Posted on
May 19, 2009 in
The judge in this case had told me the other day that he generally doesn’t read orders before signing them; he relies on his clerks to vet the papers and signs whatever they put before him.
Judges perform powerful word magic; words on the paper make something happen in the physical world. Clerks may be as competent as judges to decide what should be ordered, but it’s not their job. When a judge lets the clerk (or a litigant) decide what should be ordered, he’s in dereliction of his responsibilities, and likely to screw up someone’s life unnecessarily.
I asked another Harris County criminal court judge whether he reads orders before signing them. He responded that he generally did, but then he told me about once signing an order for a mental health evaluation when his clerk put it on his desk. The subject of the ordered mental health evaluation? The judge himself.
All very droll, until you consider that, while the judge can, with the stroke of a pen, undo the order affecting him, anyone else who is the victim of an improper or mistaken order has to spend time and money straightening things out, if things can ever be straightened out—much judicial word magic, once performed, can never be undone.
For a short while I represented a lawyer who was charged by the State Bar with fraud because he somehow “duped” a judge into signing an order that his client could have custody of a child – and she went to Florida & took the child, got charged with kidnapping – showed the order & all heck broke lose.
The trial judge (who has also been an appellate judge & sat on felony district court benches), testified at his depo that he rules, and then relies on the lawyers to write up the orders as he ruled, and that he does not have time to read all the orders because he signs (unknown #) of documents a day. I determined that was the way of the family courts – and the only way there was some kind of balance and check was if there was a lawyer on the other side. Dang sure didn’t want to be pro se there! (Ultimately lawyer was disbarred; nothing happened to the judge. One of those Big Civil Firms who faxes tons of crap paper represented the Bar in the prosecution.)
2nd situation – a well known, long time sitting judge here signed my proposed findings of facts & conclusions of law, then the State threw a fit & he withdrew them saying that they were signed by mistake – he did not intend to sign them.
He eventually made signed off on the State’s findings which were bunk. I truly believe that my findings were correct & that his original thoughts were correct – guess I’m not as aggressive as the prosecutor when I throw a fit.
Anyway, kid is doing life on a murder which had a decent alibi which was not presented. P.S. I was not told that the lawyers – yep 2 – had any ethical hesitations in putting on the defense. They did not like the braids in one of the witness’ hair – for real – and that was a big part of why they didn’t use the defense. Witness’ mother had braided his hair as a young child & he kept it up because she had since DIED. (Kind of a good explanation for the jury.)
If I were in your shoes, I would be filling out a complaint to whatever board or commission etc it is that holds Texas’s judges accountable for their performance.
(I know they’re elected but there must be some oversight, aside from the voters who vote for whichever judicial candidate has the most billboards or catchiest name?)
I don’t make the suggestion (to report judicial conduct) lightly. But there is a line, and not reading orders (essentially delegating all authority to his clerks, or to no one, if the clerks choose not to act as judges) is far, far over the line.
But How exactly can a judge be allowed to do such a thing? Even at the mention of such a practice, couldn’t that open doors to the defense to file for error?
So get friendly with a different judge’s clerk and get stuff signed against your judge and make sure it gets handed over to the police or whoever deals with it. With enough cut-outs it will never come back to you and hopefully it will make a big enough stink that the judges have to clean up their act for at least a month or so.
As I’ve noted before, some things that prosecutors do as a matter of routine would get defense lawyers indicted. At least until I’m the one with the keys to the grand jury room, I’m not messing around with filing false governmental documents.
Well, at least I know that it’s not only the judges where I practice that sign whatever is pushed in front of them. The situation you describe is interesting; I’ve filed for Rule 11 sanctions against attorneys who prepare Orders under direction, and simply change the outcome of the hearing in the drafting, but the problem is, for the judge to award sanctions, he has to admit that he was too dumb or lazy or incompetent to catch the change in the proposed Order.
And lest you wonder why I didn’t object to the proposed Order before it was signed, well obviously if they are too busy to read the actual Order, they’re going to be too busy to read the accompanying letter that shows the Order came in THAT DAY.