Sunday, June 30, 2019

Judge abused discretion, violated due-process rights, by revoking probation w/o a hearing: Will he be sanctioned?

A misdemeanor DWI case out of San Antonio deserves broader attention, with interesting and important implications on several levels.

Wayne Christian - a Republican county-court-at-law judge in Bexar County first elected in 1996, who ran unopposed in the 2018 election - has routinely inserted himself on behalf of the state in lieu of county prosecutors in probation revocation cases, often refusing to allow testimony and deciding them with no evidence. But thanks to appellant Allison Jacobs, her attorneys, and perhaps most interestingly, new Bexar DA Joe Gonzalez, that practice will now be revisited.

Here's Judge Christian dressed in a camo robe. (source)
According to columnist Josh Brodesky of the SA Express News, Judge Christian's court "leads all County Court-at-Law judges in what’s known as MTRs - motions to revoke probation. He also leads other judges in jail bed days."

In Jacobs' case, she'd been a model probationer but failed three urinalysis tests toward the end of her 14-month probation period. Her attorney wanted to argue that this was a false positive caused by a diet pill she'd been taking, which long-time readers know is not an implausible scenario, particularly in Bexar County.

But Judge Christian refused to hold a hearing and based his decision to revoke on a brief conversation with the court liaison from the probation department. This violated Jacobs' due process rights, which should have entitled her to challenge evidence against her in a hearing before she's revoked to jail. But Christian went even further. Reported Brodesky:
Not only did Christian sentence her [to jail], but court records show he also denied her appeal for reasonable bail. He then modified a district court judge’s order of bail for $1,600 to make conditions more onerous. Another district judge lessened those conditions, and when Jacobs was finally released from the Bexar County Adult Detention Center in November, Christian responded. 
According to court filings: Upon release on bail, Jacobs was scheduled for a pretrial services orientation on Nov. 19, 2018. But Christian called pretrial services and had the orientation changed to Nov. 13, 2018. Pretrial services was unable to notify her about this change, so she missed the orientation. The next day Christian revoked her bail, issuing a warrant for an arrest. 
What gives? This is a defendant who was two weeks away from completing 14 months of probation for a serious, but misdemeanor charge. 
[Jacobs' attorney Jodi] Soyars said she likes Christian personally, and, obviously, has concerns about crossing him. She has other cases in his court. But she viewed this as representative of a broader issue and unfair to her client.
“He routinely denies defendants the right to due process,” she said.
So the judge routinely disallows prosecutors from participating in revocation decisions, acting himself on behalf of the state. And he doesn't allow a defendant to present evidence of possible actual innocence, simply declaring the allegations "true" by fiat without, as Soyars said in her brief, a "scintilla of evidence."

And it wasn't an isolated incident. Again from Brodesky: “There have been situations where our prosecutors have been placed in positions where they are not in agreement with going forward on a motion to revoke,” District Attorney Joe Gonzales said. “And they have made the decision to not sign off on the motions, and the judge has moved on them on his own.”

Let's delve into the secondary issue of denying the defendant bail while her appeal was litigated. The actions attributed to Judge Christian, who went out of his way to thwart the decision of a district judge in a habeas corpus writ, seem like extraordinary measures for a judge to take. The brief from Jacobs' attorney includes a footnote - which the DA's office corroborated (more on this later) - describing the remarkable sequence of events in more detail (citations to the record omitted):
While the appeal and motion for new trial procedures were taking place, some additional procedural issues arose and were dealt with, which are evident in the clerk’s record. A brief explanation to make sense of the clerk’s record follows: After a Notice of Appeal was filed, a Motion for Reasonable Bail Pending Appeal was also filed. . This is a misdemeanor case and bail was required to be granted. Judge Wayne Christian denied bail. An Application for Writ of Habeas Corpus Seeking Setting of Reasonable Bail was then filed and heard by District Court Judge Melisa Skinner in the 290th District Court. Judge Skinner granted the Writ and ordered bail of $1,600 and SCRAM as a condition. . The same day, Judge Christian called his clerk and added full GPS, daily reporting, and daily UAs as conditions of release, effectively changing the order of a District Court judge. A second Application for Writ of Habeas Corpus was then filed, requesting reasonable release conditions. Judge Joey Contreras in the 187th District Court set this Writ for a hearing on October 17, 2018. At the hearing, Judge Contreras granted reasonable conditions. After several weeks passed with Jacobs unable to meet the bail requirements, Judge Contreras amended his bond order to allow Jacobs a way to be released pending the appeal.  Jacobs was released from jail and given an orientation date of November 19, 2018 to report to pre-trial services. On November 13, 2018, Judge Christian called pre-trial services and ordered pre-trial services to require Jacobs to report on that date. Pre-trial services was unable to contact Jacobs and Jacobs had not yet had her orientation that would put her under the requirements of pre-trial supervision. Judge Christian then required pre-trial services to send over a violation report on November 14, 2018, whereupon Judge Christian revoked her bail and issued a warrant. Judge Contreras again intervened and reinstated Jacobs’ bail on November 16, 2018.
This conduct to my mind, deserves public censure if not ouster by the State Commission on Judicial Conduct. And indeed, in its opinion, the 4th Court of Appeals called Christian's actions an example of "an unsuitable practice by a county court at law judge."

All of this is remarkable, and more than a bit concerning. Judge Christian seems intent on ignoring the mandates of his job and substituting his own judgments for the process. In doing so, he's also increasing incarceration - keep in mind he has the highest numbers of all Bexar-county-court-at-law judges on both revocations and resulting jail-bed days.

But perhaps the most remarkable aspect of the case was the fact that District Attorney Joe Gonzales joined with defense counsel to dispute Christian's "unsuitable" practices, which apparently had been tolerated by his predecessors without contest for many years. 

One aspect of electing reform-minded prosecutors Grits had not fully considered (or perhaps more accurately, had not dared dream possible) is that they could challenge unconstitutional court practices from the inside, or join those challenges, as happened here. So kudos to Gonzalez for his stance here, that's a big deal!

Prosecutors' role should be to "seek justice." But too often, they see themselves as on a side, and it's the opposite side from the defendant. So when the judge plays prosecutor as well, as is the practice in Judge Christian's court, defendants without means to pay a phalanx of private lawyers have little chance.

Finally, Grits was interested in the Express-News' analysis that Christian leads all other Bexar judges in motions to revoke. How do we know? That's something tracked in state-level court data, but totals are only available in Office of Court Administration queries at the county-wide level.

Grits doesn't immediately know the data source from which Brodesky identified the number of probation revocations by court. (If any readers know how to access this data from public sources, please let us know in the comments.) But that's a useful figure because, as regular readers are aware, probation revocations are a significant cause of Texas prison admissions, and revoked misdemeanor probationers go to county jail, contributing to local costs. 

So, to summarize, here are the implications and questions Grits would take away from this episode (feel free to suggest more in the comments):
  1. A judge for years felt free to ignore his duties to hold probation-revocation hearings and neither local defense attorneys nor the DA's office called him on it. Is this happening elsewhere?
  2. Will the State Commission on Judicial Conduct sanction Judge Christian?
  3. Does this flagrant disregard for judicial duties rise to the level of the state bar challenging Christian's licensure?
  4. Will media in other jurisdictions begin analyzing which judges have the most probation revocations and hold them accountable for successes/abuses?
  5. An under-examined aspect of evaluating "progressive" prosecutors will be how they respond to appeals challenging unconstitutional practices and other reform litigation. People have discussed this in the context of bail reform, but Jacobs case shows there are potentially many more areas where this could become important.  
This is quite a significant case, I think, certainly for San Antonio, and potentially exposing an area where judges may be abusing their discretion in other jurisdictions as well, if reporters and advocates were to look. The pressures on ADAs and defense counsel to acquiesce in judges' abuses for the sake of other cases certainly aren't unique to Bexar County.


Gadfly said...

There are TWO Wayne Christians who are Texas elected officials? I just threw up in both their mouths.

SOFAQ said...

This is a example of how insane our country's Judges can be. Do you know why? Some of our country's judges; have way to much ability to make up what they want to impose on people.


Initially, the Sentencing Guidelines were mandatory; a judge was required to impose a sentence that fell within their recommended range. In 2005, however, the Supreme Court ruled that the Guidelines, mandated by Congress, were unconstitutional because they effectively allowed the legislature to usurp a role reserved for the judiciary.

Now, the Guidelines are non-binding and purely advisory. A district judge must consider them, but is not bound by them. Thus, she is free to impose a sentence outside the Guidelines range – either above or below – in service of the sentencing factors.

I posted your page here:

Peepthisout said...

If he hasn't been sanctioned he sure as hell should be. And to add to this I don't believe a sanction, ever gives anymore than a slap on the wrist, when many of these type injustices should be given a proper punishment. This should also go for prosecutors who are only out to have high conviction rates. It is up to local residents who are active voters to learn about the person seeking a job by election and if that person will not take advantage of their authority just for high #'s of conviction.Did you know that a prosecutor who is seeking an indictment from a grand jury can straight lie to g jurors to get the indictment and suffer no recourse whatsoever? Try reading the lawyer's ethics creed (remember words are very important) it says they should be honest, but says nothing about them not being able to lie!! CHECKS AND BALANCES for all who work in government in an authority position, AND WE AS VOTERS MUST DEMAND IT BE SO!!!

Steven Michael Seys said...

Perhaps if the Legislature and Congress would repeal those statutes and rulings that place judges above the law, immune to the consequences of violating the law in the execution of their duties, the judges would see their role as presidents of the courts and administrators of justice more clearly and ignore those urges to abuse their power over others' lives. We hear the statement, "No one is above the law," quite often bantered about in politics these days. It's time to make it true.

Anonymous said...

The Judge's conduct may help the case for an expanded full time public defender's office.

His court purportedly subscribes to "the wheel" for indigent appointed counsel. In fact, there is a limited cadre of buddies-of-the-judge and never-try-a-case lawyers who take 80% of the cases in that court. They never go to trial or to hearing. That group is compromised former judicial colleagues, former prosecutorial buddies, and even a former relative by marriage who will sometimes handle four or more cases a day. The records are there, and they are public. The local news media hasn't been interested enough until now, despite multiple tip offs.

The judge has been known to hold up the business of the court for members of this cadre to arrive, so that he can appoint them the new cases instead appointing readily available layers who are already present in the courtroom and looking for work who might --gasp-- actually try to defend the accused. He will brazenly phone his buddies from the bench in open court, inviting them to court and advising how many cases he can give them and how much money they might make.

When an appointed lawyer actually tries to fight a case, the judge will often use any means available to remove that appointed lawyer from the case, and appoint a different lawyer to move the case. That statistic isn't readily available, but doubtlessly that court has by far the highest rate of removal and substitution of court appointed lawyers.

Anonymous said...

Scott, Bexar County Court Administration compiles the list of court by court stats each month. You should be able to file an open records request and get a copy of those records.

Anonymous said...

This happens every day. I have proof

Amber V said...

In Travis County judges routinely sign warrants for people’s arrest for violations of bond or probation on motions filed by non-attorney POs ex parte, they require no evidence and they let the attorneys know later “as a courtesy.” When you show up for court the attorney picks up a Probation report- which the judge has frequently already reviewed with the PO and written a number on in pen that represents the amount of years they are going to send the person to prison. All of this is done before the defense attorney even arrives and the defense attorney is expected to then negotiate with the judge while the ADA just stands there. When we refuse and set it for a hearing it is made clear to the client that they will most likely get a longer sentence if they exercise their rights. It is so heavy handed and over the top that I have had no client that wants me to take all legal means necessary to fight it. I have openly challenged it repeatedly, and sometimes the judges will back down if you are a squeaky wheel, but the vast majority are just screwed by the practice. I have been telling our county commissioners how important it is that we get the MTR numbers, but unless media starts pushing nobody is budging. It’s an unconstitutional and unethical nightmare.

Anonymous said...

The Judges and DA's file monetary bonds against that person who they are criminally prosecuting. It's like Hotel California, "you may check out but you can never leave!!!" This person was soon to be free from the slave-system, they knew was soon to be free. In order to keep the money rolling in The County and Judges are operating as a criminal banking operation by placing GSA bid bonds, and performance bonds, payment bonds against that living person's name. The County, State and all the officials know the longer you stay in the system the more money they make on the bonds. It matters not if you're innocent. Your liberty does not matter if there's money to be made it is banking and securities fraud. Our courts are operating like banksters because our State is in receivership (bankruptcy)we are sold into involuntary servitude. It's all a matter of time before we are all slaves to this beast system of corruption. The abuse of power must stop.

Shane Phelps said...

This is not just judicial misconduct, it is a crime. About 15 years ago, when I served as chief of the Prosecutor Assistance Division of the Attorney General’s Office, I was asked by the Chief Justice of the 4th Court of Appeals to serve as a special prosecutor for a contempt proceeding against a sitting county court at law judge in Bexar County. The judge had refused the order of the 4th Court to cease and desist in conducting a trial where the defense attorney was a legislator and the legislature was in session. After a hearing before Judge Frank Onion, the 4th Court met en banc and, after hearing arguments, held her in contempt and sentenced her to jail for 30 days. She left the court in handcuffs. It was subsequently learned that she was engaging in behavior very similar to this judge’s conduct. She was, among other things, extending defendants on probation sua sponte, sometimes in excess of four years on misdemeanor offenses. After she completed her jail term, the District Attorney at the time indicted her for official oppression. She was convicted and was removed from the bench by operation of law. The same thing should happen here. This judge’s conduct is outrageous and criminal and he needs to be removed. Thank you for bringing it to light.

Anonymous said...

He should be disbarred for the camo robe alone.

Anonymous said...

Disbarred or disrobed?

Anonymous said...

To: Amber V, clients SIGN for probation agreeing to all the terms. IF a person submits positive U.As and has no documentation or what documentation they show is not consistent with what they are taken the file is sent to court and court makes a determination. P.O has nothing to do with this they only supply the FACTS of what is going on. The judge makes the decision to those shown facts and it is considered evidence clients do not need to be notified of what they already know they are doing. Many, and I mean MANY clients will claim they are using only diet pills when in fact they are abusing drugs and has been confirmed by a drug lab who voiced it is not consistent. Yes they need and have a right to defend themselves but this process is fast and a warrant is issued because a client can harm themselves or others. The client is not supposed to have ANY violations period. But hey next time lets take more time and let clients continue to find ways to wiggle out of criminal behavior and then go out and drive and kill YOUR whole family. Please do not switch your stance and complain that the P.O failed to get them off the street fast enough. Just bury your loved ones and shut up, No Violations Period.............If I was on probation I would not have any violations including " supposed false positives" But I am not a CRIMINAL EITHER,