Learning the Difference

When I'm explaining the plea bargain process to my clients, I compare it to someone selling a car.  The prosecutor's position is like that of the car owner, and the strengths and weaknesses of the case are akin to the value of the vehicle.  Maybe the car is flawless and in perfect running condition.  Maybe it is a complete lemon.  The same can be said for a case -- although I've seen many more lemons than flawless cases in my time.

But in both scenarios, it is the car owner/prosecutor who is completely in charge of setting the negotiating price.  If the car/case is flawless and powerful, the buyer/defendant can expect high prices with less flexibility.  If, however, the car or the case is not particularly powerful and has engine problems, one might expect that price to be drastically reduced, or for the car to be totally tossed on the scrap pile.

Whether the case is flawless or an utter disaster, one thing remains the same:  the prosecutor has the sole discretion to set the asking price, and the defense attorney and his or her client is powerless to force them to lower or change it.  We can either accept the deal or walk away from the bargaining table and set it for trial.  

It's just that simple.  It always has been and it always will be.

Much like the auto industry, there are good times and there are bad times.  Hurricanes that destroy fragile and poorly built courthouses may inspire a fire sale on cases to help move inventory, for instance.  Non-violent offenders charged with low-level crimes may find themselves receiving plea bargain offers that are significantly more generous than they might receive under normal conditions.  In some cases, a prosecutor may decide that a contested issue on a motion is probably going to go the defendant's way and just agree to it, rather than go to a full hearing.  

It's just the practical thing to do and prosecutors generally understand that, as do defense attorneys, their clients, and judges.  Otherwise, a total backlog would be expected, wouldn't it?  

As this year has proven, unfortunately, a measly hurricane is nothing compared to a global pandemic when it comes to wreaking havoc on the criminal justice system.   In the twenty-one years since I've been practicing criminal law in Harris County, I've seen Tropical Storm Allison and Hurricanes Ike and Harvey deliver devastating blows to the system, including closing the CJC down for months and months.  Each time, the System found some way to adapt and get back up and running in some form or fashion within a month or two.

The effect of the pandemic on the criminal justice system across the country has made hurricanes and other natural disasters seem like a light sprinkle.  With only a handful of exceptions, all jury trials have ceased since March.  

Take a moment to fully appreciate that.  

In Harris County, Texas, jury trials have come to an (almost) complete stop for nine months and counting in 22 Felony District Courts and 16 County Courts at Law.  Hundreds of cases set for trial have been pushed back to a date that has yet to realistically be determined.  In the meantime, all the cases that would have been set for trial since March have been pushed back with faraway trial settings, all lined up behind those cases that were supposed to have been tried this year.  And while those cases were getting set for trial, new cases have come in every single hour of every single day since then.

The full extent of the backlog is almost impossible to comprehend because no one really has any idea of when things are going to return to any semblance of normal.  Sure, you may have a trial court here and there availing itself of the ill-conceived NRG Arena Jury Plan, but those trials have been few and far between, making no dent in the pile-up of cases that Harris County is now experiencing.

The System is collapsing under its own weight.

At the risk of sounding like I'm blowing smoke up the Judiciary's robes, the judges of Harris County, for the most part, have done all they can to keep things moving.  Although they are routinely blasted for the low (or PR) bonds that they've handed out during this crisis, the judges I've been in front of have worked hard to balance public safety with the Constitutional rights provided to Defendants.  They have made judgment calls on those to release on bond and those who need to stay where they are.  Some of those calls have been wrong and have drawn the criticism of many.  That's unavoidable, and in most instances, the criticisms are unfair.  Too many cases are coming in and not enough are being disposed of.  There simply isn't enough room to keep all the people locked up that the critics would like to see locked up.

But one of the byproducts of so many defendants being out on bond is that they have almost no incentive to enter into a plea bargain -- especially if that plea bargain offer involves further incarceration.  

It's a hell of a conundrum if you're a prosecutor.  A prosecutor may be evaluating a case where a defendant has a lengthy criminal history that includes a trip or two (or more) to the Texas Department of Criminal Justice-Institutional Division.  They may have a difficult time bringing themselves to make a plea bargain that doesn't involve another trip to TDCJ.  

Under normal circumstances, that would be fairly easy to resolve.  Hypothetically, let's say that a defendant is facing a punishment range of 25 years to Life on a case because of his or her prior criminal history.  They are sitting in the Harris County Jail, not bonding out and the prosecutor offers them five or ten years. 

Assuming the case-in-chief is strong against the Defendant, that would actually be a bargain.

However, if you are out on bond, enjoying your freedom, the idea of checking back into TDCJ for a 5 or 10 spot probably doesn't sound like much fun, does it?  As a matter of fact, if you are a defendant who is out on bond, there really isn't much incentive to take that offer at all, is there?  Especially if the alternative is setting the case for trial on a date that is to be determined so far down the road that your trial prosecutor might currently still be in law school.

In short, if a defendant is out on bond for his or her case, it's his or her market when it comes to deciding whether or not a plea offer from a prosecutor is worth taking.

Under those circumstances, one might think that the prosecutors would come to the realization that it is time to entirely rethink the plea bargaining process.  Given the breadth and scope of COVID and the current backlog of jury trials, that should be motivating prosecutors to offer deals that make Hurricane Plea Bargains seem Draconian.  

Let's pause real quickly here before my friend Joe Gamaldi's head explodes at what I'm saying.

As I've mentioned several times on this blog, I consider the most profound moment of my legal career to have come during a PSI hearing in front of Judge Caprice Cosper.  It was a tragic case I was trying against my friend Sam Cammack where a couple had left their children unattended for an hour because their work shifts overlapped.  A fire broke out and an infant died.  The pictures were horrifying.  I wanted pen time.  Sam, very eloquently, argued for probation.

As Judge Cosper gave probation, she sternly told me, "Mr. Newman, in this business there are those whom we are scared of and those that we are mad at.  It would behoove you to learn the difference."

I bring that story up now, because it couldn't be a more relevant guide than in this moment.

Under pandemic conditions, prosecutors have got to realize that it is time to focus resources on those offenders that we are actually scared of, and set aside our moral indignation towards scofflaws for the time being.  

Sadly, that hasn't been the case in Harris County.

As newly re-elected District Attorney, Kim Ogg is still experiencing her identity crisis between the world's most progressive prosecutor or the tough-on-crime prosecutor.  The result has been prosecutors fearful of offering a controversial plea bargain that might make Kim Ogg look bad and subsequently incur her wrath.  Keep in mind, all personnel must have their contracts renewed going into Ogg's second term and nobody wants to lose their jobs.  Many prosecutors are making their recommendations as if Wayne Dolcefino was sitting in the audience.

Historically, I've tried to refrain from using this blog to put prosecutors on blast for something that I disagreed with on a case, but damn it gets tempting with some of the absolutely ridiculous offers that have come out of the D.A.'s Office lately.  I've literally set cases for trial based on whether or not a person should be on one probation or two (at the same time).  I've gotten in yelling matches over .1 gram of Ecstacy.  I've had to go to full-blown hearings on issues that should have been agreed upon as clearly settled matters of law.  I've dealt with cases that should have been dismissed on their first setting, only to be told that I can submit a letter to get it No Billed by the Grand Jury.  

I'm not alone in this thought process.  My friend and fellow defense attorney Brian Roberts detailed his frustrations with HCDA prosecutors in this excellent blog post in September.  Our brethren and sistren in the Defense Bar all feel the same way.  And, spoiler alert, so do a lot of the judiciary.

Too many prosecutors are holding onto cases like a group of compulsive hoarders.

Obviously, this doesn't apply to all of the prosecutors.  There are several that are still reasonable and knowledgable and don't consider themselves to be the Ultimate Arbiters of Justice.  They will recognize the cases that need to be dismissed and the cases that should be reduced or offered small punishments.  They are willing to face any internal consequences that they might have to suffer because they aren't afraid to do the right thing.

They are appreciated far more than they will ever know.

I have no doubt that I will get pushback on this post from those who will characterize me as just a liberal-ass defense attorney trying to let all those scumbag clients out.  But it's time to be practical about what is happening.  If the court system is clogged with non-violent offenses, it's going to be blocking the path of all the cases behind them.  The non-violent cases can't just be put on the backburner in perpetuity. 

Victim crimes will stack up behind them.  Victims and their families will have to wait for their days in court far longer than they ever have in the past.  And to what end?  So that somebody with a couple of Ecstacy pills learns the hard way that we should Just Say No to drugs?  

Across every walk of life, our planet has had to drastically adapt to conditions under COVID.  It defies all expectations to think that the Criminal Justice System wouldn't be called to do the same.  

It can be done without losing sight of the Principles of Justice.

It can be done by distinguishing between those we are mad at and those we are scared of.

I learned that lesson from a very wise Judge, and it has made all the difference.

The 339th District Court Judicial Race

In all of the political contests involving the Harris County Criminal Justice Center, there is probably no greater disparity between the candidates' qualifications and ability than there are between Republican Incumbent Judge Caprice Cosper and her Democratic opponent, Municipal Court Judge Maria Jackson.

As I've written before and my friend, Mark Bennett has written, Judge Cosper is the best Judge in the Criminal Courthouse. Please keep in mind that although Mark is one of my very good friends, he and I seem to disagree on damn near everything. But we are in agreement here that Judge Cosper is an amazing Judge and the thought of her losing her bench to a judge that tries only traffic cases is both nauseating and sad.

I've mentioned previously that there are four judges who comprise the supervision of the STAR Court Program. All of their roles are equally important in the success of the program, but (call me biased) I would describe Judge Cosper as the heart and soul of the program. She was one of the founding judges who helped start it, and she takes personal pride in the program.

When the STAR Program was first established, I'll admit that I was skeptical over the possibility of really making a meaningful change in the lives of hard-core addicts. I was very wrong about that. Under the guidance of Judges Cosper, Thomas, Anderson and Wilkinson, I've seen some amazing stories of recovery and redemption. I've also seen the pride and happiness in the faces of people who are winning their fight with their addictions.

That type of meaningful change couldn't have happened without judges like Judge Cosper.

When not working in the STAR Program, Judge Cosper is even better on the bench in the 339th District Court.

Trying a case in front of Judge Cosper is like trying a case in front of a Westlaw data base. She keeps up to date on all of the latest case law and legislation. During a tricky (from a legal standpoint) case in many courts, prosecutors and defense attorneys often are having to take "time out" to do some last minute legal research. It doesn't happen in the 339th, because the Judge knows the law off the top of her head.

As far as her judicial demeanor, she approaches each case with an open mind. Somehow she manages to tackle her job with a combination of compassion and toughness that is difficult to describe without seeing it in person.

Those defendants that appear before her on non-violent offenses that deserve a second chance will get them. But, Judge Cosper will order them into a treatment program that will do everything possible to ensure that defendants won't find themselves back in the criminal justice system again. She is the Judge who won't let a young person take a final felony conviction on a first time drug case, if she feels that a deferred adjudication will give them a chance to rehabilitate themselves and avoid a final conviction.

On the other hand, she will hand out the maximum sentence to violent offenders without batting an eyelash when appropriate. She knows the difference between people with legitimate problems and those who are just grasping on to any excuse that they can find for their behavior. She can cut through the difference and administer true justice.

She consistently does the right thing over and over again. She plays no favorites with either the State or the Defense, and I doubt that anyone could find a defense attorney who has practiced in front of her that would describe her as anything less than completely fair.

Like I said, she is the best Judge in the Courthouse.

Her opponent is a municipal court judge that has been a lawyer for less years than Judge Cosper has been a judge. Municipal court judges serve an important function in government and I do not mean to diminish that. But the bottom line is that the municipal courts handle only Class C Misdemeanors. For those of you who read this that aren't familiar with criminal law, a Class C misdemeanor is only punishable by a fine.

That basically translates into the fact that Maria Jackson has never had the power to sentence a person to a day in jail and now she seeks to hold a position where she would be handing down life sentences and signing death warrants. Her experience is primarily with traffic violations and now she seeks to deal with Capital Murders?!

The disparity between the two candidates is beyond enormous and is probably the best illustration why Judicial elections should have absolutely no ties to partisan politics.

Sadly, there is a real danger that those people who are still foolish enough to vote "straight ticket" on their ballots could remove from office the Best Judge in the courthouse in favor of a person who isn't even remotely qualified. I've never voted "straight ticket" in my life, nor will I. If anyone is so weak-minded that they can't put individual thought into who they are voting for, then they shouldn't be voting in the first place.

Folks, do me a favor and get the word out to all of your friends who might possibly be voting straight-ticket Democrat and tell them about the mistake they would be making.

Unless Judge Cosper is re-elected, everybody loses on this one.

In case you missed it the first two times, she's the Best Judge in the Harris County Criminal Justice System.

Of Babies and Bathwater

With the certainty of Barack Obama being the Democratic Nominee for President of the United States becoming clearer and clearer every day, the biggest underlying theme of political discussion around the CJC is "will there be a Democratic sweep in Harris County come November?".

I'm too young to have been around when the "Republican Sweep" of the 1980s occurred, but I've heard the stories of some (not all) good judges losing their benches in Reagan-era fervor.

To me, the idea of a sweep illustrates why I really and truly wish that the words "Republican" or "Democrat" didn't have to appear next to a candidate for a position involving criminal justice. Honestly, I think it is fundamentally inappropriate that it happens that way.

The statue of Lady Justice shows a lady with a blindfold, holding the Scales of Justice. If our judges are to be politically partisan, than how can we really claim that Justice is still truly blind to anything but the law? Leave it to your partisan legislators to write the law, but when it comes to enforcing criminal laws, a judge's position on taxes, abortion, and immigration don't have any relevance to their job description.

The reason I'm writing about this is that there are some damn good Republican Felony District Court Judges on the ballot this year that I don't think anyone who works in the CJC wants to see go. Now, I'm sure that my friend, Grits for Breakfast will speaketh from the Holy Temple in Mt. Austin that "Change is necessary. Change is good.", but I don't agree. Sometimes you do get people in elected positions that are so damn good at their jobs that you really don't need a change, and change would most definitely not be good. (As an aside, my analogy to counter Grits' argument is that if change is always so freaking good, why aren't we encouraging more skilled heart surgeons to go into podiatry?)

An example of why change is not always good could probably not be more clear in the case of Judge Caprice Cosper of the 339th District Court, who is on the ballot as the Republican candidate this November.

Judge Cosper is widely regarded as one of the best (if not the best) Felony District Court Judges in the CJC. She is one of the founding judges and heart and soul behind the STAR program, which focuses on rehabilitating defendants with drug addiction problems. She will argue with Defendants who opt to take the "easy" route of a quick 12.44(a) conviction for Harris County jail time, rather than try to get their lives together through a deferred adjudication with drug treatment. She is known for her compassion and willingness to take risks on people who need help.

She's also not afraid to be tough when toughness is called for, and has no problem with sentencing a violent offender to Life in prison if that is what the evidence demands.

She is a legal bookworm who remains constantly up-to-date on the latest court opinions, which she has memorized. She is friendly and pleasant to both members of the defense bar and the prosecution.

In short, she's a model judge.

Her opponent on the Democratic side is a City of Houston Municipal Court Judge. I've tried to find her name on the internet, but my Googling skills seem to be lacking this evening. To date, her most significant case may be a really big speeding case, or perhaps a huge "no seatbelt" case.

She specializes in traffic tickets, folks. The thought of her taking over the 339th bench due to a Democratic sweep is saddening.

Judge Cosper isn't the only Judge that I hope keeps his or her bench come November. As a matter of fact, I hope the vast, vast majority of them do. I know there will be some disagreement from the Defense Bar over how many of them should stay or go (and yes Mark, I'm rooting for Shawna in this one), but in my personal opinion, when you look at the Judges on the ballot (Judge Devon Anderson, Judge Roger Bridgewater, Judge Mike Wilkinson, Judge Brock Thomas, Judge Mark Ellis, and Judge Cosper), you have included 4 out of 4 of the Judges who spend their extra time in the STAR program, and a group of good men and women who are trying to make a positive change in the Justice System.

A sweep of them all simply because of partisan politics would be a miscarriage of justice, not to mention incredibly foolish of the voters.