters do not vote on qualifications. That is my point.

If voters are not voting on qualifications, what do you think they are voting based on? Just because you might find the answer to this question morally objectionable doesn't make the answer less true. As you pointed out, I've talked a lot so I'm gonna bow out here, but I will continue to read as always.
Anonymous said…
Speaking of judges that should be commended instead of condemned, any chance you're going to revisit that post where you said Judge Franklin was illegally revoking and raising bonds, but then the Court of Criminal Appeals upheld her practice?
Lee said…
Please remind me why aa a juror I should ever believe a defense attorney. They are only advocating for their client because they are paid to much as a salesman, mernicarry or prostitute.
Anonymous said…
Anon 12:32, most voters pick their candidate based on the letter next to the name; ie: whether the candidate a democrat or republican. This is provable by the numbers in any given election. In primaries, flaws in candidates come out by virtue of opponents looking to score the brass ring, sometimes financed by those who have felt the sting of rulings or cases. You might notice that many judicial primaries show an undervote of almost half the voters, voters skipping such races altogether. I maintain that Kirkland's defeat came courtesy of his own past but it was amplified by his opponent's backer throwing money against him and how DWI's were vilified in more recent years. Contrast that with your original assertion that he lost based on race, a difficult to prove assertion given the super majority of voters were a different race than the candidate that eventually won. Sure, some people vote according to race and there are credible ways to prove it but most voters do not.

If you had limited your argument to attorney's, I think most who practice in front of specific judges are more willing to skip party affiliation just as word of mouth regarding candidates who've never sat on a bench tends to get around. Murray is only one blogger who has shown a willingness to look at credentials over party, there are plenty of others, but he also recognizes that those in the field amount to such a small number of voters that it typically doesn't change elections. The problem is that if the way we selected judges was changed to an appointment system, we all know political party affiliation would be the biggest criteria.

But the argument that somehow blacks are inferior in some unspecified manner to whites and that must be the basis for any fixes applied to the current system assumes a great deal that you just haven't offered up, your reliance on names, individual complaints, or the rumor mill just weakens the assertion further. Very few judicial incumbents draw a primary opponent in either party's primary, open seats often draw multiple candidates that do little to differentiate themselves outside of the pay-for-play slates or editorial board interviews, so claims that race is a big factor just doesn't jibe. In the 2008 sweep, I seem to recall most judicial primaries a formality, the republicans providing the incumbents and the democrat candidates rarely having opponents, leading to seriously flawed people like Kevin Fine getting into office during the general election; you may remember how this white man tried to strike down the death penalty and marginalize his past with drugs lost his law license not long ago when he was involved in a drug sting.

So yes, we agree that judicial positions should be filled with better candidates, I just think that race is not a dominant factor in who wins primaries or elections and should not be the focus of any potential reforms. For the record, many of our black local judges have proven to be excellent on the bench, lumping them in with a few truly poor choices that rode the coattails of political party to spots on the bench is offensive. Most voters in general elections pick by party, not race, but provide easy access to judicial records and qualifications and some may embrace the reform.
Murray Newman said…
Lee, you should trust us to help you with your spelling and grammar.
Lee said…
Murray,

Sorry about the grammar. I was doing my best on a smartphone on a Westheimer bus.

I will work on the talkering Englanderish more gooder nexting times.
Anonymous said…
https://www.click2houston.com/news/local/2021/09/21/houston-police-union-calls-for-judges-resignation-after-man-who-was-given-low-bond-shoots-two-hpd-officers/
Anonymous said…
Lee,

I wanted to respond to your comment about mercenaries. A lot of the state bureaucracy is mercenary if being paid to do your job is the only yardstick for dishonesty.

It's not about being paid to do a job, it's the fact that an honest should be able to present his case objectively and still win, but the lying system is rigged against him. And no honest man can be happy in a naked scramble for resources.

That being said, the mercenaries are more often the lying women and bureaucrats who work for cover for judges and attorneys.

Ever notice how the women who work in any office are willing to lie for their superior (usually a man)? It's really annoying how persistent this phenomenon is. From legal secretaries to clerks for judges, these office bitches are so inconsiderate of their own dignity they are willing to lie just because they think it secures their paycheck for another week and their pension another year. Time for judges to be able to fire these blood-sucking bureaucrats. One less pension to pay.

Office flunkies are ignorant of any type of loyalty except that which must be paid to the almighty dollar, truth be damned. Office flunkies tell you the attorney is on vacation til next week, the next office flunkie you talk to says he'll be in this afternoon. They instinctively lie because even when their boss hasn't done anything wrong, they don't know he hasn't. They just assume he has and cover his ass.

Some people are not willing to do certain things that are immoral just for a profit, but most are. It is the duty and right of honest men to see these liars punished as far as it is in our power. I say, find the crooks in office and gas'em.
Anonymous said…
I have worked in the legal field for over twenty-five years. Not once did I have to become familiar with the Harris County Criminal Justice System until recently. I have learned to do my research before I speak. According to the Harris County District Clerk records, I came across a recent felony murder charge, with at least four prior active felony charges released on a PR bond by Judge Hilary Unger in the 248th. There are more, but I believe you get the point. Let's take a moment to investigate one inmate currently held at a higher bond than the felony murder. This inmate suffers from a life threatening medical condition, and his medical condition was presented to Judge Hilary Unger in the 248th. Judge Unger disregarded his medical condition so now he sits in jail with a compromised immune system with heart failure. Did I add that this inmate has not been provided proper medication? It seems like the tables are turned. The innocent get punished for the criminals' crimes.
Anonymous said…
Oh, and let me add that the inmate also has a current brain injury due to a stroke and does not even know why he is being tortured.
Anonymous said…
Mayor Turner, who effectively decriminalized crime around this time last year, doesn't hesitate to throw judges under the bus.

Of course, it seems he now has problems of his own...
Anonymous said…
Anonymous 4:59 PM, what a curious comment given the county settled the federal lawsuit, the DA is the one whose policies impact what is treated as a criminal matter and what is not, and the elected judges that are the subject of Murray's Op-Ed are the ones trying to reach a balance between the defendant's and the rest of us. I'd like to hear exactly how the mayor, as flawed as he is in so many ways, "effectively decriminalized crime" given his appointed police chiefs have made it clear that they run the show for HPD.

An interesting article popped up in the Houston Chronicle about one of the prime players of the whole bail reform issue the county stupidly threw away money for years fighting the lawsuit over, the bail industry itself. Given how lucrative it had been to facilitate suspected criminals of all sorts being let out cheaply, it's no wonder key players in the bail industry wrote blank checks to politicians to keep the cash flowing, much like the biggest proponents of the defense appointment system were those who ran plea mills while reaping the benefits of all that virtually free money. Another blogger quotes the Chron's story enough to make it the better destination for those who don't subscribe to the media source: http://www.offthekuff.com/wp/?p=102552
Anonymous said…
We can see the fruits of equality down at the Harris County Criminal Courthouse, where no matter your status as attorney, witness, accused, or victim, no matter your race, no matter your sex, all are treated alike as criminals.

They set it up to make you know “They” are in charge from the beginning. There’s a guy yelling about Jesus handing out religious literature and next to him a guy yelling about COVID handing you a mask. I’m not superstitious, so I take neither.

Then the imperious security mama is yelling at everybody in the line the same old shit about what clothes to take off and how they’re gonna smell your shoes for bombs. Sniff my leather belt, you invasive species! Oh yeah, good girl. Good thing she checked my ankles while my pants were down, if it wasn’t for that I’d be keeping my combat knife there just in case negotiations with the prosecutor broke down.

Speaking of proctology, I did have to take a surgical mask after all. They do care if they can see your mouth, because that means they can actually hear the attorney talking, something Court staff never do if they can help it. But if a dude doesn’t want to pull his pants up over his ass, that’s a form of expression worth protecting. That’s a personal choice. One dude lifted up his shirt so the mama could look for grenades. Lord Jesus, we could see nearly the entire moon shining and there wasn’t even a filter of underwear to conceal his bare ass.

Me and a few other lobbyists bonded briefly over this moment and I asked an open question to the lobby “Anyone here been to the Grand Canyon? Well, you just seen it.” That was probably the high point for me and I know it was for all who heard.

You wonder why the people who complain about the Court system are the ones who are making it completely distasteful. The only “poleez brutalidee” I expect is from the overconfident jerk with a gun who tells a misdemeanant to move seats because he is making the Supreme Lord Bailiff “nervous” because his required face covering is in fact a balaclava. Here’s a hot idea: how about you don’t require accused criminals show up to court looking like a bank robbery in progress! That would mean we’d have to tell the truth about how masks are bullshit.

The truth about masks are that it’s just another tool of control that the CJC building is the epitome of. It’s narrow aisles and walls impose upon you and suffocate you before you ever crowd yourself into the courtroom. No one knows where to go, know one knows what to do. And when you are told what to do, it’s from a uniformed yahoo abusing the little authority we have been forced as a society to give him.

Why do decent people have to suffer through this? Maybe the magistrate judges should be a little less worried about stupid masks and get back to accusing indigent defendants of being welfare cheats. It’s time the uneducated drones understand they don’t run the Courtroom. Stop lording your authority over everybody, and just keep your head down and do your job. We’ll call you when there’s a bullet to jump in front of, but short of that, the adults are talking so stfu.

Anonymous said…
Do you not recall the "cite and release program"? In September of 2020, Mayor Turner issued Executive Order 1-68 authorizing the Houston Police Department - at the concurrence / behest of then Chief Art Acevedo - to exercise discretion on arresting or issuing citations for eight seperate offenses. Those offenses such as PCS, Criminal Mischief or Theft are literally the "broekn windows" crimes that lead to larger and larger issues is not controlled.

The DA cant control what is a crime with the "policy" if that crime never makes it to intake.

Fast forward two years later when larger crimes are oput of control and Mayor Turner has not sought to reexamine the wisdom of the Executive Order, but instead heaps the blame at the feet of the judges.

Not very curious.
Anonymous said…
Anon 3:54 (who also appears to be Anon 4:59), the city's cite and release program only covered a handful of minor offenses out of many hundreds and could only be applied under narrow circumstances as outlined in the order itself. The former police chief requested this as a measure to conserve manpower as well as potentially reduce the jail population of low danger offences so the original claim that the mayor "decriminalized crime" is a huge projection on your part.

It might be of interest to you to know that the 40+ year old Broken Windows theory and original studies were debunked several years ago as researchers found various trickery done by the previous studies as well as showing the outcomes were not accurate. The newer studies have been replicated far more accurately to discredit the original material which you can find easily online.

So applying a failed theory and failing to research the context of the executive order means you might be unaware that the order was passed in conjunction with the Harris County Sheriff's policies and the DA's policies, many smaller policing agencies in the area following suit to one degree or another. The need still exists to reduce how many low level offenders are in county jails and even a cursory look at the criminal records for people cited under the cite and release program show almost all subsequent offences committed by them are still similar low level crimes, if any, not the higher level crimes people are most concerned about.

So no, the city's mayor has no ability to steer the ship of high level criminals being released by judges, most of those could be given a hearing to establish why they deserve to be held without bail or at least a higher bail, yet the judges continue to release those far more dangerous to society. The settlement with the feds was in regard to low level misdemeanors, not felonies, the mayor not running interference for the felons as you imply.

http://www.houstontx.gov/execorders/1-68.pdf for those more curious
Anonymous said…
638 Anony.

Broken windows theory, like any social sciences theory, has been met with criticism and additional study over time. But by no means has it ever been "debunked". It is just one of many plausibile answers to why crime rates increase. Unfortunately, like these things tend to do, people start aligning politics with or against those plausible answers ideas and the polarity drowns out any discussion.

Most of us have decades or more in the criminal justcie system and are aware of the perils of giving law enforcement too much discretion.

That said, I will note you deflect responsibility from the leader who signed the order before you denounce any causal connection. Why the need to deflect responsibility if those actions are not at the root of the rise of crime? If there is no resulting rise in crime, Mayor Turner should proudly take ownership, instead of pawning "responsibility" off to an ex police chief or other officals.

I could go on, but it sounds like you have personal investment in defending the person who signed the executive order rather than an honest discussion.

TTFN

Anonymous said…
Anon 4:38/et al;
The original studies and assertions that Broken Windows had a major impact on crime have been reviewed numerous times and shown to fall far short of the mark. Crime was already going down before it was implemented in NYC but demagogues like Giuliani were all too willing to take credit for the NATIONWIDE decline in crime by claiming it was their application of the BW theory that did the most good. This is all public knowledge and even the original researchers have admitted that the theory and its subsequent application were not as strong as they had believed.

The fact that some still want to focus on petty crimes rather than crimes with victims, including major crimes, is scary and frankly, there is almost no support for increasing police funding to include both this theory and the current emphasis on prioritizing major crimes. A third of city council were even trying to reduce police funding in recent years so blaming the admittedly flawed mayor for preferring directing limited police resources toward major crimes instead of petty BS is amazing on the face of it.

And that is what you have repeatedly done, as though the mayor of Houston somehow controls all law enforcement and prosecution efforts in Harris County, making his executive order the reason of all increases in local crime. Of particular interest is how crime has been increasing everywhere in the country, not just Harris County, so blaming a local city mayor for what is clearly a nationwide trend just doesn't make sense. That is not deflection, it's common sense. I don't particularly care for Mayor Turner's politics but saddling him with the bulk of blame on this one is just foolish.

National crime trends aside, unless the citizens of Harris County are willing to invest in many more jails, and the state in more prisons, prioritizing who fills those limited beds makes sense. Conversely, focusing efforts on crimes with immediate victims, especially those involving violence and weapons, should be of more interest than criminalizing people who's lawns don't look like golf courses, people who own properties that are regularly vandalized but get no relief from police other than a ticket of their own for not repairing things fast enough, and people who jaywalk because the minute possibility that they have drugs or a weapon. You don't have to ignore any of that but it shouldn't be the focus as the BW theory would require.
Anonymous said…
Anony at 831 AM.

Two key issues here.

The rising crime rate across the country is primarily seen in locations that ordered police to stand down as protesters burned down buildings and such. The lack of fear of any consequence fueled much of that it lingers today. Most - if not all - localities that elected to defund the police such as Minneapolis and Oakland have reversed course due to sprialing violent crime. If uyou have polictical animosity towards BW, maybe I can substitute a reading of the Lord of the Flies or the litany of other works since the age of man that prove that a society without laws is no a socaity much longer.

I guess my concern with the Mayor is being exacerbated by this discussion and the constant need deflect some sense of responsibility. We can debate the 'why' all day, but unless someone - the mayor or someone else - stands up and acknolwegdes the pathway of our own making, we will never get to the 'how'.
Anonymous said…
Anony 300 PM, crime has risen in rural areas as well, murder rates spiking in supposedly defunded areas and normally funded areas alike, but other status crimes followed by the FBI following the trends whether riots were present during recent years or not. I'm sure unrest doesn't help but neither does the narrative that overall crime increases are caused by protests, most of which do not last long enough nor encompass enough reported crimes to elevate rates in an appreciable manner.

In recent decades, policies addressing crime based on the broken windows have been changing as the once highly regarded premises were proven not as descriptive as first thought, crime increasing in areas lacking meaningful tenants of the BW model helping to prove its flawed nature. The need by some to try and inflate the responsibility of a mayor for all the ills of society when those ills have been on the rise all over the country smacks of a personal vendetta, not a keen observation. That this particular mayor was one of the few big city mayors to increase his police budget while others were cutting back flies in the face of such observations but there are more than enough individuals and organizations to point fingers at if that is your goal.

Turner's political opponent the last time he ran for office claimed he would trim the fat, hire many more firefighters and pay those firefighters a great deal more despite having no source of funds to do so. When asked what fat he would trim, the man came up with programs that had already been eliminated or heavily cut years before, reducing any largess they might provide funds for, all while claiming he'd also give big tax cuts on property taxes. Nobody believed the person running and chalked up his enthusiasm due to his complete lack of political experience other than serving as the head of the democratic party in another county but even the GOP-lite candidate tried to sell whoppers to the masses and was thrown to the curb.

I doubt anyone reading this blog would champion Turner for mayor again even if he wasn't term limited out but trying to sell an executive order as even a major reason Turner did anything effectively, never mind promoted criminality, is pretty funny when there are so many better culprits available to blame. Mr. Newman points out that the current elected judges are being targeted as the primary scapegoats but for context it should be known that the nationwide increases in crime are also happening in places where no bond reform has taken place, where no protests have occurred, and none of the personalities are in place. This being the case, the hows and whys are far more complex than the broken windows theory could explain and certainly outside of mayor Turner's scope of authority or responsibility.
Anonymous said…
Dec 15 Anony.

I see that. Murder rates up highest in SD, MT and KY.

Turner isn't the only one facing these challenges, that is certain. I am naive enough to expect more from leadership. But you are right that it poinst to a larger issue.

The riots themselves are not new. May of us watched the last LA riots live for weeks. But we didnt have it on endless loop broadcast on our cell phones. Watching the last line of "fear" of retribution from law enforcement go up in flames (literally) showed an entire couple of generations that actions do not neccesarily have the consequences they have been taught. When I refer to BW, it isnt the policing initative I think of so much as the moral and social contract fabric that is coming unwoven.

We will be studying the cause of that unravelling for years I imagine, and I do not know how the shutdown contributed to it. But I suspect that was at least the setting of the stage. Idle hands and all of that.

In the meantime, I will note I seem to be carrying a firewrm around with me much mroe often than I used to.

Probably not the greatest idea.

But it is what it is.

Thank you for a respctfull discussion

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