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.

In for a penny, in for a state jail felony

The Fort Worth Star-Telegram has a pair of stories from the Texas District and County Attorney Association's legislative briefings, which have been going on the past few weeks. This story critiques a change in the statute on scrap metal theft that makes it a state jail felony literally to steal one penny, or any other item with the tiniest iota of copper (or other designated metals) in it."In their zeal to get after some of these scrap-metal scavengers, they really swung the pendulum pretty far to the other side,"said TDCAA lobbyist Shannon Edmonds. A staffer for the author of the bill, state Sen. Royce West, said they would "rely on the reasonable discretion of the prosecutors," but the scrap-metal statute was already ineffective and over-the-top. Now it's just absurd.

Another article focuses on new legislation the prosecutors' association thinks is unworkable. The story opens:

Texas prosecutors may not enforce new laws passed by the Legislature this year dealing with human trafficking, sexting and domestic abuse because of problems with how they were written.

The Texas District & County Attorney Association, an Austin group that trains prosecutors, has started warning members that some new laws have loopholes or mistakes that may make them unworkable from a prosecutorial standpoint. Shannon Edmonds, the group's legislative guru, is widely viewed as an influential analyst in the state's legal community.

In particular, bills expanding protective orders to include sex trafficking victims and pets are likely unenforceable, and a statute creating a new crime for "sexting" will lead to absurd results. On the sexting statute:

Edmonds is advising them to largely ignore the law because of problems including vague descriptions and conflicting rules.

"It's a bill written by people who don't understand the criminal-justice system," Edmonds said. "Prosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law."

Among the problems with the sexting law, Edmonds said, is that it creates a Catch-22 for adults who come across any explicit photos that were involved in an incident. The law tries to block such adults from being charged with possessing child pornography if they are holding on to the material to aid in an investigation, but Edmonds said it wasn't written properly.

"You could either destroy the evidence and be prosecuted for destruction of evidence or you could not destroy it and arguably be prosecuted for child pornography," Edmonds said, though he added that it's unlikely that a prosecutor would apply pornography charges in such a situation.

The law's lead author, Sen. Kirk Watson, D-Austin, said in a statement that he and other lawmakers worked with local prosecutors to "ensure this solution was sensible, appropriate and, most of all, workable."

That the group didn't bring up their concern earlier is "surprising and disappointing," Watson said.

The sexting bill was always a solution looking for a problem. Supposedly it was passed so teens involved in sexting wouldn't  be charged with child pornography. But when I attended the TDCAA briefing in Austin last month, Edmonds asked the roomful of prosecutors how many had filed child porn charges in sexting cases, and none raised their hands. Edmonds said TDCAA has never heard of such a case.

As reported previously on Grits, Edmonds counted 53 new crimes created by the Legislature this session, not including penalty increases on existing laws. Few if any of those new criminal laws were actually needed, in this author's view, except for a handful aimed at fixing legislative screwups from prior sessions like the ones Shannon described on protective orders, sexting, etc.. At this point the legislature expands the scope of criminal law every session more out of habit than necessity.

You can't make this stuff up: The increasingly thin line between fact and fiction

Here are a few items I don't have time to focus on in detail but which merit Grits readers' attention:

'Reasonable suspicion' includes acts that are 'not overtly criminal' but merely 'bizarre'
The Texas Court of Criminal Appeals has (once again) lowered the standard for reasonable suspicion, Paul Kennedy informs us. Now the term includes behavior that is "not overtly criminal in any way," but which might be categorized as "bizarre."

You show me yours and I'll show you mine
A new (but lesser) crime proposed by state Sen. Kirk Watson against youth sexting would also punish parents. But at least it might keep teenage girls from being prosecuted for child porn for sending naked pictures of themselves to their boyfriends.

Limiting school ticketing
The Texas Tribune has a story on three bills by Rep. Armando Walle that would regulate ticketing of students in schools.

'False economies,' law enforcement and mental health spending
Harris County law enforcement showed up at a recent Senate Finance hearing on health and human services to warn that cuts to mental health spending could devastate county jails and the criminal justice system, reported Patricia Kilday Hart at BurkaBlog.

New federal judge in Laredo
The US Senate finally confirmed Texas' first new federal judge appointed under the Obama Administration - Diana Saldana, a magistrate who was confirmed as a federal judge in Laredo. No word whether Texas will ever get any US Attorneys confirmed, thanks to knee-jerk obstructionism by Sen. John Cornyn. Notably, in his State of the Judiciary speech this year, Chief Justice John Roberts urged President Obama and the Senate to solve "the persistent problem of judicial vacancies," so perhaps filling these slots (particularly in Texas' Southern District which is swamped with backlogged immigration cases) will jump up the Senate's priority list this year.

John Grisham mining Texas judicial scandals for fiction
In his latest book, The Confession, author John Grisham mines a couple of well-known Texas judicial scandals for material, including Sharon Keller's "We close at 5" imbroglio. Another reviewer mentioned that, in the story, "The judge was sleeping with the district attorney and the appeals court didn’t even care!" This of course brings to mind the Collin County case where the Court of Criminal Appeals refused to rebuke a judge and District Attorney who engaged in an affair before and possibly during a capital murder trial, then concealed the relationship for years from the defense. I've said before about both these cases, "you can't make this stuff up," which may explain why a fiction writer might look to daily news reports instead of his own imagination for examples of such outrageous, fantastical misconduct.