Podcast: New evidence of Rodney Reed's innocence, first thoughts on the Atatiana Jefferson shooting, and the Mystery of the Disappearing Misdemeanor Arrests

Here's the latest Reasonably Suspicious podcast from Just Liberty:


This is the October 2019 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice policy and politics. This month, my cohost Amanda Marzullo and I interviewed attorneys for Rodney Reed, who is on death row with an execution date of November 20th. We plumbed unknowable but interesting questions about misdemeanor arrests, discussed the sad, grim, story of Atatiana Jefferson's shooting in Fort Worth, and complained that the moments spent reading and talking about a new ACLU report on how to end mass incarceration are time we'll never get back. :)

Intro

Okay, it's probably a crime for a former justice of the peace to pimp slap a Yankees fan at an ALCS game in Houston and make him cry, but it's also pretty funny.

Top Stories

• First takes on the Atatiana Jefferson shooting in Fort Worth (2:34)
• Evaluating ACLU decarceration recommendations for Texas (8:34)

Interview

This month, Mandy and I spoke to Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer Brown in Houston on the Rodney Reed case. Reed is scheduled to be executed on November 20th. (14:38) This is excerpted from a longer conversation. I'll publish the full interview, which goes into more detail about debunked forensic testimony in the case, separately in a couple of days.

Suspicious Mysteries

Why have misdemeanor arrests declined? Why didn't they decline earlier when crime first dropped? What do we really know about why crime dropped or the relationship between crime and arrests? Mandy and I discuss some known unknowns. (27:15)

The Last Hurrah (36:40)

• Hard to reprimand Texas judges
• Years-long backlogs at crime labs
• Message sent by jury in prison-guard murder trial

As always, I've ordered a transcript and will add it below the jump when it comes back. Enjoy!

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.

Don't make excuses for bad choices by Harris County judges

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County's magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn't a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren't too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate's disciplinary case flat-out contradicted those made in her court.

Finally, I couldn't disagree more with Grits contributing writer Sandra Guerra Thompson, who was quoted in the story thusly:

"I'm not sure the judges intended to do anything inappropriate in giving those instructions," said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center. "I think this is part of the history - misunderstanding that magistrates are not the clerks of the judges. They are themselves hired to be independent judges."

That's giving them way too much credit, and cover. Since Grits first focused on bail questions in Houston back in 2005, the failure to grant personal bonds has been the central problem and it's been patently obvious for years that local elected judges were the culprits behind it. There's no "misunderstanding," it was intentional, and an abuse of power. That's why it took the federal courts to change things.

The idea that there was a structural, "cant get there from here" problem was always a lie. There's really no reason now for the press or advocates to pretend otherwise.

MORE: I should have called out Judge Michael McSpadden's comments from the story, too, and the more I look at them the more I think they deserve an addendum:

State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn't trust the lower-level jurists not to make errors. 

"Almost everybody we see here has been tainted in some way before we see them," he said. "They're not good risks." 

The judge said he was concerned defendants would be released on bond only to be arrested on another offense. Many had casual attitudes about showing up for court, he said. 

"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents," he said. "Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you could tell a young black man ... They teach contempt for the police, for the whole justice system."

Let's be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they're being advised by anybody.

It wasn't Black Lives Matter or defendants' families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

AND MORE: ACLU of Texas has called for Judge McSpadden's ouster based on these comments, calling on the State Commission on Judicial Conduct to remove him. Said ACLUTX's Terri Burke, "When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can't be trusted, it's time to take action. This kind of flagrant racism has no place in our justice system." That said, Grits considers it far more likely that voters will remove McSpadden in November than that the SCJC will do so any time soon. He's facing a reasonably strong candidate, and Harris County judicial races appear poised to flip en masse from red to blue. OTOH, the SCJC couldn't possibly remove McSpadden by the end of the year, and based on its history, is unlikely to remove him at all.

Magistrates admit Harris judges pressured them to require money bail

Three Harris County magistrate judges were sanctioned by the State Commission on Judicial Conduct for failing to grant personal bonds to low-risk defendants who deserve them, reported the Houston Chronicle, and their reaction seems, to this writer, tantamount to an admission of the allegations in the federal litigation pending at the 5th Circuit.

The rebuke by the Texas Commission on Judicial Standards cites hearing officers Joseph Licata III, Jill Wallace and Eric Hagstatte with a public admonition and ordered them to take additional educational instruction. 

The order from commission chair, Justice Douglas S. Lang, said the board took into consideration that the hearing officers testified on Dec. 7 in Austin that they had been told by Harris County criminal court judges they should not grant cash-free bonds or more affordable bond rates. They said they feared they would be fired if they didn't comply. (emphasis added)

So the magistrates' defense was that elected judges ordered them not to grant cash-free bonds! Too bad that admission wasn't part of the evidence in the case that went to the 5th Circuit, but there's a hearing tomorrow to decide whether these admissions amount to evidence the judges withheld in the civil case. Regardless, there's plenty of other evidence being considered that shows the same thing.

Kudos to state Sen. John Whitmire for filing the complaint, it got the magistrates to cop to some pretty important admissions.

RELATED: In Dallas, the Texas Fair Defense Project and the ACLU of Texas just filed new litigation similar to the bail suit in Harris County, in which TFDP is also participating. A press release came via email just minutes after Grits hit "publish" on this blog post. MORE: See coverage of the new case from the Dallas Morning News.

Police accountability bills bottled up by House leadership, and other stories

Here are a few odds and ends that merit Grits readers attention while mine is focused elsewhere:

Tragic shooting colors legislative debates
A Balch Springs cop who shot a fleeing 15-year old with a rifle has been fired from his job and faces murder charges. See the Dallas Morning News coverage. This news spurred the black caucus in the Texas Legislature to issue a stern complaint that none of the important police accountability legislation proposed this session has received a vote on the House floor. Their frustration surely contributed in part to the death of HB 2050, which expanded secrecy provisions related to police misconduct cases.

Sandra Bland Act gutted in senate
The Senate Criminal Justice Committee this week passed out a radically stripped down version of the Sandra Bland Act, but quite frankly it's hard to get too excited about the minimalist items left in the bill. Wrote the Texas Tribune's Jonathan Silver:

Whitmire's version most notably removes language that would ban arresting people for offenses that generally only have fines as a punishment. Earlier versions of the bill also tried to make it easier for nonviolent people in jail to receive personal bonds. Whitmire said fine-only offenses would be addressed in a separate bill, as the Sandra Bland Act is "primarily a mental health, accountability" bill.

The problem with that bit of reportage is that the "separate bill" was SB 271, which had earlier that day appeared on the same agenda with the Sandra Bland Act. But Chairman Whitmire pulled that bill off the agenda hours before the hearing, much to the consternation of the bill author and supporters who believed they had sufficient bipartisan support to pass it out of committee. So Whitmire was pledging to address a problem in a bill which he had already killed just hours before. SB 271's companion, HB 574, is in the Calendars Committee and has yet to be posted for a floor vote. Unless leadership adds the bill to a Major State calendar, it's probably too late for it to be heard.

Remembering (the real) Sandra Bland
Meanwhile, as Grits has pointed out before, it's a bit anomalous to pass a "mental health accountability" bill in response to the Sandra Bland story because she was not, in fact, mentally ill.

Pensions and bill killing
Governing magazine has a nice feature on Houston billionaire John Arnold's efforts to reform public-employee pension plans. Meanwhile, the House debate over Houston pensions ramps up Monday, and every minute it goes on, legislation on the other side of that bill on the calendar dies. The lower chamber, which yesterday ended their workday at 3 p.m., has mapped out a leisurely, care-free stroll toward the Thursday deadline for the House to consider House Bills, not the frenzied pace of work one would expect as hundreds of bills approach a very final deadline. At this point, the House doesn't seem to have much appetite for passing any more legislation and everybody just seems to want it to be over.

Who can settle Harris County bail litigation?
A newly elected Democratic District Judge in Houston has asked the commissioners court whether he can settle with plaintiffs in civil rights litigation against the county's money-based bail system. The commissioners courrt replied that they don't control whether or not he settles, but his lawyer was appointed from the county attorney's office and told the judge she could not settle without permission from higher ups. It's an interesting question: If individual judges start to settle, how long can the county's oppositional approach remain viable?

Of trees, ropes, race, judges and capital punishment
A decidedly un-woke judge faces retraining for lynching suggestion.

Coda to Willingham saga: Did prosecutor commit misconduct?
Jordan Smith at the Intercept has a story from a trial in Corsicana to determine whether the prosecutor in the Todd Willingham case engaged in misconduct when he concealed a deal with a jailhouse snitch who testified against the defendant.

Smith County Judge was sexting during State Commission on Judicial Conduct meeting

Smith County Judge Joel Baker recently resigned from the State Commission on Judicial Conduct after it was revealed he'd been sexting with a woman not his wife including, allegedly, during commission meetings in which they were evaluating alleged judicial misconduct by others.

Baker is County Judge - which is essentially a mayor-like position on the county commissioners court, not a judge presiding over cases - but for reasons of historical anachronism, there is a county judge's position on the SCJC and he's that representative. A lot of the press coverage so far seems to have been written by reporters who don't understand what the County Judge or Commissioners Court does - Baker is not presiding over cases. (CORRECTION: A commenter informs me Baker, who is an attorney, does preside over some probate cases.)

Reported a local station, KLTV:

The woman said Baker sent her a friend request on Facebook last year. She said she's never met the judge and didn't know him personally.

"[Baker] has always been sexual with me, and he’s made comments and [at first] I never reacted to them," the woman said. "Then in October when me and my boyfriend broke up is when it got really explicit."

After posting about the breakup on her page, she said she got a private message from Baker. 

"He messaged me and said something along the lines like, 'hey how are you. I would love to come drink a glass of wine with you,' is how it started. That’s how our initial contact was."

A friend recommended she contact McLemee to verify whether the messages originated from Baker or an imposter. Together, McLemee and the woman put together an aggressive plan to keep accelerating the online relationship.

The time stamps on the Facebook messages coincide with county business hours, taxpayer funded out-of-town conferences and judicial conduct hearings in Austin.

In one message sent on February 10 at 2:37 p.m., Baker explains that he’s at a state committee meeting in Austin, looking “at complaints about judges.” Dozens of sexually-charged messages follow.

"Had Joel Baker simply said 'I am in a very important court hearing. I cannot talk right now. I will contact you after I get off work today,'" McLemee said. "I would have had the utmost respect for that response."

In addition to the messages, the woman says she received nude photos of Baker exposing his genitals. The woman admits she consented to the sexual conversations and requested the photos, even sending some explicit photos of her own.

Calls are already coming for Baker to step down from his county judge post, as well, and it's a near certainty these allegations would sink any future reelection campaign in Smith County.

One also can't help thinking that this news casts a different light on older allegations that Baker had been videotaping a neighbor-girl inappropriately through her bedroom window.

Baker's one of those politicians who touts his Christianity as though God Himself had endorsed him, so these allegations, if true, raise particularly delicious ironies.

One also wonders, though, if they raise issues about the effectiveness of the State Commission on Judicial Conduct, whose members apparently didn't notice that a colleague was more focused on inappropriate texting than their work, or if they noticed, didn't say anything.

Grits considers the SCJC essentially toothless, and hasn't really looked to the agency for redress vs. bad judges since they declined to publicly go after Verla Sue Holland, the former Court of Criminal Appeals judge who slept with a prosecutor as a trial judge while presiding over a capital case in which he was first chair. If that judicial conduct doesn't merit public sanction, what does?

According to SCJC annual reports, out of more than 4,400 complaints against judges over the last four years, the commission only disciplined judges 249 times, and in 79 percent of those cases (196), the results were never made public. When a Texas judge engages in misconduct, the chances are vanishingly scarce that the public will ever learn of it from the SCJC, even when the agency finds the complaint had merit.

In that light, perhaps the ennui associated with a do-nothing job contributed to Judge Baker's inability to control his sexting during SCJC meetings. When most of the work you do is fruitless and irrelevant, it's hard to keep paying attention, although there are plenty of time killing phone games this writer would recommend over sexting.

None of this is to diminish the efforts of SCJC staff, who in my observation are acting in good faith and trying to do a good job. But judging by outcomes, the political appointees on the commission do not seem particularly interested in holding Texas judges accountable in any meaningful way. And now we learn that, at least in the case of this one commissioner, that could be because his attention was focused on his own alleged misconduct, which he surely, and understandably, believed would never be brought to light.

Texas courts illegally jailing motorists for unpaid tickets, and other stories

Here are several more items which merit Grits readers attention even if I don't have time this week to turn them into independent blog posts:

• Check out a top-notch story from BuzzFeed, of all places, with the teaser, "People in Texas get thrown behind bars just because they can’t afford their traffic tickets. That’s a disaster for people who are already struggling. It’s also completely against the law." The article delivers as promised, read it.
• See video of an hour-long Texas Tribune festival panel on criminal justice. About half of it was spent on culture-war questions - gun control and the death penalty - and about half on subjects where there was largely bipartisan agreement.
• Grits disputes the premise behind this headline: How does one measure whether there's a "shortage" of police when crime is down? Maybe there's just the right number and they need to be diverted from wasteful activities like responding to false home burglar alarms.
• Is it okay for a judge to tell petitioners to F*%# off if they do it in Italian slang? The Commission on Judicial Conduct issued a warning to a Fort Worth JP for such behavior.
• I'd forgotten that, in addition to the new state data published on police shootings, the Houston PD earlier this year launched a database which includes historical data.
• See coverage of the disgraced Hill County Sheriff and two of his top managers who were convicted of tampering with government documents, claiming officers received training when they had not. 
• Contract negotiations between San Antonio and the union broke down because the city refused to drop a lawsuit challenging an "evergreen" clause that keeps the old terms going for ten years after their meet-and-confer contract ends. Good for Mayor Taylor. That's a terrible, antidemocratic provision they should never have agreed to in the first place. It pointlessly ties the city's hands.

Former prosecutor, now a judge, discplined by state bar for role in texting scandal

More fallout from the Polk County case where Judge Elizabeth Coker was caught texting suggested questions for witnesses to the prosecution team in criminal cases during trial. In the latest episode,  then-prosecutor, now District Judge Kaycee Jones was the target of the state bar's public disapprobation, receiving one of the state bar's rare public reprimands for exchanging texts with Judge Coker and relaying them to the first chair. Via the Houston Chronicle ("State bar reprimands former prosecutor in texting scandal," May 27):

The Texas Bar Association has issued a public reprimand to state district Judge Kaycee Jones for her role in clandestine texting during a criminal trial while she was a prosecutor and before her election to the bench last year.

Jones, who oversees the 411th court in Polk, Trinity and San Jacinto counties, signed the agreed judgement citing her for "professional misconduct" just before she came in front of the bar's grievance panel for a hearing this month.

Jones, 39, was an assistant Polk County prosecutor for 11 years before becoming a judge in 2013. ...

The agreed judgment documented how Jones had received text messages from state district Judge Elizabeth Coker, while she was seated on the bench during a trial in a child injury case.

Jones, then an assistant prosecutor and observer during the trial, wrote down the message that suggested a line of questioning to bolster the prosecution's case and relayed it to the lead prosecutor.

The improper communication violated the "ex parte rule" which forbids judges, who must remain impartial arbiters, from communicating about a case unless both sides are present. ...

An ethics expert at South Texas College of Law, Jim Alfini, also said the state bar's action was a mere slap on the wrist for a serious violation.

"Jones was an admitted accomplice to a serious judicial ethics violation," he said. "They went very easy on her. I could imagine a much more severe sanction."

But judicial ethics expert and author Lillian Hardwick said Jones will not come through this unscathed as she will be required to disclose the reprimand on her bar record for the next 10 years.

Now that the state bar has publicly spoken, one wonders if the State Commission on Judicial Conduct will follow up to evaluate Judge Jones' fitness to serve on the bench?

Judge who berated jurors could have violated judicial canons

Texas Lawyer's John Council has a feature (Nov. 21) on the story (covered here on Grits) of a visiting judge in Tarrant County berating jurors for issuing a verdict with which he disagreed in a DWI case. The conclusion of the story suggests the judge may have even violated canons of judicial ethics:

There's a reason why judges are well advised to keep their thoughts about a jury's verdict to themselves, said George Gallagher, judge of the 396th District Court in Tarrant County.

"The Code of Judicial Conduct is the first thing, to start out with. And then you have, on top of that, the Texas ethics rules—the rules that lawyers and judges have to follow. And both of those codes emphasize that, whether you're a judge or a lawyer, you should take no action that can contaminate jurors," Gallagher said. 

Those same jurors may be called back for service years later, Gallagher noted, and it could become problematic if during voir dire they detail their prior bad experience with a judge. 

"And then you've got 45 other people that say, 'Yeah we agree with them,' " Gallagher says. 

Judges normally refrain from publicly disagreeing with jurors because of Canon 3 of the Code of Judicial Conduct, according to Lillian Hardwick, an Austin lawyer who consults on judicial ethics issues and is co-author of "The Handbook on Texas Lawyer and Judicial Ethics.'

She points to Canon 3 B (4), which requires that a judge "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity ... " and Canon 3B (5) which requires that a judge "shall perform judicial duties without bias or prejudice."

Another reason judges usually refrain from publicly disagreeing with jurors is it may create recusal issues for the jurist later, Hardwick said.

Former prosecutor, now a judge, embroiled in Elizabeth Coker texting scandal

Following Polk County District Judge Elizabeth Coker's resignation in the wake of revelations that she'd texted advice to prosecutors during trials, the prosecutor in the watershed case, Kaycee Jones, who was since elected to a judgeship, also finds herself in hot water, AP reported Oct. 23. In a letter to the state bar's disciplinary counsel:

Voters should approve "Sharon Keller Disciplinary Case Memorial Amendment"

The Dallas Morning News, with tongue only partially in cheek, declared that Proposition 9 on the November ballot should be called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment.” They explained, "The State Commission on Judicial Conduct reprimanded Keller with a public warning in 2010 for her actions in closing the court before a death-row inmate could file a last-minute reprieve. Keller later got a special court to dismiss that reprimand, since the Texas Constitution does not specifically say a disciplinary case could lead to a warning, although the state’s legal code does."

See Grits' analysis of the underlying issues following oral arguments in Judge Keller's case. I suppose this was necessary at some level, but the Judicial Conduct Commission had ample authority to reprimand Keller legally, just not the cojones. Like the Ethics Commission, the Judicial Conduct Commission was seeking any excuse to reduce the penalty while acknowledging Keller's violations and ended up doing so in a ham-handed way that breached their constitutional authority. Still, as the Austin Chronicle noted, the amendment "would remove a disincentive to the conduct of open proceedings" and by that reasoning alone it deserves passage.

Texting while judging: Judge texted assistance to prosecutors during trial(s)

The Houston Chronicle today published an update ("Ex-prosecutor admits helping judge accused of sending secret text messages") on an ugly case of alleged judicial and prosecutorial misconduct out of Polk County. The article opened thusly:

A former prosecutor has confessed to assisting a state district judge who is accused of texting clandestine messages from the bench to bolster the prosecution's case during an East Texas criminal trial last year.

Such communication by Polk County Judge Elizabeth Coker was a violation of judicial impartiality that's required during court proceedings, said the former Polk County Assistant District Attorney Kaycee Jones. Jones has since been elected as a state district judge for Polk, Trinity and San Jacinto counties.

Her confession and a photo copy of Coker's text message - detailing a line of witness questioning that would aid prosecutors - were outlined in a letter Jones sent to the Texas Bar Association's disciplinary counsel, which is investigating the incident. The Houston Chronicle, which first reported the allegations against Coker earlier this year, recently obtained a copy of the letter.

For her part, Jones wrote, "I deeply regret that I acted in this manner. It was wrong and I knew better." An official in Jones' office said she could not comment on a pending investigation.

So not only is the judge who texted advice to prosecutors still on the bench, the assistant prosecutor accused of passing on her texts has herself been elected state district judge! What an embarrassment. Further evidence that the mechanisms for holding prosecutors and judges accountable for misconduct in Texas simply aren't effective or functional.

A report by a court observer from the DA's office found that this was "not the first time" the judge had provided such ex parte assistance and the lead prosecutor said her second chair was "in her ear all the time regarding information she believes to be given her by Judge Coker via text during trial," not just in this case but in others. Further, "Besides complaints about Coker coaching prosecutors by dictating questions, complaints have been filed against her alleging discrimination in picking attorneys to handle indigent cases."

As Mark Bennett pointed out, the surprise here isn't that a prosecution-oriented judge coached the state's attorney ex parte but that she did so in a form that could be documented and traced instead of face to face. Pretty darn brazen.

Lege should send constitutional amendment to voters on Judicial Conduct Commission

The State Commission on Judicial Conduct receives about 1,200 complaints per year against Texas judges, executive director Seana Willing told a House Appropriations Subcommittee today. About half of those are people who don't understand the system and are improperly trying to use the commission as a sort of appellate process. Of the other 600 or so, most complaints are dismissed. Last year the commission gave 49 sanctions to Texas judges, she said,  down from a high of 79 or 80 several years ago. Almost all of the sanctions were "private" and the public may never know about them.

Sunset Commission staff complained at the hearing that the commission's confidentiality provisions wouldn't let them adequately evaluate the process, recommending the agency be evaluated again in six years instead of twelve. Moreover, Sunset implied that there really wasn't a good reason for so many informal findings to be secret, and one legislator pointed out that their own foibles were instantly public.

Though she never mentioned her by name, Willing raised the conundrum that caused Court of Criminal Appeals Presiding Judge Sharon Keller's misconduct finding to be overturned: The commission has access to a complete range of punishments in its secret proceedings, but in its public proceedings the range of punishments they can give are inexplicably limited. Sharon Kellers' misconduct trial was one of the commission's rare public proceedings (they've had 12 in 10 years) and their ruling was overturned because they chose to "warn" Keller instead of "censure" her. From any perspective it was an absurd and unsatisfying outcome, with the punishment deleted but the misconduct findings remaining intact. To fix the problem would require a constitutional amendment, said Sunset staff, that would require a one-time cost of $105,000 to hold an election.

I hope the Lege does send such a constitutional amendment to the voters. Sharon Keller's misconduct trial demonstrated there's massive confusion over conflicts between the state constitution, the statutes, and Texas Supreme Court rules governing judicial oversight. And Grits surely agrees with Sunset there's no good reason judicial misconduct findings should be secret.

Investigator: Judge allegedly texted prosecutors tips during trial

A recent Houston Chronicle article behind their new paywall had the story of a judge who allegedly favored the prosecution so adamantly that she apparently couldn't help but give out  friendly advice to help along a weak case. Reported the Chron (Jan. 18):

A Polk County district judge is accused of sending text messages from the bench to an assistant district attorney to help bolster the prosecution's case during a trial, according to an investigator's report.

State District Judge Elizabeth E. Coker declined to return phone calls to comment on the allegations laid out in a report by Polk County investigator David Wells.

Wells was Polk County District Attorney Lee Hon's criminal investigator when he made the report, but he now is a detective with the Angelina County Sheriff's Department.

After reviewing the report written five months ago, Hon issued a statement this week saying he had found no communications from Coker that had influenced a trial's outcome. He added that he expects the case to be reviewed by the State Commission on Judicial Conduct for possible ethical violations that could require disciplinary action against the elected judge.

Regrettably, this only came to light after the communications were discovered by an outsider - the prosecutors receiving these ex parte messages didn't report the judge on their own. Moreover, it appears to have gone on in other cases. The lead prosecutor, Beverly Armstrong "advised it was not the first time, as [assistant prosecutor Kaycee] Jones is in her ear all the time regarding information she believes to be given her by Judge Coker via text during trial," according to an investigator's report quoted by the paper. Pretty brazen, it seems.

Houston attorney Mark Bennett at Defending People claims such behavior is common among Harris County judges, declaring "On more than one occasion I’ve seen Harris County judges coaching prosecutors during breaks in trial." Bennett said he's less surprised at the "underlying contempt for the adversarial process" so much as the use of an "easily documented" means of communication. Experienced judges giving ex parte advice, he seemed to imply, would never leave a paper trail.

If the allegations are true, what are the odds the judge and/or the prosecutors involved will be sanctioned?  Suggest betting lines for each in the comments.

Judicial Conduct Commission facing Sunset review in April

Grits hasn't had a chance to read the Sunset Advisory Commission report (pdf) on the State Commission on Judicial Conduct, nor the agency response (pdf), nor the agency's self-evaluation (pdf), but I at least wanted to give readers the links as well as point out bloggerly critiques at Texas Watchdog and the Burnt Orange Report, both of which fault the agency in particular for a lack of transparency. A public hearing April 10 will focus on the agency (with TDCJ and correctional managed health care up in June, see their meeting schedule [pdf]).

One key Sunset recommendation for the Judicial Conduct Commission, the first one, in fact, harks back to the Sharon Keller fiasco where the commission imposed what turned out to be an illegal sanction after adopting findings of fact critical of the judge's decision making and forthcomingness with her fellow judges in the whole "We Close At 5" brouhaha. Sunset Staff recommended Texas adopt a "Constitutional Amendment," to "Authorize the Commission to use its full range of sanctions following formal proceedings."

Another key problem identified by Sunset staff was also readily apparent in the Keller fiasco, in retrospect: "Inconsistencies Between Its Statute and Rules Create the Potential for Litigation and Inefficiencies in the Commission's Operation." Indeed, discussions by commissioners during that episode made it clear this was an ongoing issue that arises for them frequently, whereas the first recommendation was more or less unique to Keller's situation.

Other recommendations and critiques, say the two blog posts, related to a lack of transparency even (perhaps particularly) with Sunset staff. I'd have to read the reports themselves to say more, but anyone interested in participating in the agency's Sunset process should find all they need in the above-linked documents to get engaged.

Grits readers' disdain prompts closer look at Judicial Conduct Commission Sunset review

With the State Commission on Judicial Conduct up for review by the Sunset Advisory Commission, I thought it worthwhile to ask Grits readers - who as a group are probably more aware of such matters than average Texans - whether they thought the Commission was doing a good job. The result was one of the most lopsided reader polls Grits has ever conducted. Of the 173 respondents, the answers were:

Yes: 3%
No: 62%
Only when the media is paying attention: 27%
Don't know/can't tell: 6%
(Figures don't add to 100% due to rounding)

In the agency's self-evaluation report (pdf, hereafter SER) for the Sunset Commission, the agency opined (p. 3), "A judicial office is a public trust. In order to function effectively, the system must be assured of the public's faith and confidence." A key goal of the agency's oversight work, says the SER, is to ensure that "public confidence in the integrity, competency, impartiality and independence of the judiciary is preserved." If Grits readers' opinions are any indication, the SCJC has lately been of little assistance in that task.

Let's take a closer look at the SCJC in light of its pending Sunset review. Asked "What key obstacles impair your agency's ability to achieve its objectives, the SER responded:

1) Budget cuts and restrictions on general revenue spending continue to impair the agency's ability to achieve its objectives.
2) Incomplete, outdated, and/or inconsistent rules and procedures also impair the agency's ability to achieve its objectives.
3) The size of the board - 13 members - is too large, costly and unnecessary.

After the fiasco over the SCJC's attempt to extend leniency to Judge Sharon Keller - where they found she'd engaged in misconduct but imposed a lesser, illegal sanction that was overturned on appeal as unconstitutional - I'd add 4) Bending over backwards to let judges (especially district and appellate judges) off light. And if Grits readers' opinions are any indication, you could tack on: 5) Lacking public confidence in the agency's judicial oversight function.

Asked by Sunset, "What are your agency's biggest opportunity for improvement in the future?" the agency replied: "If the Texas Procedural Rules for the Removal or Retirement of Judges and the Texas Code of Judicial Conduct were revised and updated, the agency would be in a better position to serve the public and the judiciary through clear and consistent rules and canons that reflect current changes in the law." The Code of Judicial Conduct (pdf) and the Procedural Rules for the Removal or Retirement of Judges (pdf) are both promulgated by the Texas Supreme Court, so the agency has no rulemaking authority to correct the perceived shortcomings in (2) above. The agency's enabling language is in Article V, Sec. 1a of the state constitution, while its statutory authority lies in Chapter 33 of the Government Code.

The agency's budget for FY 2010 from the general revenue fund was was $1,001,626, cut slightly to $948,000 per year over the next biennium.  But since they only spent $932,303 of their budget in 2010, that minor haircut shouldn't really cut into their activities too dearly. The agency has 14 FTEs, or full-time equivalent employees, led by executive director Seana Willing.

The number of disciplinary actions issued annually has risen in recent years before dipping in FY 2011:

2007: 45
2008: 56
2009: 70
2010: 89
2011: 42

The number of dismissals has also generally risen:

2007: 1,008
2008: 966
2009: 1063
2010: 1,208
2011: 1,192

Municipal court judges and JPs represent 39% and 21% respectively of all judges under the SCJCs jurisdiction, but they represented a disproportionately small number of total complaints, while they were more likely to be targets of significant discipline: According to the agency's annual report (pdf), "in fiscal year 2011: justices of the peace received 19% of the complaints filed, but accounted for 55% of all discipline issued by the Commission, a fairly significant increase over fiscal year 2010. Disciplinary actions against district and appellate judges experienced a sharp decline to 7% and 0% respectively. Municipal court judges received 9% of the complaints filed in fiscal year 2011 and accounted for 24% of all discipline issued by the Commission in fiscal year 2011. Consistent with prior years, 44% of all cases filed in fiscal year 2011 were against district judges," who accounted for just 12% of all judges under the SCJC's jurisdiction and 7% of disciplinary actions last year. This makes it appear that district judges and appellate are receiving less scrutiny despite receiving more complaints, and that the SCJC reserves its "hammer" for the lowest-level jurists. That's not encouraging.

Where do cases come from? A third relate to criminal cases. Again from the latest annual report: "Fifty-four percent (54%) of those cases were filed by civil litigants, their friends or family members, or by pro se (self-represented) litigants. Criminal defendants, including traffic defendants and inmates, accounted for approximately 33% of the cases. Three percent (3%) of the cases were filed anonymously and only 5 cases (0%) were Commission-initiated."

Many complaints are dismissed because staff deem they do not specifically address misconduct under the agency's jurisdiction under Supreme Court rules: "Finally, of the 1,192 cases closed [in FY 2011], approximately 51% alleged no judicial misconduct. Approximately 28% were dismissed after a preliminary investigation and approximately 21% were disposed of following a full investigation requiring a response from the judge." (One of the legislative changes suggested below was to allow reconsideration when those complainants bring forward more information.)

Among legislative changes suggested in the SER to "assist" the agency in "performing its function":

• Amending the definition of "willful and persistent misconduct" to include chronic failure to obtain required judicial education hours.
• Amending statutes and rules surrounding reconsideration of dismissed complaints, allowing for reconsideration for good cause or when additional information alleging misconduct is presented.
• The statute should be clarified so "that judges who are removed from office by a Review Tribunal following formal proceedings initiated by the SCJC forfeit their retirement pensions upon removal."
• Require retired judges who are "eligible to sit by assignment" to notify the Presiding Judge of their administrative region and have their name removed from the list of eligible judges if they receive a Public Reprimand, Public Censure, or resign in lieu of discipline. "Currently there is no requirement that the judge request that his/her name be removed from the list and there is consensus among the Presiding Judges that they have no legal authority to remove a judge from the list.
• The Commission wants to extend confidentiality provisions governing their work to include information presented at trial. (A terrible idea, IMO; legislation to do this was rightly vetoed by Perry in 2009. It was re-filed during the most recent session but went nowhere.)

Another recommendation I'd have is better communication with the public about judicial misconduct when they discover it. Their public statement on the William Adams case was its first in four years. Further, e.g., on their website under case information, we only get detail (oddly) about Judge Sharon Keller's case. While I'm sure that's what's most often requested, why not publish similar data on all cases online? There is topline information regarding other complaints resulting in public or private discipline listed here.

Relatedly, I'd like to see more records opened up after the Commission's case evaluations are complete. Under current rules, the public can't really know whether the agency is doing a good job or not, and Grits readers, at least, are under the impression they are not.

Since the Sunset process is focused on what the Legislature can do, the self-evaluation report fails to inform us what similar changes the agency thinks need to be made by the Texas Supreme Court rules - the main barrier identified in the SER to improving their operations. No opinions at all were proffered on that score. Perhaps during the hearing process some of those will be identified on the record and the high court can take them up.

What else do they need to fix at the State Commission on Judicial Conduct? Let me know your thoughts and opinions in the comments.

See related, recent Grits posts:

• Advocacy groups compiling Sunset wish lists ... do you have yours?
• Holding Texas judges accountable for past misconduct
• Few cases against judges sustained by Judicial Conduct Commission

Advocacy groups compiling Sunset wish lists ... Do you have yours?

At the Texas Tribune, Ben Philpott has a brief item on how various liberal and conservative groups are approaching the opportunities presented by the Sunset review of Texas Department of Criminal Justice.

The Texas Civil Rights Project, according to attorney Scott Medlock, is "proposing measures he says could improve prisoner conditions while cutting costs for the state, like reviewing sentencing policies that keep geriatric inmates behind bars, where they disproportionately use up the prison system’s limited health care dollars." "So that results in old and frail prisoners who have already served an extremely long time in prison that then become very expensive to care for as they reach their later years," Medlock said.

Meanwhile Marc Levin of the right-leaning Texas Public Policy Foundation suggested that Texas:

must prioritize its prison space to keep threats to society behind bars but should steer lower-level offenders, like individuals convicted of minor drug possession, out of jail.

"We have about 17,000 low-level drug possession offenders in our Texas prisons right now," Levin said.

"Not all of them would be eligible under this because it excludes those with prior significant felony convictions and so forth. But it certainly would save several hundred millions of dollars."

They're right that the Sunset process presents a great opportunity to pursue changes at TDCJ, the Board of Pardons and Parole, and also the State Commission on Judicial Conduct, all of which are up for review in 2012-13. During Sunset, agencies are vetted thoroughly once every 12 years by the Lege and Sunset Commission staff, and the Lege must pass a bill verifying the agency continues to serve a vital function. Sunset bills often include various reform measures, though just as frequently legislators tack on pork or other favors for special interests. The bills must pass or else, at least in theory, or the agencies cease to exist. Much of the Sunset action is already happening behind the scenes as staff prepare preliminary reports and ready for public hearings next year, so early input is generally more effective, though of course Sunset bills can and will be amended all the way down to the waning days of the Legislature.

How to Get Involved
If you're interested in reform at these agencies and want to participate in the Sunset process, you can do so by submitting written comments, lobbying Sunset Commission members (which is a very helpful approach), or showing up to speak at public hearings, which may be less effective if you don't show up with written testimony/materials and very specific recommendations. Go here to learn more about how to participate in the Sunset process. More people should. Here are the "self evaluations" from the criminal-justice related agencies currently up for Sunset review:

• Texas Department of Criminal Justice
• Texas Board of Pardons and Paroles
• Windham School District
• State Commission on Judicial Conduct

The self-evaluation report for the Correctional Managed Health Care Committee is not yet online.

It's not just organizations but also average folks can also get involved in the Sunset process, if they're willing and able to do a little brain and legwork. In this case it's not that hard: Read the self-evaluation of the agency that concerns you. Take notes as you go, thinking both about what's been said and what's been omitted. Identify problems you see at the agency - particularly any not identified in the self-evaluation - and (really important!) suggest proposed solutions. Write down your concerns, ideas or questions. Submit them to the Sunset Advisory Commission as comments.

If you're in Austin, or can make it for a visit, try to visit with Sunset staff in person about your concerns. (The Sunset liaison staffer for each agency is listed in the self-evaluation document.) It's also considered common courtesy at that point to share your concerns with the agency up for review (contact info is also in the self-evaluation report). Who knows, maybe they'll preemptively implement your idea, or maybe you'll be turned down but still get a chance to ask questions and gather more intel. Either way, at least at the hearing you can say you've spoken to them about it.

The next step, if one were pursuing the task the way a lobbyist would, would be to contact the offices of the various members of the Sunset Commission and share your comments/concerns/solutions, preferably in in-person visits. Unless you have personal connections with the legislator in question, you'll probably end up talking with a legislative staffer assigned to the topic (which is fine). Those meetings not only give you a chance to pitch your ideas but also to cultivate intelligence about what commission members are thinking about, what other special interests are asking for, etc..

So if you do your job right as a citizen lobbyist in the Sunset process, by the time the Sunset Commission holds a hearing to discuss the agency that concerns you, all of the Sunset staffers and commissioners (or at least their staff) will already be aware of the concerns you're raising. When that's the case, it's a lot easier to get your ideas seriously discussed than if you simply show up cold at the hearing for the first time. Some ideas brought forward that way end up in the Sunset recommendations, it's true, but one's chances are better if there's been a lot more prep and legwork done before-hand.

I'm excited to see the Sunset process unfold for each of these agencies, though I'm concerned (but hopeful) that advocacy groups are well-positioned to capitalize on the opportunity. We'll see.

See related, recent Grits posts:

• TDCJ, parole board publish self-evaluations for Sunset process
• Sunset process gives public chance for input at TDCJ
• Tidbits from the parole board's self-evaluation
• Holding Texas judges accountable for past misconduct
• Few cases against judges sustained by Judicial Conduct Commission

Few cases against judges sustained by Judicial Conduct Commission

Looking at the self-evaluation report (pdf) from the State Commission on Judicial Conduct, we discover that scarce few complaints against judges result in any sort of disciplinary action, including reprimands, warnings, or "private admonitions." Here's a chart Grits compiled from data on p. 19:


A total of 22 judges over this period resigned in lieu of disciplinary action by the commission, including 10 in FY 2010. (Analyzing details of those stories would make an interesting study of the dark underbelly of Texas jurisprudence!) Of the tiny number of cases resulting in disciplinary actions, a whopping 118 of the 260 sanctions (45.4%) against Texas elected judges over this period were kept private, with details never reported to the public.

In none of those years, though, did the commission take the extraordinary step of recommending the Supreme Court suspend a judge, as they did in William Adams' case.

Holding Texas judges accountable for past misconduct: William Adams and Ken Anderson

Quite a few readers contacted Grits a couple of weeks ago asking if I planned to comment on the Aransas County family law judge who was videotaped beating the living crap out of his then-16 year old daughter for illegally downloading music. She made the video in 2004 before releasing it in retaliation earlier this month when he threatened to cut her off financially (revenge, unlike grits, is best served cold). Grits refrained, mainly because the topic was being widely discussed by others more effectively than anything I could have said, and I had nothing in particular to add to what was mostly a family-law discussion. (Besides, 3+ million people had seen the YouTube clip before I did; it hardly needed my promotion.) The video was horrendous, nearly unwatchable, far exceeding any acceptable fatherly punishment to surpass the threshhold to "abuse." But the statute of limitations had run out, the daughter is now 23 and no longer lives with her father, and most attorneys who've looked at the question, including the local DA, agreed there's no way to turn it into a criminal matter.

Even so, I was fascinated to learn via CNN that the State Commission on Judicial Conduct is not only investigating the old abuse allegations but has convinced the judge to accept a paid suspension while it does so:

Judge William Adams, who made national headlines after the release of a 2004 video of him beating his then-teenage daughter, has been suspended by the Texas Supreme Court.

Adams, while not admitting guilt or wrongdoing, agreed to the suspension. He will be paid during the suspension.

The judge's lawyer, William Dudley, said his client proposed the suspension motion with input from the state Commission on Judicial Conduct, which is investigating the incident. Adams already was on voluntary leave, Dudley said in a statement to CNN.

See the order (pdf) and the commission's public statement (pdf) in Judge Adams' case, and the commission's rules (pdf) for disciplining or removing judges. What interests Grits in particular are possible parallels to Williamson County District Judge Ken Anderson, the prosecutor in the Michael Morton case who 25 years ago apparently hid exculpatory evidence from both the defense and the court to convict an innocent man, allowing the guilty one to remain living free in Bastrop County for the intervening decades. Just as the statute of limitations has run out on any possible offenses in the video from Adams' years-ago incident, the statute or limitations on any prosecutorial misconduct in the 25-year old Morton case have also likely expired. But if the Commission on Judicial Conduct can investigate Judge Adams over old abuse allegations, and even facilitate his suspension while they do so, why can't or won't they do the same for Judge Anderson in Williamson County?

I've been told privately that, even though the statute of limitations on Adams' conduct may have expired, there's an argument to be made that the commission could pursue him under its constitutional authority to discipline judges who engage in "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice." A family law judge who engaged in that kind of behavior in his own family life, the argument goes, willfully engaged in behavior that cast discredit on the judiciary.

Similarly, assuming withholding exculpatory evidence from the judge was a willful act (instead of an act of extreme, near-unfathomable incompetence), it's hard to argue that Judge Anderson's recently-revealed shortcomings aren't "inconsistent with the proper performance of his duties or casts public discredit upon the judiciary." If the Commission on Judicial Conduct found a hook to justify intervention on older charges in Adams' case, Judge Anderson's should be similarly fair game.

Ken Anderson hid evidence and misled the judge in perhaps the biggest trial of his prosecutorial career. His alleged misconduct was primarily responsible for a false conviction which ranks among the worst injustices in the state's history, threatening to elevate him to Mike-Nifong status in the pantheon of convict-at-any-cost prosecutors willing to cheat to win. He's an embarrassment to his county and his profession - yet he still sits on the bench in a Williamson County District Court, dispensing what passes for "justice" in that jurisdiction. Why? Anderson's past misdeeds weren't violent but they discredit any claim he might make to integrity or impartiality on the bench in much the way that Judge Adams' tumultuous family life discredits his family-law credentials.

Grits suspects Anderson himself has insufficient capacity for self-reflection or shame to himself contemplate stepping down; his failure to accept responsibility - apologizing for "the system" but insisting he himself was blameless - surely demonstrates that. But if the Commission can find a hook to go after Judge Adams regarding years-old charges, they should find a way to do the same thing in Williamson County. Much as with Judge Adams, every day Anderson remains on the bench taints and demeans not just the integrity of Texas' judiciary but the entire legal profession.

Opportunity for activism
Speaking of the Commission on Judicial Conduct, they're up for Sunset review along with TDCJ and the Board of Pardons and Paroles, and you can see their self-evaluation report here (pdf). (More soon analyzing that document.) Anyone frustrated with the impotence of judicial oversight in Texas should view the Sunset process as an excellent chance to suggest improvements to the process.

Final word: Court won't reconsider Keller decision

From AP. I think I can speak for everyone in saying I'm glad it's over. A likely less universal reaction is that I'm glad the three-judge panel at least fixed their error pinning Keller's legal fees on the taxpayers before denying the motion to reconsider.

At this point, opinions pro and con are more or less set in stone, and Keller's punishment, though not the findings criticizing her actions, has been finally overturned. In any event, a record was established, a conclusion reached by the commission, and blundering errors were witnessed throughout the process - from Richards' attorneys' missteps on the final day of his life to execution day procedures at the Court of Criminal Appeals to every stage of oversight afterward. But most importantly a rare, public debate occurred over the propriety of Keller's actions, casting more light on the court and its frequent dysfunction than it's seen in many a year.

Judge Michael Keasler's trouncing of Democrat Keith Hampton in last week's election casts doubt on whether Keller may be held accountable at the ballot box unless it's in a Republican primary, but of course, you never know. My great grandfather, Arch Sneed, worked as a cowboy on the XIT Ranch in the Texas Panhdndle from the time he was a as a teen in the 1890s until the historic ranch closed. As he was fond of saying when I was just a tot (a sentiment that's always stuck with me), there's never been a horse that can't be rode, never been a cowboy can't be throwed.