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?

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?

Under Pressure

Under Pressure

“Pressure pushing down on me
Pressing down on you no man ask for
Under pressure - that tears a building down
Splits a family in two
Puts people on streets”

Queen with David Bowie.

Democratic candidate for Criminal District Court Number Two doesn’t like the way things are being handled by the sitting judge, Wayne Salvant. That’s good to know. At least she isn’t running to be judge just to be judge.

Ms. Tolbert, whom I’ve never met by the way, has a series of YouTube “interviews” available. They appear to be radio interviews which were visually recorded. The respective “topics” are “How Tolbert is different,” “All Judges Are Republican,” “Judge as a Referee,” and the video above, “How Cases are Tried.”

There is also a video of a pancake breakfast fundraising, but although I tried to watch it, I couldn’t finish it. It was so mind-numbingly boring I had to turn it off. It didn’t even have background music. I mean, come on! But back to “How Cases are Tried.”

First of all, I don’t think the title of the video has anything to do with the substance of the video. Ms. Tolbert doesn’t really discuss trying criminal cases in Criminal District Court Two, but rather seems dissatisfied in the manner in which Judge Salvant appoints attorneys to represent those charged with State Jail Felonies.

It appears Ms. Tolbert is uncomfortable with the idea of what is referred to as a “Jail Run.” It is generally more common in misdemeanor courts than felony courts, but it certainly happens. Essentially a jail run is when a number of incarcerated defendants who have yet to be able to post a bond and have no attorney to represent them are brought to court and appointed lawyers to represent them. No problem so far.

However, often what happens is that the appointed attorney is “expected” to resolve the case that day. In a misdemeanor case, this is generally accomplished by pleading the defendant to time served. I have personally experienced this, as I’m sure most criminal defense attorneys have.

The problem arises in felony court. Felonies, even State Jail Felonies, are serious offenses. While the person cannot be sent to TDC, they can be sent for up to two years to a Texas State Jail Facility. This time is day-for-day, meaning there is no credit for good time or any type of parole. So being confronted with a new State Jail Felony case can actually cause some problems because it is a lot for the defendant to understand in the extremely short amount of time he has spoken, in fact known, his newly-appointed lawyer.

Ms. Tolbert believes Judge Salvant has engaged in this type of behavior by appointing attorneys (Ms. Tolbert refers to them as “favorite lawyers”) and “exptecting” them to dispose of the case that day. This is, as Ms. Tolbert says, referred to as Same Day Disposition. And Ms. Tolbert is right, it shouldn’t be a practice to engage in this type of appointment process.

The problem here is this. The judge doesn’t negotiate the plea bargain in the case. The judge doesn’t meet with the defendant and ascertain what is best for the client. The judge doesn’t represent the defendant. The defense attorney does.

Of course, it can be very difficult for any attorney to stand up to a judge in that situation; actually, in many situations. But at the end of the day, that is our job. We can complain about. (God knows we do.) We can go on and on that the judge doesn’t understand what it is like to be a private defense attorney. (The majority of the time they don’t.) And if it bothers us enough, we can refuse to accept appointments so as to eliminate the possibility of it happening to us again. (That is an option because no one is required to represent court-appointed clients.) But it doesn’t change the fact that it is ultimately up to us.

If an attorney is appointed to a client and the judge expects that case to be resolved on the same day, there is only one question; what is in the client’s best interest. As it turns out, it is the same question for all clients, appointed or not, judge-involved or not, whether we like it or not. It’s our job.

Judges make our lives difficult. Water is wet. The sky is blue. No one said this job was easy. If a judge wants us to resolve a case the same day, all we can do is what is in the client’s best interest. If the client wants to take the state’s offer, then it’s resolved. If not, then so be it. To complain that judges put too much pressure on defense attorneys is missing the point.

If the client doesn’t want to plead guilty, for whatever reason, then you set your case for trial, and you make the state prove each and every element beyond a reasonable doubt to a jury. You fight and scratch and claw, and then do it some more. In short, you do your job.

I think my Google is broken

My apologies to Judge Salvant for stating that he had no website. It didn't take a reader long to point out that the judge does in fact have a website for his reelection to the bench of Criminal District Court Number 2.

The website is here.

I know I stated that when I Googled the judge, and Ms. Tolbert for that matter, that I found no website for them. The same is still true. Sort of. Sometimes it pops up, and sometimes it doesn't. Again, my aplogies.

You will find all the information you might need (I suppose) on his website.

And yes, before anyone points it out, that is a sharp bowtie.

Now Hiring: Judge Criminal District Court Number Two of Tarrant County

There is only one contested criminal court judicial race this year in Tarrant County. That race is for judge of Criminal District Court Number Two. Republican incumbent Judge Wayne Salvant faces Democratic challenger Maureen Tolbert.

First, why are Tarrant County’s judicial races predominantly set in off-year elections? If there is anyone that can explain this to me, I would love to hear. But that’s another story for another day.

If you are a regular, everyday person in Tarrant County, you might not even know that there is a judicial race this year. I travel an average of 45 miles a day commuting from my downtown office to my house. I see two signs regarding this race. Two. They are both Judge Salvant’s.

We are only 39 days from the election. Granted, there are probably more important issues to be decided by your ballot on November 4 than a local felony court race, but could someone campaign?

Some will argue that Judge Salvant needn’t campaign as much because, after all, he is the incumbent. I agree with that to an extent. But, how about this wrinkle? Judge Salvant is one of only two African American judges in all of Tarrant County. He is also a Republican.

From my understanding, there is genuine concern (although I think unnecessarily) that an ironic twist could occur; one of only two African American judges could lose his seat because of a groundswell of African American votes going for Senator Obama in the presidential election.

The concern that I have heard of is that African Americans will be voting straight-ticket and will potentially “take away” votes from Judge Salvant. I don’t see that happening. Even assuming every Democrat and African American in Tarrant County votes straight-ticket, and in turn for Ms. Tolbert, is it really enough? Based on the numbers I’ve seen, Republican out number Democrats in the county by almost two-to-one.

But again I ask, where is the campaign? It’s great that a candidate might speak to the local party meeting, but those people are going to vote anyway. What about the others?

If I had to guess, I would think the candidates are looking to simply ride the coattails of the presidential candidates. It’s worked before. Well, actually it usually works.

But wouldn’t you like to know where the candidates stand on the important issues of being a judge in Tarrant County? Yeah, me too. With that in mind, I went Googleing.

Neither candidate has a website that I could find. In fact, I didn’t see anything designed for support for Judge Salvant. Ms. Tolbert apparently has a sister with a MySpace page and four snippets of a radio interview on YouTube.

Ms. Tolbert discusses how she is different in this interview. (Short version is that she is a Democrat and that because every judge is Republican, there is corruption.) Here, she discusses how it is bad that all the judges are Republican. Here, Ms. Tolbert discusses how a judge should be disinterested in the outcome of a case and should be more like a referree. (Interesting that she even mentions Dallas County.) Finally, here Ms. Tolbert discusses attorneys being pressured to dispose of a case. (I found this to be so interesting that I might post about this one later.)

So, is there an important judicial race this year in Tarrant County? Yeah, there is. Maybe someone could tell the candidates.

The opponent

During the recent run-off election for the 213th District Court, there were several arguments for and against both candidates. There were those that said that because Lisa Callaghan was board certified she was the most qualified, whereas there were also those that thought because Judge Sturns had previous District Court and Court of Criminal Appeals experience that he was the most qualified. But I asked several people one simple question: on a day-to-day working in the courthouse, who would you want?

Actually, it's not quite that simple. There were several in the defense bar that adamantly did not want Callaghan as judge because they had dealt with her being a prosecutor and felt her to be unreasonable. With that thinking in mind, I asked other lawyers, both defense and prosecutors, this question: would you rather have someone you think of as an unreasonable opponent continue in their job, or would you rather they sat on the bench?

The premise behind this question was simple. I would contend that from a day-to-day, working an individual case basis, I would rather have someone that was my opponent (in my case, a prosecutor) elected as judge than remain my opponent. It makes the day-to-day work easier. My thinking was that the judge is only going to have a limited number of times to screw you over, whereas the opponent is more difficult to deal with everyday during the life of a case.

I explained this rationale to a number of fellow defense attorneys, and they weren't sure about it. For one thing, some contended that there are a number of ways a judge can screw you on a case. I agree. But for the most part, those can be grouped into two categories; 1.) the day-to-day management of the court (which screws everyone, not just you) and 2.) rulings at trial. From a cost-benefit analysis perspective, I'll take my chances.

Another thing that was brought up however was bonds. There are some, or several I guess, attorneys that make bonds for their clients. It was brought up that an unreasonable judge, rather than unreasonable prosecutor, could make getting bonds set for clients difficult. I agreed, although I don't do that so it doesn't really affect my thinking.

The surprising aspect of this was the fact that several prosecutors agreed with my premise. They agreed that if there was a particularly unreasonable defense attorney that they had to deal with on a daily basis, they would rather the opponent was elected to the bench than remain a defense attorney. Interesting, I thought.

So I guess the next time we think about who we want to be judge, we should really ask ourselves, who do
hate dealing with on a daily basis?

Super Tuesday for some

So I ran across this story from San Antonio about voters in Texas. And Super Tuesday. It appears the Bexar County Elections Department was inundated today with more than 1,000 phone calls from people wanting to know where to vote today, Super Tuesday.

For those that don't know, and I'm not sure how you couldn't, today is the day in which 24 states are holding primaries or caucuses. Hence the name, Super Tuesday. Texas is not one of them. Texas holds its primary on March 4. Early voting begins February 19.

Somehow, these people learned just enough to know there was an election today, but 1.) did not learn enough about the election to know it wasn't in Texas, and 2.) waited until the last moment to consider doing anything about it. Where is Alexander Hamilton when you need him?

By the way, these people make up our juries.