Sunday, December 29, 2013

Not a Flaw, a Feature

The rules are fairly clear and go a long way toward explaining why voters haven't a clue what they're doing.

Folks who seek election to judicial offices can talk about their wonderful families.  They can talk about their union and chamber of commerce endorsements.  They can say how you know they're tied to the community because they grew up there and went to such and such high school and college and then law school there.  They can talk about jobs they held from paperboy to law firm.  They can promise to work hard.  What they can't do is talk about what they actually intend to do as part of their judgeship. They can't talk about the law or how to interpret it or apply it.  

And yet.

Years ago I was at a meet the candidates event.

Everyone running for city or county office was invited to come and make a five minute campaign speech.  The fringe candidates were welcome.  The folks running unopposed were welcome.  Didn't matter, anyone who was going to be on the ballot could come and blather at whoever bothered to show up as an audience. (I don't recall if they invited the official write-in candidates, and it doesn't matter - actually almost none of this matters, it's just part of my usual digressive introduction before getting around to what I want to talk about.)

One of the speakers, a trial-court judge who was running for re-election, probably unopposed as was the norm in elections for those judgeships but it was a long time ago and maybe he had an opponent (more of what doesn't matter), had been a prosecutor for some time before going on the bench.  That's not uncommon.  At one time, and maybe still today but I haven't been there in a while to see, a wall in the reception area in the local prosecutor's office is covered with photos of judges who were once employed in the office.  There are a lot, a whole lot, of those pictures.

And so the judge got up for his five minutes, introduced himself, and offered his bio.
For the last 20 years, I've been in law enforcement.
There are a few things to say about that.  First, it's improper and dishonest.  The guy was "in law enforcement" when he was a prosecutor.  Once he got on the bench, he was not.  Oh, he enforced laws in the sense that he applied them and sent people to prison for violating them, but law enforcement is part of the executive branch of our government, not the judicial branch.  He knew it.  In theory, he could have been sanctioned for it.

Of course, he was actually speaking in code.  He intended to be, and probably was, understood by most voters as saying something quite specific but technically improper.
I'm no pansy when it comes to dishing out sentences. I will always give the toughest sentence the law allows.  Lock the bad guys up for a long time.  A really long time. Gleefully.
As it happens, there were and are tougher judges when it comes to sentencing (and easier ones, too). The only ones who knew that, though, were the lawyers who practiced in front of him and the courthouse reporters.  The public, insofar as it learned anything, learned that he was a hardass.

What the public missed (or at least what they were intended to miss), was the larger truth about his judging.  He really was still in law enforcement.  He no longer had his own desk in the prosecutor's office, and now he wore a robe to work and got called "Your Honor," but he was still a prosecutor.

Most of the day to day decisions judges make aren't difficult.  The law is clear or the request is unexceptional or everyone agrees.  Maybe there's an objection, but the ruling on it is likely self-evident. Even on things like motions to suppress or for summary judgment where the ruling may determine the outcome of the case, there's generally nothing hard.  Once you clear through the clutter of argument there's really no question about how it should be decided.  Isn't even close, and unless the judge is truly a rogue or taking bribes (no that never happens in Ohio; our judges are universally noble; I understand and obey the Mark Gardner Rule), the outcome won't depend on the judge (and probably not the lawyers, though that's both less certain and a different post).

But there are the close ones.  Those are the cases where it does matter, where the judge actually has to make a real decision.  Do I believe the cop or the defendant?  Hell, do I believe the cop at all?  Do I interpret the constitution or the statutes or the case law to constrain the government or give it whatever room it wants?  Is the NSA acting like a rogue agency invading everyone's privacy and engaging in witch hunts or is it properly balancing the interests of safety and security?  Just how much scoping and groping is to be allowed?  And how deferential will the judge be?  Within, that is, the bounds of remaining technically neutral.

That judge I spoke of?  Still a prosecutor, though wearing the robe.  Lots and lots of deference.  But pretty generally within the bounds of what's technically proper.

Ex-Judge Elizabeth E. Coker
There are, though, those who overstep. (See, for just a few examples, here and here and here.)  And so I want to talk about Judge Elizabeth Coker of the 258th District Court, Polk County, Texas.  (That's her on the right.

If you read Paul Kennedy's The Defense Rests (and you should), you already know the story since he's reported it in a trio of posts.  Here's the short version via a Boxing Day editorial in the Houston Chronicle.
Judge Elizabeth Coker voluntarily resigned earlier this month after admitting that she sent as many as 40 text messages from the bench to prosecutors [during trial].
She also confessed to tampering with witnesses and slipping into a jury room to tell those deliberating how to vote.
Coker, who served 14 years on the 258th state District Court bench in East Texas, is disqualified from sitting or serving as a judge in Texas and cannot even officiate at weddings.
OK, so she violated her oath, is guilty of something at least akin to criminally tampering with witnesses and juries (even if she didn't technically violate the law - I don't know enough details, and I'm not bothering to do the research on the law, to answer that), and worked to fuck over I don't know how many possibly innocent people along the way.  And yeah, she stepped down "voluntarily" as they say rather than be forcibly removed from office, but as Kennedy pointed out
Ms. Coker took a leave of absence from the bench in late October and her resignation became effective this past Friday. It's interesting that she had no compunction about continuing to accept a paycheck for work she wasn't doing because she couldn't follow the rules for being a judge. 
Still, she's no longer a judge and can't be again.  Which is a good thing.

Since now she can try to get that other job. You know, the one she was doing while sitting on the bench.  Disgraced ex-judge Coker has filed to run in the Republican primary as a candidate for Polk County District Attorney against the incumbent, William Lee Hon.  

Hon who is himself not without a role in the Coker mess. As Kennedy observed, it was one of Hon's investigators who ratted Coker out.  It was one of his line prosecutors who got the benefit of her improper text messages.  And the Chronicle says that Hon himself was a witness at the Judicial Conduct Commission's hearing about her. 

As I said, most judges don't violate the rules as flagrantly as Coker.  (Or at least, don't get caught doing it.)  The ones who get caught?  Sometimes they're removed from office (or remove themselves). Sometimes they get to declare that they've been vindicated because they aren't actually punished (See Keller, Sharon.) 

And sometimes they run for District Attorney.  The Chronicle Editorial begins with a question.
What's East Texas for chutzpah?
But like all responsible editorials, it assumes that the public will know better than to vote for her.  I'm more cynical than that.  

The old joke:
What do you call a prosecutor who cheats?
Your Honor.
The new joke:
What do you call a crooked judge?
Madam Prosecutor.


  1. Since so many judges have first served as prosecutors, I wonder whether disqualifying prosecutors from running for judgeships would tend to change the outcome of criminal trials, particularly in respect to capital crimes. I'm sure there are cons as well as pros. And I realize that such a change wouldn't apply to Coker. Of course, it wouldn't be a bad idea to bar her from a prosecutorial position, since she's already demonstrated her bias in favor of prosecution, and her willingness to sidestep the law.

  2. Since we're on the topic of crazy things judges say when running for election, check out this press release by Idaho's Chief Justice: I love the part where he says "if my opponent had has his way, why, dozens of people would have been released from death row!"