The Matlock Blog

Is it time?

Few things about judges capture the nation's attention the way a Supreme Court confirmation hearing does.  After all, most people have no exposure to judges or the courts except through a hearing such as Judge Sotomayor's confirmation hearing.  I think it's boring, but hey, if that's what floats your boat, the straw that stirs your drink, the, well, you know.

But as I sat watching some highlights the other day, I recalled a conversation I had with a fellow attorney friend of mine.

There are nineteen criminal courts in Tarrant County.  The county's population is roughly 1.7 million people.  Approximately 25 percent of the county's population is Hispanic.  If memory serves, I believe Judge Nekhom of CCC 4 is from Guatemala Argentina (thanks Lance),thus making her the only Hispanic judge in the county.  I could be wrong on that though. 

Of the county's population, roughly 14 percent is African American.  That corresponds with the two African American judges we have, Judge Salvant of CDC 2 and Judge Sturns of the 213th. 

Just going on the population percentages, there should be about three more Hispanic judges in the county.  Of course, there will be some that argue that to be a judge, you have to campaign, and except for J.R. Molina and his interminable campaign for the Court of Criminal Appeals in Austin, there aren't any Hispanic candidates.  I can't argue with that.

But there will soon be an opportunity to partially remedy this situation.  The Texas Legislature recently created a new felony district court for Tarrant County, the 432nd  District Court.  I know that the Governor's office is taking applications for filling that new bench.  Would the Governor appoint a Hispanic to the bench?

From a political standpoint, it would make sense.  He is, or at least will be, in a tight race for reelection against Senator Kay Bailey Hutchison.  Tarrant County is overwhelmingly Republican.  In fact it is the second-most Republican county per capita in the country.  It might help to sway some Hispanic Republicans and undecideds to his side if he were to appoint a Hispanic to the 432nd.  

Now obviously I'm not trying to tell the Governor how to do things.  If I was, he probably wouldn't be in the trouble of losing reelection.   But I digress.  

The bottom line here is that there is an opportunity to adjust the racial makeup of the Tarrant County criminal bench.  Interestingly, there isn't really much discussion on the subject.  So the question is, is it time?  If it's good enough for SCOTUS, why not here?

But what the hell do I know?

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?