Posted on
September 5, 2012 in
Just the facts:
On the 29th of August I got in the mail the State’s Motion to Disclose Experts in a case set for trial next Tuesday.
The same day the District Clerk’s office notified me that the judge had granted the State’s motion.
Here’s a portion of Texas Disciplinary Rule of Professional Conduct 3.05:
A lawyer shall not…except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter.
Here’s Texas Code of Judicial Conduct Canon 3(B)(8):
A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.
Here’s the email I sent the judge (and her lawyer, the judges’ staff attorney—in hindsight was probably a little much) on the 29th:
Dear Judge [],
Please stop granting the State’s motions (for example, to disclose experts) without notice to the defense and an opportunity to respond.
It’s improper.
Thank you,
Mark Bennett
Here’s the message my receptionist took on the 30th:
[Court Coordinator] re [client] Mtns Hrg Monday 9am. Your client DOES have to appear in court also.
My client was not due in court until the following week. Monday would have been Labor Day.
On the 31st I saw on the District Clerk’s website that the case was set on the day after Labor Day.
My client and I were there at 9am on that day. I asked to approach; the judge had other business to take care of first:
Me: I don’t think we have any business. There are no motions pending.
Judge: We have some business.
When the judge got to us, I asked that a record be made. Here is the judge’s defense:
By way of history on the case, the State filed a State’s Motion to Disclose Experts on August 29th, 2012. It was presented to the Court. At that time the Court held it for 24 hours to discuss with [Prosecutor] whether or not there were any objections from the defense. [Prosecutor] went out of town, so the Court asked another prosecutor in the court whether or not the defense had been made aware of the motion, and implicit in that request was whether or not there were any objections.
It was represented to the Court that the defense had been notified. The Court interpreted that to mean that there were no objections, just as if the State filed a motion to amend and the defense wasn’t present. The Court would have requested whether or not there were any objections from the defense. So, after that communication with the State and it being the Court’s belief that not only had the defense been given notice but there were no objections to a Motion to Disclose Experts under 39.14(b), the Court signed the motion on August 29th, 2012.
What do you think?
The effort to cover her ass was, to be kind, inartful. The salient question isn’t whether you were notifed, but whether you were give sufficient notice to be heard before a decision was made. And while it’s fine to blame the prosecution for deceiving the court, I assume they include an affidavit of service along with their moving papers. If they show that your papers were mailed the same day the court’s were hand-delivered and decided, then the judge must have a particularly fat ass as her CYA fails to cover it.
Either way, her refusal to allow you to make a responsive record (as would be required to preserve error) is the second opportunity to be heard you were denied. Not a good showing at all.
The certificate of service, I think, says that the motion was mailed on the 27th.
Shutting down the making of a record is poor form.
I had the same thing happen to me on a case recently but I didn’t complain because in my situation, I had filed the same motion for expert notice and it was signed when I was not in court. I assumed that both motions had just been presented to the judge after being filed. That said, had it been anything else, I would have complained. What do you think about the situation if it occurred as I presumed?
Perhaps I’m not complaining enough? If I don’t complain about things like this that do not hurt me (my client), then things that could hurt me are more likely to happen? I know many who would accept that.
Yes, I think we have to complain every time a judge does something ex parte, even when they don’t hurt the client (assuming that complaining won’t hurt the client).
The idea of having ex parte communications with a lawyer or signing an order before both sides could be heard should be anathema to a judge. Once it becomes acceptable, we lose: the state is in a much better position to exploit it.
Sounds to me like the actions of a prosecutor. One with a black robe, but a prosecutor nonetheless…
What boggles my mind is that she had almost a week to think out this explanation.
I am a layman, but that’s just wrong. The judge wrote a CYA response that could only be slightly remedied by reaming the prosecutor in open court and “unsigning” the motion. My freaking tax dollars at work. (face palm)
And, if I read the judge’s statement right and there’s no typo in it, the judge claims to have gotten the motion on the 29th, held it for 24 hours, and signed it on the 29th. Assuming the getting and signing (or either one of them) occurred no more than a couple of hours beyond a standard courtroom day, the judge’s CYA is demonstrably a lie.
There is no typo, and it’s certainly untrue. But she may have misspoken when she said she got the motion on the 29th.
Mr. B., I’m simply just another fellow human. Regarding Judges and ADAs teaming up – this was the norm for those of the so-called “Holmes Stable”. Sadly, some of the old farts went on to train (infect) newbees and so on……
The only difference between then & now is that ‘You’ are speaking up about it as it happens vs. waiting a decade to troll blogs / blawgs and put the Judge up on a pedestal in efforts to distance yourself from judicial corruption.
For that is what makes ‘you’ The Man. You sure as hell didn’t get every ones respect just for being an attorney / lawyer, you earned it. *Forgive my Texanees – you don’t piss in the wind and you don’t fuck with Mr. B. Thanks.
The difference between then and now is not just me. It’s the criminal-defense bar generally, which, thanks to the leadership of Robb Fickman and others, is better organized and more willing collectively to speak up against bad judges. (Maybe not willing enough, but more willing.)
Just as I thought, giving & spreading credit where it’s due. In addition to Mr. SHG., I was hoping to see Mr. Fickman chime in as for he too has displayed the awesome trait of not being afraid of no damn ghost in a black sheet either.
One method of doing something about it vs. simply blogging about it and moving on, is to consider Law Schools & Firms holding class (5 days a week) in the Court Houses, City & County Jails (with once a month field trips to local prisons to interview wrongful conviction claimants, and Qs. & As. with judges at day’s end). There is no way in hell the blatant judicial corruption could exist at today’s levels if the entire process is monitored from the very moment charges are filed (by students, their professors, mentors & Alumni). *The plea bargain (TapOut) rates will plummet if & when pre-trial motions are taken seriously and Live Show-Ups are scrutinized in real time.
Drop kicking the judicial reform ball enticed this judge and countless others to go rogue. Doing nothing is not an option for real CDLs. Thanks.
So, how many ex parte communications w/ the State were there? Three? I know many Judges feel there’s a “housekeeping exception” to the rule against ex parte communications, and they only – if at all – apply the rule to what THEY consider “substantive” matters. For me, Judges “coordinating” their hearing and trial dockets w/ the prosecutor is maddening. I have only rarely seen a State’s Motion for Continuance when my trial setting is put off and, recently, had to gently insist that a reset be marked “State’s Request” when the ADA didn’t have O/R. (Third setting, BTW.)
My point isn’t that there may necessarily be “harm” to my client, but there dang sure is the “appearance of impropriety” when judges operate this way.
So, Brad, what do we do about it? If we complain to the judge privately she punishes our clients by dragging them to court unnecessarily. Naming and shaming doesn’t work unless the judge is able to recognize what she’s done wrong. The Commission on Judicial Conduct won’t do anything, but a grievance might annoy its target.
Mr. Bennett:
I don’t know the best answer. Your approach likely (hopefully?) “fixed” the problem for you and your clients, as I would imagine that the Judge in question would be more circumspect next time. If, that is, one assumes she understood and internalized the “lesson.” (Perhaps, though, as is intimated if not expressed in your post, she still sees nothing wrong with her behavior.)
So, we’re left with the ad hoc remedy of everyone filing motions and/or complaining about ex parte communications. Doable, but, efficient? Or, even effective?
I’m sure I’m mistaken or guilty of a faulty memory, but I’ve never heard of a “Bench-Bar Conference” sponsored by HCCLA. Would our judges even attend? Could we air this type of peeve, along with others? Could we bring speakers in who would support our position? (i.e., “ethics experts”)
Perhaps an HCCLA presentation on “Crap You Need to Know About at the Criminal Justice Center,” with ideas on how to combat it. I’m still most perturbed by the DA’s seeming control of the docket, and the manner in which an ADA can get away with not observing the “niceties” of the rules of procedure regarding notice and pleading.
I don’t have a good answer, as I said. Speaking up, and not backing down, seems to be the best first step.
A lawyer in our office was in a trial (not in this judge’s court) where the state had filed a motion for notice of defense experts. The motion was filed along with the state’s notice of experts. The order on the motion was not signed. Lawyer did not disclose expert pre-trial. Visiting judge at trial, defense expert tendered and state objects on lack of notice. Prosecutor states on the record that state’s pre-trial motions are granted as a matter of due course in that court and that sitting judge must have forgotten to sign. Said it with a straight face and sincere feelings of entitlement. Amazing. Visiting judge didn’t miss a beat and overruled the objection.
Entitlement. Exactly. The prosecutors think they’re entitled to ex parte the judges, and the judges (having come up in the DA’s Office) agree.
This wouldn’t be Judge Ruben G. again, would it?
If it were, I’d have named him. This is a judge whom I’m still trying to give some benefit of the doubt.
One of my favorites of all time: I once had an initial appearance in a felony case –in parts not to be identified on the WWW— I arrived early for court and was visiting with the court coordinator when I realized that the judge and his prosecutor were sitting in the judge’s office discussing what plea deals the judge thought appropriate in the various cases on that day’s docket. A few minutes later, I was summoned into the Star Chamber and informed by the prosecutor (the judge had stepped out) what the minimum acceptable sentence would be in order for His Honor to accept a plea deal. I was in such a state of disembodied disbelief I could only mutter half-answers. Apparently this has been the procedure for quite some time. Another odd one I encountered once was in a murder trial–just after the jury got the case on G/I, the judge comes into the little lawyer’s lounge, sits down and proudly informs us and the prosecutors that he believed that he had worked out an acceptable plea deal for all parties –he had personally called the victim’s family the night before and talked with them and they would accept a sentence of ____ years. Again–caught quite off guard by unexpected ‘judicial plea bargaining’–especially in a particularly violent murder case. Also highly improper according to the Code of Judicial Conduct and the relevant opinions of the Court of Criminal Appeals–not to mention it violates the constitutional right to due process. I think too many years wearing “The Robe” robs some members of the judiciary of essential cognitive function and replaces it with delusions of grandeur and narcissism. Just an observation…
A motion to set for hearing plus a bar complaint seems like one solution.
Mr. B., so far, we’ve learned that: this and other crapola is still quite prevalent in today’s courts (possibly a nationwide thang) & not an isolated incident, a few degreed subscribers appeared to have offered up their observations & solutions while some admit to knowing it was wrong but played along anyway. (Similar to jurors voting just to be voting syndrome).
With that, I’m forced to: *congratulate & honor those that didn’t and don’t, *call bullshit on the participants & wonder why someone would spend a good portion of their lives obtaining a very expensive education totally geared in LAW only to become a dues paying member of state sanctioned organized crime.
*When a human ‘earns’ a degree and the subsequent license to practice in a closed profession that boldly creates, takes & displays: *mottos’, *oaths’, codes of ethics and rules… – in order to insure the profession as a whole conducts itself and business properly so that the consumers’ & by-products’ are properly represented and learns that he / she is either a willing participant or patsy / pawn in a crime, the human is simply guilty of association and yet, has options. Failing to do the right thing for the right reasons is a criminal act and a running joke. **Those wishing to distance themselves can do so today by calling for a yearly 12 Day Strike (once a month occupy the greens & clubhouses in mass), or by creating & signing a public petition promising to refuse to participate in any court that goes rogue, or show up early and assist the ADAs & Judges with the motions & dockets. Thanks.
All I can say is “Wow”. Your client had to be dragged into court because the judge engaged in blatant unethical, no, make that illegal conduct. Maybe it’s time to seek out a remedy/complaint in federal court. While you may not get far in the district court, you never know what the 5th circuit might do.
“Fr. Peter Papps, ex AUSA” is like the really promising first draft of a six-word story. Say more.
What can I say? 25+ years as AUSA (including 3 one year stints as US Attorney because neither party could get its act together) along with 16 years as a priest. Greek Orthodox that is. Married with kids. Now I do the priestly work and also read all sorts of legal blogs and take the opportunity to say exactly what I think about anything and everything. Guess what-it’s fun.
Surprised the judge acted in this way. I haven’t experienced anything of this sort in a long time. Glad to have judges recently who have acted properly. However, we are in the law business and it is a business…so there are times like these.
What an insipid comment. Are you for real, or an offshore spammer?
Insipid is right. It makes me think of a guy (this is about 30 years ago) who had been a judge in the NYC criminal court. He was sooooo bad at it, he did not get re-appointed by the mayor. You know a political hack must be exceptionally lousy when he can’t get re-appointed by another hack. It was always a joy to be in court opposite this former judge, who never had a clue what the law was and had not taken advantage of the free time he was given to skim the law, and, first, to ream him out, and second, watch the presiding judge forced to agree. Even the legal aid guys (public defenders) would stop and watch the entertainment. Mayb e this will happen to the clown you are currently battling.
Mark,
from reading your blog for some time, it seems like you have practiced pro hac vice enough in other jurisdictions (i.e. ones other than texas) to be able to realize that this kind of bush league shit is unique to the lone star state. I am correct in this regard, aren’t I? I used to practice in texas and found it utterly unsatisfying for reasons just like this. This kind of shit does not happen in other states. Where I currently practice, EVERY criminal proceeding is on the record as a matter of course. From misdemeanor arraignments to felony pleas (nifty concept, eh?)
I haven’t practiced PHV in state court. I did not know that this sort of conduct is unique to Texas. I am saddened.