New Judges and Reversal Rates

It will be interesting to see the changes in the next few years. With eight courts being led by judges on a “learning curve,” watch their dockets increase. Watch the appellate courts reverse decisions, the tax dollars wasted and the criminals who are set free.

Last week I discussed the first part of this chicken-littling — that dockets will increase. Today, on to the bogeyman of increased reversals by appellate courts (of which apparently the writer thinks the next two problems are sequelae).

A reversal on appeal means that the court of appeals thinks that the trial court judge erred badly enough that the accused should get a do-over. A judge who knows and applies the law will be reversed, but only very rarely. All but one of the new judges have more experience as lawyers than the outgoing judges had when they became judges. Shawna Reagin, Kevin Fine, Hazel Jones, and Herb Ritchie all have extensive trial experience. Shawna and Kevin have appellate experience (I know this to be true for them; it may be true for others among the new judges as well). David Mendoza and Ruben Guerrero even have judicial experience.

Maria T. Jackson, the new judge of the 339th District Court, is the unknown in this particular equation. (The letter writer quoted in my last post on this topic was the campaign treasurer for the best judge in the courthouse,  whom Jackson will replace in January; this might color her view of the things to come in the other seven courts.) Jackson is a municipal court judge who graduated from law school in 1998 and was licensed to practice law in 2002. In 2003 she was appointed to be a traffic court judge. (She graduated from college in 1987, so I have high hopes that she has some of the real-world experience that helps a human being develop a mature sense of justice.)

Supposing that a judge is entirely ignorant about the law, the number of reversals might increase, but only a little.

First, in order for a judge to err, either one party has to lead the judge to do so or the judge has to do so on her own hook. If one party leads the judge to err, that party can’t generally complain about the error. So in order for a judge to commit reversible error, first of all, she has to do something wrong either at the State’s request or do so on her own with the State’s acquiescence.

Next, in order for error in a criminal case to be reversible, it almost always has to be preserved. That means it has to have been timely and specifically called to the attention of the trial court by defense counsel, and the trial judge has to have ruled on it (or the lawyer has to have objected to the judge’s failure to rule — one of the things that judges learn at judge school is to avoid ruling on objections if possible: “Move along, counsel”).

The preservation of error in the face of the court’s best efforts to conceal it is a crucial part of the trial lawyer’s science; too many trial lawyers neglect it. Having handled many appeals, I can testify to the frustration of the appellate lawyer at how much error is waived by trial lawyers who either aren’t thinking ahead to the possible appeal, or don’t know how to preserve error.

Even properly preserved error, however, rarely results in a reversal.

There are constitutional errors, and non-constitutional errors. Most constitutional errors are subject to harmless-error review, which means that the court of appeals must reverse the judgment unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Constitutional “trial errors” — all constitutional errors in the trial process — are subject to harmless error review. “Structural” errors that infect the entire trial process and defy harmless-error review, are few and far between; denial of counsel of choice (as in Gonzalez-Lopez) is one example.

So not only does reversal depend on preservation of error, but it also depends, in most cases of constitutional violations, on our Courts of Appeals, elected in the same partisan elections as the trial courts but in larger (redder) districts, not finding the error harmless. Suffice it to say that they are not predisposed to see how an accused could possibly be harmed by any but the most egregious of errors.

Non-constitutional errors (for example, bad evidentiary rulings where the trial lawyer cited the rule but not the constitutional provision) are subjected to an even stricter rule: unless the error affected the appellant’s substantial rights — that is, unless the appellate court concludes that the error may have had substantial influence on the outcome of the proceeding the court of appeals will disregard it.

Finally, even a reversal doesn’t result in a “criminal being set free”. Unless the reversal is for legally-insufficient evidence (that is, the State failed at trial to prove its case, in which case the appellant is, by definition, not guilty), it results in a new trial.

The takeaway from all of this is that the sky is not falling. Some of the new judges will be reversed less than the old judges; some will be reversed more. The difference isn’t going to be noticeable, in the grand scheme of things, either in tax dollars wasted or “criminals” set free.

That Sharolyn Wood Is Such a Joker.

From this morning’s Chronicle story (by Mary Flood and Brian Rogers) on the ouster of the Republican judges:

Civil District Judge Sharolyn Wood, who lost the seat she’s had since 1985, lamented that voters have lost “about 250 years of judicial experience” in this sweep. She said Harris County’s judiciary has been kept stable by an understanding that experienced judges weren’t challenged, but that unspoken agreement was tossed out this year.

An understanding? You understood that all you had to do to have life tenure was last a term or two? And this was by unspoken agreement?

Really?

Wasn’t it more that, until 2008, the Democrats so despaired of winning under the Harris County One-Party system that nobody could be stirred to run, even against the most dismal incompetents?

Alternate Titles I considered for this post:

1. Well, Why Didn’t You Just Say So Earlier?
2. This is Why I’m Leery of Talking to Brian Rogers.
3. She’s Learned a A Lot as a Judge — Before 1985 She Couldn’t Even Spell “Entitled”.

(This makes Sharolyn Wood the first sitting judge to win an Asshat Lawyer of the Day Award, by the way.)

An Historic Election

Sure, a Black man was elected president, but the big news in yesterday’s election comes from Harris County, Texas, which has a functioning 2-party political system for the first time since 1996. That year was the last in which a Democrat won a countywide race. Until last night.

In this year’s countywide races there were several Republican winners: County Judge Ed Emmett (the County Judge is the County’s chief executive; Emmett performed well during Hurricane Ike recently), District Attorney Pat Lykos (in a 4,000-vote squeaker), and County Tax Assessor Paul Bettencourt.

Democratic candidates took the County Attorney’s Office, the District Clerk’s Office, and the Sheriff’s Office.

In Harris County’s 17 civil district court races, Republican incumbents lost every bench but three (one of those three is too close to call until all the overseas ballots are counted). I hope that the Democratic civil judges will be a little less liberal in granting corporations’ motions for summary judgment — injured people need restorative justice, and the criminal justice system doesn’t need any more refugees from the plaintiffs’ bar.

In the races that matter most to the criminal defense lawyer, those for nine of Harris County’s 22 criminal district (felony) courts, there was (nearly) a Dallas-style sweep. In every race but one, the Democratic candidate won. The exception is the 351st Judicial District, in which Republican incumbent Mark Kent Ellis defeated Democratic challenger Mekisha Walker. (I would welcome any explanation why Judge Ellis beat Mekisha Walker while Caprice Cosper lost by a larger margin than Brian Rains).

You might remember that back in February I opined that, if we had to have a sweep, a Democratic sweep would be better than a Republican sweep. What the Harris County voters delivered was not perfect — Harris County has lost a couple of good judges, and picked up a couple of real question marks (to put it gently — I do have to practice before these people for the next four years) — but it was even better than a Democratic sweep.

Diana Moon Glampers for Vice President

Governor Palin’s relentless promotion of the idea that literally anybody can run this country got me thinking, but it was Senator McCain’s leveling plan to rescue the economy by spending my money bailing out those who weren’t savvy enough to avoid buying houses that they couldn’t afford (in some ways these Republicans are too liberal for me) that called to mind where we had read this story before (opens in new window).

All men and women are created equal before the law. But “all men are created equal” is not the literal truth. There are people who are smarter than other people; there are people who are better looking than other people; there are people who are stronger and quicker than other people. We all have our gifts — creativity, grace, musical ability, kindheartedness, whatever. The only way we can all be rendered equal is by suppressing everyone’s gifts.

Just as we say that all men are created equal, we tell our children that in America anyone can be president. But the only way Jo Sixpack can become president is by suppressing the gifts of every more talented candidate. So “anyone can be president” is not the literal truth. Nor should it be.

Be Afraid . . . But Not That Afraid

Last week John McCain found himself telling his scared supporters that they don’t have to be afraid of President Obama.

Might “make people afraid” not be such a great idea?

Who Are These People?

Thanks to a reader, I downloaded the Houston Bar Association’s 2008 Judicial Preference Poll, an incumbent lovefest. I’m guessing that among the 1300 attorneys who rated the criminal district court judges, half have never set foot in the criminal courthouse, except possibly as defendants because of a serious crack problem.

How is it that more people think that Brian Rains should keep his bench than that Roger Bridgwater should?

Ruben Guerrero over Bill Moore by 120 votes?

527 people who would like to retire Caprice Cosper?

How many rocks do you have to turn over to find 756 lawyers who think that Brian Rains should be judge for another four years?

The Houston Bar Association is a joke, and (at least as far as criminal benches are concerned; unlike the poll respondents I’m not going to opine on races that I know nothing about) its poll is a farce.

Dialing for Defense Dollars

I just got a telephone call at the office from someone asking me for a campaign contribution for the judge of a Harris County district (felony) court, before whom I occasionally practice and before whom I have a case right now.

This has never happened to me before. I don’t know if it’s happening now because the Republican incumbent judges are running scared in Harris County (they should be), or because I’ve never appeared on this particular mailing list before (I contributed to the campaign of another incumbent, who actually deserves to keep her bench).

I’ve never had any problems with this judge, though I’ve heard horror stories from other defense lawyers. But his Democratic opponent is a defense lawyer who is highly qualified for the position. So the only reason I would contribute to this incumbent’s campaign would be if I thought he would give me a little quid for my quo.

It never occurred to me that my clients would benefit from my contributing to this judge’s campaign, so I never even considered contributing. But this direct solicitation call raises the spectre of my clients in this particular court suffering because I did not pay up when asked.

Corruption takes many forms, and the Texas Canons of Judicial Ethics require judges to avoid the appearance of impropriety and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Directly soliciting lawyers who appear before you for contributions creates the appearance of impropriety. It damages public confidence in the integrity and impartiality of the judiciary.

Even if there will be no retaliation (and I hope there will be none, since there’s no way in Hell I’m going to contribute), it’s grossly inappropriate.