Column for 23 July 2011



“Keep far from a false charge and do not kill the innocent and righteous, for I will not acquit the wicked.”

–Exodus 23:7


The criminal justice system in Texas is broken.  Badly.  We lead the nation (and indeed the industrialized world) in executions and exonerations of the wrongfully convicted.  Disturbingly, some of these exonerations involve clear cases of misconduct by prosecutors and/or the police, misconduct that is for all intents and purposes never punished.  We currently have well over 2,000 discrete felony offenses on the books, eleven of which involve oysters and the most recent of which makes cheating in fishing tournaments a felony.  Texas has one peace officer for every 300 men, women and children, a level one would more likely associate with East Germany before the Berlin Wall fell than in a democracy.  Our prison-industrial complex is the largest in the world, and only likely to grow as private prison corporations seek to influence legislators into passing draconian Arizona-style police-state legislation so that they can make even more money off taxpayers by housing an expected tide of illegal aliens.  Our incarceration rate is second in the nation (behind Louisiana, so thank God for that).  The Court of Criminal Appeals, the state’s highest court for criminal cases, has become a national joke for its’ ludicrously pro-prosecution bias, culminating in Presiding Judge Sharon Keller literally locking the courthouse doors to prevent defense counsel from filing an appeal in a death penalty case.  The conviction rate in criminal jury trials has held steady at around 84% over the last ten years (aided at least in part by a public that is woefully uninformed or misinformed about the law in general and criminal trials in particular), yet we are still eighth in the nation in per capita crime rate, some 25% higher than the national average.  Our institutional devotion to criminalization, prosecution and incarceration doesn’t seem to have accomplished much in terms of keeping the average Texan safe.  Part of the problem lies in the creaky, bloated, outdated Texas constitution: we have a highly politicized criminal justice system and pick our trial judges in just about the worst way possible, direct partisan election.  As a result, judicial candidates are put in the uncomfortable position of running on party platforms that contain clear positions on a variety of issues they might be called to rule upon.  Also, whenever the political tides shift, judges of the “wrong” party are swept out of office and replaced by new judges who might be just as competent or better, but might also be just some random lawyer who agreed to run and had the right letter beside his or her name.  It gets even worse at the appellate level, where we would hope that judges would be more insulated from political pressure.  Texas has fourteen appellate courts, two of which are located in Houston.  Recently, one of those courts was called upon to review a challenge to the constitutionality of Texas’ sodomy law and the local Republican Party threatened to expel any Republican justices who voted to overturn the law.  In order to appeal to voters, judicial candidates are running on promises to “get tough” on crime, claims that make me seriously question their impartiality.  Justice is not a Democratic or Republican issue and it’s not the job of judges to “get tough” (or for that matter go easy) on criminal defendants. I still firmly believe that trial judges should be elected.  Public opinion helps keep judges from becoming too arrogant.  However, these should be non-partisan elections with stricter guidelines on campaign financing.  Lawyers should not be allowed to practice before judges they contribute money to and judges should be forced to recuse themselves in cases where they are being called upon to rule on individuals who subsidize their election.  I’d also extend the terms to six years and in the urban counties have each judge run out of a county commissioner’s or justice of the peace’s precinct, to increase diversity on the bench.  Cases would still be assigned on a county-wide basis, to decrease the danger of a “home court advantage.”  At the appellate level, I would like to see a modified form of the Missouri System, where the governor appoints judges off of a list prepared by a non-partisan panel of lawyers and non-lawyers.  Every ten years, these judges would face the voters in their district in a retention election.  If a majority of the voters vote for them, they get another ten year term.  If not, they are removed and the governor has to pick someone else off the list.  The Court of Criminal Appeals needs to be made much more professional.  For starters, I would require that all judges on that court be board-certified in criminal law.  I would also use an appointment-retention system here, with nine judges being selected for ten year terms out of nine new districts that cover the whole state in total and allow the judges to elect one of their own as presiding judge.  Lastly, something must be done to discourage and punish prosecutorial and police misconduct.  I personally do not think this is a widespread problem; I can think of only two instances in thirteen years of practice where I saw pretty clear evidence that a prosecutor had behaved improperly.  Nevertheless, when there are no negative consequences at all in cases where prosecutors withhold evidence of a defendant’s innocence, or engage in egregious misconduct like carrying on a sexual affair with a trial judge, the entire system suffers.  I’m not generally in favor of creating new criminal offenses, but there needs to be some sort of obstruction of justice offense, a felony, with a sufficiently long statute of limitations that it could be used in those rare instances where it is proven beyond a reasonable doubt that a prosecutor or a police officer acted deliberately to deny a criminal defendant a fair trial.  Such cases would need to be brought by an independent agency, something along the lines of the highly-respected Public Integrity Unit of the Travis County District Attorney’s Office.  The state also needs an agency similar to the Conviction Integrity Unit of the Dallas County District Attorney’s Office, dedicated to reviewing past convictions for possible claims of innocence or misconduct.  These are all major changes to be sure, but the justice system is very similar to religion, in that they both rely on faith.  If people cannot have faith that the innocent are protected, the system fails us all.

Published in: on July 22, 2011 at 9:41 pm  Comments (2)  
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2 CommentsLeave a comment

  1. Most of us in our lifetimes will have some contact with the system Chances are that we or someone close to us has been picked up by the police for some indiscretion or criminal act. It has been my experience that through this constant bombardment of crime shows and personal experiences most people are left thinking they know far more then they really do.

  2. At the state level the Attorney General provides some assistance and expertise to local law enforcement in the investigation of crimes that are multi-jurisdictional occur in multiple counties such as organized crime. Superior Court judges preside over cases that come through the system.

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