The Matlock Blog

My Docket is Bigger Than Your Docket

There are more than five months before the deadline to file as a candidate for a judicial office here in Texas in advance of the 2010 election, and yet some are already in campaign mode.  Given that judges in Texas are elected in the same manner as any politician, there is quite a bit of maneuvering in advance of these judicial races.

I like judges.  I do.  I know that I might say things about them that might make some wonder if I truly do, but by and large, I think we have a pretty good judiciary here in Tarrant County.  Whether misdemeanor or felony or appellate, I'm fond of most of them.  (I'm especially fond of appellate judges, if anyone is wondering in about six years; hint hint.)

But with all campaigning, there is something a candidate must do.  She must set herself apart from the other candidates.  However, judicial candidates are in a difficult position because they are largely unknown to the populace.  Most voters aren't involved in lawsuits, whether civil or criminal, so there is no real exposure.  Plus, most people don't think they will ever be in court, so they have no real incentive to learn about the candidates.  

So what is a candidate to do?  Simple.  Talk in terms of efficiency.  Everyone likes efficiency, but rarely more so than judges.  How do I know?  Just ask any judicial candidate how they feel about the size of the court's docket, and they will tell you it could be smaller.

The docket is simply the number of cases pending in a court.  In virtually every election year, candidates for the bench will routinely talk about their plans to reduce the size of the court's docket.

My only question is this.  Who cares?

I would venture to bet that if you asked any citizen in the county to guess the size of a given court's docket, they couldn't get within 500 cases of the actual number, maybe even 1000.  Why do I say this?  Because I am in courts virtually every day and I couldn't tell you.  Why should a random voter?  And just as importantly, why should they care?

Judges are best described as umpires; calling balls and strikes, but ultimately they shouldn't determine the outcome of the game.  Umpires don't decide how long the game lasts, or whether there is a doubleheader that day, or when to bring in the closer, or when to steal second, or, well you get the idea.  

For the lay people out there, judges neither file cases nor try them.  They don't settle cases.  They administer the cases within their court.  I'm not saying it's not a difficult job at times, but they essentially manage what has been given to them.  If no one sues anyone for a while, or the District Attorney's office doesn't file charges against anyone for a while, then there will be a decline in the number of cases in a given court.  If defense attorneys decided to plead all their cases instead of pushing for trial, there would be fewer cases in a given court.  

Candidates that claim to be able to reduce the size of their dockets are simply appealing to the general ignorance of the voting public.  Voters don't care how big a court's docket is.  Most of the time, even lawyers don't care how big a court's docket is.  

Lawyers know that a case might take six months to resolve itself in one court, and yet it could take up to two years in a different court.  We also know that a given judge is more likely to grant a suppression motion on an illegal search argument than another judge.  Which of those is more important?  

The point is nobody really cares how big your docket is, except I guess the judge themselves.  It's the proverbial ten-word-answer in debate.  It sounds really good, but then what?  Give me the next ten words.  You make your dockets smaller and then what?  Have you now reduced crime in the county?   No.  

It's simply a campaign slogan worthy of a perhaps a bumper sticker, campaign button or postcard.  But hardly worthy of someone who wants to be elected to the one type of political office that can literally destroy lives.

But what the hell do I know?

Client Control

I love this phrase.  It shows a complete lack of understanding of the justice system, as well as the attorney's role in it.  It makes me laugh.  It makes me cry.  Well, maybe not cry.

All too often I hear this phrase in the context of two situations.  The first is from another defense attorney who claims I should exhibit more client control because my client won't do "what's best for everyone."  Apparently, there are those attorneys who think that if a codefendant's choices cause problems for their client, that the attorney should reel them in, so to speak.  Retards.

We all know that the ultimate decision-making authority in a criminal case rests with the defendant.  The defendant pleads guilty or not guilty, not the defense attorney.  The defendant chooses to testify, not the defense attorney.  And the defendant chooses to cooperate, not the attorney.  This is really not a hard concept, and yet time and time again it is lost on some attorneys.  Sometimes, it's the salient details that are lost on people.

About twice a year in federal court, I will get a phone call from a defense attorney who represents a codefendant and wants to know when I'm going to control my client.  Generally, it's because my client has elected to go to trial, and by doing so, the other attorney thinks his or her client will ultimately be harmed by that choice.  They "urge" me to be a better attorney and control my client.  My response is generally that I am a better attorney because I let my client make his choice.  This generally doesn't go over well.

The other situation involves prosecutors, and it generally goes something like this.  The case rocks along through negotiations until it gets to the point of going to trial.  The prosecutor wants to know why my client doesn't want to take the deal that was offered.  When I explain that the client has decided he or she doesn't want to deal, I usually get a response of "That's a pretty good deal for him, you should really take it.  It won't get any better."

What is lost on the prosecutor is that I don't decide to accept or reject deals, rather my client does.  I don't know if it is that prosecutors don't want to have to try the case, think that I don't fully advise my clients, or just feel that they are so magnanimous about the case, but they lose sight of the fact that it's just not my call.

I explain everything I can about the consequences of accepting or rejecting a given deal with every one of my clients.  But at the end of the day, they make the choice, not me.  

I often get clients who will flat out ask me what they should do.  My response is always the same; "It's up to you.  You're the one that has to live with the consequences, not me."  It's pretty much a standard answer.  I tell them that I will do what they want me to do and tell the prosecutor what they want me to tell them (within reason of course), but that they have to live with the choice.  At the end of the case, I'm still going home to watch the Tigers play, drink a beer and play with my son.  

Now don't get me wrong.  Not all attorneys and prosecutors are like this.  And by no means am I complaining about the offers I receive on various cases. But it strikes me as odd that someone thinks I'm not doing my job because I don't strong-arm my client  into accepting a deal they don't want.  I think it's just the opposite, actually.

But what the hell do I know?

Catalano for Judge Campaign Fundraiser

Just a reminder that Robb Catalano's Campaign for Criminal District Court No. 3 has a fundraiser tonight at Daddy Jack's from 4:30 to 7:00.

Daddy Jack's is of course here. 

And people (read prosecutors) thought I only used this for evil.

Scooped?

There are really only about three things I can claim to do very well, and needless to say, investigative reporting is not one of them.  Of course, that doesn't mean I can't scoop the famed Fort Worth Star-Telegram.  

I recently reported posted about Robb Catalano running for Criminal District Court Number 3.  I posted this about 10 days after I knew about it.  The Star-Telegram reported it two days later.  After me.  Coincidently, I was in court the next week and heard about how the Star-Telegram called him up to interview him about his run.  Apparently, they were embarrassed that they had not known about it sooner.  They found out about it from "some legal blog."  Their words, not mine.

So I know the Star-Telegram has fallen on hard times lately.  With budget shortfalls and early retirements, there are many that fear Fort Worth's newspaper will go the way of the presumption of innocence.  (Get it?  That was a joke.)

I would like to think however that no matter how bad things get down at Amon Carter's newspaper, there would still be at least a modicum of journalistic integrity.  I mean is that too much to ask?

So with that said, can I at least get a cite?  I mean any sophomore journalism student knows to cite your sources, even if you developed a lot after the fact, right?  

With that said, I'm hoping to one day open up the Star-Telegram and see a story coming out of the Justice Center, and at the bottom there be a cite to "Some Legal Blog."  I'll take what I can get, I guess.

But what the hell do I know?

Boom Goes the Dynamite

It's always nice to see that no matter how bad your day in court was, it could be worse.

At least you didn't sound like this guy in front of the jury.

The Race for 3

It's official.  Well, as official as these things get, I suppose.  Judge Elizabeth Berry will not be running for reelection in 2010 for Criminal District Court 3.  That means we will have a new judge.  Who will it be?

I have it on very reliable information that Assistant Tarrant County District Attorney Robb Catalano will make a run for the bench.  Robb is an excellent prosecutor, and perhaps more importantly, a good person.  

My sources within the Tarrant County Republican Party have told me (although it was some time ago, but I was out of town) that Robb is the party's choice to take over the seat.  I'm not sure if Robb has announced yet, but if he hasn't and would like to here, I'm happy to oblige.  If he already has, well, better late than never?

We'll see if any legitimate contender puts their name in the hat for CDC3.  Short of an out-of-left-field candidate entering the race, I think it would be safe to say Robb will be the next judge of CDC3.  

Tarrant County on track for new felony district court

So it appears the criminal courts of Tarrant County are about to grow my one.  

Senate Bill 1553, which has passed the full Senate and now sits in House Committee, calls for the creation of five new district courts in Texas.  In addition to the Tarrant County court, it calls for the creation of a general district court for Denton County and a new criminal district court, juvenile district court, and civil district court in Bexar County.

The Tarrant County court would be named the 432nd District Court.  It's creation of course raises some questions.

The first is that the bill, as worded, goes into effect on September 1, 2009 if passed.  If that's the case, that means the governor would be in a position to appoint someone to the bench until the next election.  As a result, the question becomes who get's the spot?  

There are certainly a number of people that would like to be on the bench.  However, the new court may not be the only felony court in play next year.  I have it on pretty good authority that at least one incumbent will not run again, and that number might increase by as many as two before it's all said and done.   Once I've got more info, of course I'll be back to handicap the field for not only the new court, but the other open benches that might be up.

The other question is where will this court go?  I assume the Auxiliary Court would be replaced by the new court on the Sixth Floor of the newly renamed Tim Curry Justice Center.  After that however, there's not a lot of room left in the courthouse.  

This raises another issue.  When will Tarrant County start discussing a new courthouse?  With the population of Tarrant County expected to double in the next ten years, the current courthouse will be hard-pressed to keep up in its current setup.  

All that is known for sure right now, however, is that it looks like I'll have one more court to run back and forth from in the near future.

Is this bad?

I'm just thinking out loud here, (ok, typing, but whatever) but does the word "reprehensible" seem like a good campaign slogan?   

Every now and then, what happens in state court comes back up in federal court.  It almost never, ever, never, ever, never involves a federal judge reviewing the conduct of a state court judge.  Of course, until it does.  

Imagine this scenario.  A state court judge conducts his/ her business as usual, and mystifyingly sentences someone to, say 15 years in prison for failing to report on time to her probation officer.  Then, the defendant brings her 2254 claim into federal court alleging ineffective assistance of counsel.  With me so far?

During the hearing, not only does the appointed-for-life federal judge decide the defense attorney was indeed ineffective, but also has a few choice words for the state court judge.  One of those words, by the way, is "reprehensible." 

By itself, it's maybe a Lifetime movie.  Maybe.  More like a really bad WB tv show.  But now, let's add the back story.  

The federal judge is, as far as I am aware, the only district judge in the history of the Fifth Circuit to have ever been "sent to the showers", so to speak, by the Fifth Circuit itself for, um, not doing things the right way.  More interesting?  Maybe a straight-to-DVD release?

Now let's add this.  The state court judge?  Let's say he/ she resigned the bench to take a job in the D.A.'s office in preparation for his/ her run as the heir apparent to replace the long-serving D.A.  Now we're in at least Gigli land, right?

Let's add that the state judge is bypassed by the governor for the appointment to fill the vacant D.A.'s spot, and thus leaving the race wide open in what will surely be the hottest local election around.  

Would it be a disaster for the record of that 2254 hearing to be made public in which a federal judge describes the state court judge's conduct as "reprehensible" before the state court judge makes a run for the highest law enforcement position in the third most populated county in the State of Texas, and the 18th most populated in the country?  

I don't know.  Some might say it was reprehensible for it not to come out.  

But what the hell do I know?

I stand corrected, again

Just ask my wife, I screw things up.  Yesterday, I wrote about how the "Resign to run" provision of the Texas Constitution didn't prohibit a sitting District Judge from running for District Attorney unless the judge resigned the bench.  I was right.  At least about that.

Faithful commenter "et" whom I can only assume to be Edin Tally, remarked yesterday evening that while I was right about that provision, I had apparently forgotten about that pesky Code of Judicial Conduct.

Specifically, I should have re-read read Canon 5(3) which states:

"A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office."

So, I guess a District Judge, or any judge for that matter, has to resign the bench to run for an office like District Attorney.  

Who knew?  I guess I should have.  Now I do, and so do you.  (Is that a haiku?) 

Resign to run?

With the appointment of Joe Shannon to be the interim Tarrant County District Attorney, the question of who will ultimately be the next D.A. is the hottest question in the courthouse.  It's been reported that Shannon would accept the position with the understanding that he would not run in the 2010 election.  If that's true, then it could well be a free-for-all.

However, the Star-Telegram reports that the long list of candidates might well dwindle as a result of the governor's appointment.  The list of potential candidates for the Republican spot on the November 2010 ballot had been reported to include Criminal District Court No. 1 judge Sharen Wilson, 396th District Court judge George Gallagher, County Criminal Court No. 10 judge Phil Sorrells, as well former judge and current prosecutor Bob Gill.  Also considered interested is Kirk Claunch, a local Fort Worth attorney who unsuccessfully ran against Tim Curry in the 2006 primary.

The Star-Telegram reports the field could dwindle because judges Wilson, Gallagher, and Sorrells would have to resign their respective benches to run for the D.A. job.  But I don't think that's right.  Judge Sorrells would, but I don't believe judges Wilson or Gallagher would, and thus they could keep their sights on replacing Curry.

Article 16, Section 65 of the Texas Constitution is often referred to as the "Resign to run" provision.  It states that if a listed officeholder wants to run for another position when they still have at least a year left of their current term, they must resign their current position first.  The section is very specific about which offices it applies to, and it doesn't include District Judges.  As a result, a District Court judge, such as judges Wilson or Gallagher, would be permitted to remain on the bench while campaigning for the D.A. spot.  However, a County Criminal Court judge is in fact listed within the section, and as a result, Sorrells would have to resign his bench to be a candidate for District Attorney.

That would potentially create an exciting primary season.  Three very popular county, or in the case of Bob Gill former county officials.  All three are very well-liked within the Republican party.  

It's been reported that Gill is considered the frontrunner by many within the party.  But I understand that is really only representative of a small section of the Tarrant County Republican Party.  From those I've spoken to, there are significant sections of the party that favor either Wilson or Gallagher.  Few expect much party-wide support for Claunch.  

So with almost exactly 10 months remaining before the Republican primary in March of 2010, the race is already heating up.  

But what the hell do I know?