Last week, over in Houston, a state district court judge (read that, trial judge) who’s still pretty new to the job, ruled that the death penalty was unconstitutional.  This got lots and lots and LOTS of media coverage.

This week, Judge Kevin Fine changed his mind.  He’s rescinded that ruling and he’s set the matter for an evidentiary hearing next month.  No typo there, not next WEEK but next MONTH. 

Evidence on a law issue?  Right.  Whether or not the death penalty is constitutional isn’t really a legal conundrum in this country.  Whether or not a particular individual should be punished by death is a fact battle.  Aggravating factors, mitigating circumstances. 

Let’s take a moment.  Right now, the Texas Judicial System has the following stories in the national spotlight:

The Chief Justice of the highest criminal court in Texas, Sharon Keller, carries the label “Killer Keller” and her removal from office is still a possibility; and  

The New York Times is having a field day with its recent coverage of the Texas judge (and former Court of Criminal Appeals justice) who had a long-term love affair with the prosecutor — and the U.S. Supreme Court possibly hearing the case brought to it by the defendant setting on Texas Death Row after getting tried and convicted (and sentenced) in this Courtroom of Love.

Maybe it’s not the best time for a state trial judge to be doing this sort of thing, especially when the media’s already having such fun with all his tattoos.   Really.

Last September, everyone in Kerrville was surprised when District Judge Karl Prohl suddenly resigned from the bench, with more than a year left in his term.  The Kerrville Daily Times reported on how Judge Prohl’s letter of resignation — effective immediately — shocked the courthouse.  One staffer supposed that at the age of 69, and after serving as judge for almost 19 years, Judge Prohl was simply ready to retire. 

We can assume that the Office of the Attorney General for the State of Texas could have enlightened the Kerrville folk, should they have chosen to do so.  Because last Friday, the AG’s Office obtained an indictment against retired judge Karl Prohl, and the jurist was arrested that evening.

Retired Kerrville Judge Karl Prohl was indicted on a felony charge of theft by a public servant that involves $34,706 purportedly received from public monies tagged for travel-related expenses. Within the indictment is a tally of seventeen (17) different payments made to Prohl by four different sources:  Kerr County, two probation departments, and the district attorney’s office. 

Right now, Karl Prohl is out on a personal recognizance bond.  He’s hired a lawyer and he’s offered to pay restitution. 

We’ll see if defense negotiations work here — there’s lots of rumors (there were, even back in September 2009) that Prohl’s case is intertwined with the indictment of former Kerr County District Attorney Ron Sutton for various bad acts.  That may well complicate Prohl’s defense and the easy exit that he has obviously desired.

Late last week, a federal jury came back with their verdict in the case of the United States v. Manny Barraza over in El Paso.  The verdict? 

Former Criminal District Court Judge Manuel Joseph Barraza was guilty of two (2) counts of wire fraud and the deprivation of honest services and one (1) count of making false statements. They split the baby, somewhat, acquitting the former Texas Judge of one count of mail fraud.

What happens now? There Goes the Judge … Directly to Jail, Sentencing in April 2010.

Today, Manuel Barraza is a free man.  He’s out on bond.

However, that’s gonna change on April 28, 2010, when he returns to federal court for his sentencing hearing before U.S. District Judge Frank Montalvo.  We already know that the federal judge will enter a judgment of criminal forfeiture that day, since Barraza’s already negotiated a deal to return the $ 5100 he got as a bribe.  However, we don’t know how much time behind bars the former judge will have to spend, or how much money he’s gonna have to pay in fines.  Except in both instances, it’s gonna be a lot. 

At sentencing, former Judge Barraza faces a possible sentence of 23 years in prison and $750,000 in fines:

• 20 years in prison on the wire fraud
• 3 years in prison on the count of making false statements
• $250,000 fine on each of the fraud counts, or $500,000 maximum fine
• $250,000 fine on the false statements charge.

Don’t Remember the Backstory on Judge Manuel Barraza’s Fall from Grace?

Formerly an El Paso criminal district court judge, Manny Barraza was caught taking bribes from criminal defendants in exchange for his help in felony cases coming before him.  He’d take either cash or sexual favors from individuals appearing before him — and he was smooth enough to even get cases transfered to his court if the price was right. 

How did he get caught?  You guessed it.  An undercover (pardon the pun) FBI Agent tape-recorded the Judge during one of his bribe negotiations.

While the chief justice of the highest criminal court in the State of Texas continues her work from the bench, it appears that lots of other folk are working hard behind the scenes, too — especially now that we’ve got the findings from Judge David Berchelmann for everyone to view.

Tomorrow would have been the deadline for the “examiners” (those in the role of prosecutor when the proceedings are involving a setting judge being investigating for possible removal by the Judicial Commission) to file any challenges that they might have to Judge Berchelmann’s determinations.  They could have quietly let that deadline just float on by, letting their silence speak. 

But noooooo.  The examiners have formally requested an extension of time within which to file their response, and they’ve been given a new deadline of February 17, 2010.  (The Commission’s short, one page order doesn’t provide any details, just the new date.) 

What does this mean?  It means that the examiners/prosecutors are preparing some objections to Judge Berchelmann’s findings.  There’s simply no other good reason to ask for more time. 

Even more telling, it’s been told to the media that Chip Babcock, attorney for Justice Keller, is going to be filing responses to Berchelmann’s work (under this new deadline, he requested an extension as well) on behalf of Justice Keller.

Paper Fight! Paper Fight!

Which boils down to this:  lots is happening behind closed doors regarding the fate of Chief Justice Sharon Keller of the Texas Court of Criminal Appeals.   When will the public get a glimpse into all this?  Well, the filings that are due on February 17th will be made public, and all the arguments in the paper fight will be made known.  (Everything filed of record with the Commission is placed online, in .pdf format.)

Public Hearing

As for a public hearing of the Commission’s efforts, that is required under the law and should be held before the Commissioners with both the examiners and Chip Babcock making their oral arguments (as already identified in their paperwork).  Judge Berchelmann remains the fact finder, if the Commissioners want more fact-finding, things will go back down to San Antonio (where he presides over a state district court in Bexar County). 

Otherwise, things will go back behind closed doors after that public hearing as the Commissioners debate what to do about Justice Keller.  They will have three options:  (1) remove her from elected office; (2) dismiss the charges against her; or (3) reprimand her (she gets cited as doing something bad, but keeps her job).

And, just so you know, these 13 Commissioners that will be judging the Chief Justice are:

Chair
Mr. Jorge C. Rangel
Attorney
Corpus Christi
Appointed by State Bar of Texas
Term Expires: 11/19/2011

Vice-Chair
Hon. Jan P. Patterson
Justice, 3rd Court of Appeals
Austin
Appointed by Texas Supreme Court
Term Expires: 11/19/2013

Secretary
Ms. Janelle Shepard
Public Member
Weatherford
Appointed by Governor
Term Expires: 11/19/2011

Members
Hon. Sid Harle
Judge, 226th District Court
San Antonio
Appointed by Texas Supreme Court
Term Expires: 11/19/2011

Ms. Ann Appling Bradford
Public Member, Midland
Appointed by Governor
Term Expires: 11/19/2009

Hon. Michael R. Fields
Judge, County Criminal Court at Law #4
Houston
Appointed by Texas Supreme Court
Term Expires: 11/19/2009

Hon. Tom Lawrence
Justice of the Peace, Precinct 4
Humble
Appointed by Texas Supreme Court
Term Expires: 11/19/2009

Mr. Tom Cunningham
Attorney, Houston
Appointed by State Bar of Texas
Term Expires: 11/19/2013

Mr. William “Bill” Lawrence
Public Member
Highland Village
Appointed by Governor
Term Expires: 11/19/2009

Ms. Karry K. Matson
Public Member, Georgetown
Appointed by Governor
Term Expires: 11/19/2013

Ms. Patti H. Johnson
Public Member, Canyon Lake
Appointed by Governor
Term Expires: 11/19/2011

Hon. Joel Baker
Judge, Smith County Court, Tyler
Appointed by Texas Supreme Court
Term Expires: 11/19/2011

Hon. Edward J. Spillane, III
Judge, College Station Municipal Court
Appointed by Texas Supreme Court
Term Expires: 11/19/2015

Last Thursday, the Federal Bureau of Investigation and the Texas Rangers continued their state-wide clean up of the Texas judicial system as Texas authorities arrested Athens, Texas municipal judge Monica Corker for the charge of Abuse of Official Capacity.   

Working with the federal law enforcement experts, the local District Attorney’s office with the County Sheriff took Judge Corker into custody for the one charge,  and after inventorying the contents of her purse, charged her with a second felony — Fraudulent Possession of Identifying Information.

Judge Corker posted bond and was released from jail that same afternoon.  You can bet we’ll be hearing more on this case, especially since rumors are flying around the local cummunity that Judge Corker isn’t going to be the only official that will be charged.

By way of recap, let’s review some other bad acts of Texas Judges that we’ve posted here on the blog (and this isn’t a complete list, by the way): 

El Paso State District Judge Manuel Barraza arrested by the FBI on four counts of federal criminal activity that is being described as taking bribes and soliciting sex from defendants appearing before him; the grand jury indictment includes three charges of “wire fraud and deprivation of honest services” and a fourth charge of lying to a federal agent. (Judge Barraza’s trial just got moved to January 2010.)

Tarrant County municipal court Judge Tiffany Lewis took a plea  after the drama of stopping trial just before opening statements began, pleading guilty to a felony charge of misapplication of fiduciary funds (she’s alleged to have taken around $70,000), whereupon she was sentenced to 60 days in jail and 10 years probation.  (The State Bar of Texas already ordered her to payback the money that was taken.)

Galveston Federal District Judge Samuel Kent investigated and arrested for sex crimes and indicted (formally charged) with three federal crimes: (1) two counts of abusive sexual contact and (2) one count of attempted aggravated sexual abuse.  (Judge Kent’s already serving jail time.)

Houston Criminal Court at Law Judge Donald Jackson was indicted in September 2009 for official oppression and the Judicial Commission has stopped Judge Jackson from taking the bench. 

Dallas County State District Judge Bruce Priddy was arrested for DUI, sued by the Texas Attorney General on campaign finance issues, “publicly warned” by the State Commission on Judicial Misconduct, and suspended from the practice of law — and all the while, kept right on hearing cases from the bench.  (Judge Priddy’s still on the bench today.)

Chief Justice of the Texas Court of Criminal Appeals Sharon Keller was sued in civil court, forced to update her personal financial statements which added over $2 million, and faced trial this summer for her actions on the day that Michael Richard was executed.  (There hasn’t been a decision at this juncture on that formal trial of Justice Keller as of today.)

Back in April, we wrote about the shocking fall from grace of Judge Manuel Barraza, as he was arrested in El Paso by federal authorities on charges of taking bribes and other bad things. 

And now just as the federal trial was about to begin where Judge Manuel Barraza is being tried for fraud everything stops.  Why?  Because the defense succesfully argued that they need more time to review new evidence presented to them by the U.S. Attorney’s office. 

The panel of potential jurors was all ready for jury selection to begin, and then the continuance hit.  Bet they aren’t too upset about the delay.

Barraza’s federal trial is re-set to January 19, 2010. Wanna bet we here of a deal being struck?

Interestingly, Judge Barraza’s attorney is Marvin Mosbacker, one of the co-indictees with Dick Cheney in the Guerra corruption charges filed last year in Raymondville regarding private prison abuses and moved by Judge Manuel Banales (not Barraza) to the Texas Supreme Court. 

Small world.

Once again, Texas courts are making international headlines and not in a good way. 

This week, the Texas Court of Appeals for the Second Circuit over in Fort Worth issued its decision in the case of James Kevin Pope.  Seems Mr. Pope was tried and convicted of sexual assault of a child — an unfortunate crime, to be sure, but not one that rare or unheard of in our state, or in our country.  Heck, Roman Polanski is fighting extradiction on a similar charge right now…. 

It is a particularly disturbing fact pattern, of course:  Pope was convicted of having group sex with his three daughters.   Reaction to these circumstances surely played its part here — but this situation is far from the only heinous fact pattern with which experienced criminal defense attorneys (and criminal court judges) have had to deal.  

Nope, it’s not the crime that is making the headlines — it’s the punishment

What makes James Kevin Pope so newsworthy in places like Sidney, Australia, is the punishment he received — and which the reviewing court approved.  Defendant Pope was sentenced to FORTY life sentences and three 20 year sentences (one for each of 3 counts of sexual performance with a child).  And, the Judge of the 415th District Court over in Fort Worth okayed him serving these sentences consecutively, not concurrently. 

Which means, adding the time periods up as they stack against each other, back to back, you’ve got over 2400 years. 

Using the prosecution’s estimate of 60 years per life sentence, this totals to 2400 years before you add the three 20-year sentences, for a total of 2460 years incarceration as punishment for the crime. 

Of course, everyone knew that the jury voted for this punishment and that trial court judge had the authority to issue his ruling. Everyone also understood that the ruling would go up on appeal.  The trial judge had made a statement with his decision and the appellate court would review things, change the math.

Surprise, surprise.  The Fort Worth Court of Appeals Doesn’t Change a Thing

In a per curiam opinion (Justices Dauphinot, Gardner, and Livingston)(read the opinion here), the Fort Worth Court of Appeals didn’t change a thing.  They determined that there was factually sufficient evidence to support the trial court’s judgment, even if there wasn’t a jury instruction telling the jury which of the alleged criminal acts were the ones that formed the prosecution’s request for a conviction.  Nope  The 2nd Circuit Court of Appeals thought this error to be harmless, and let that Ready-For-David-Letterman’s-Monologue prison sentence stand. 

Just another great bit of media coverage for the criminal justice system of the State of Texas.  We should all be so proud.

Tiffany Lewis’s life will never be the same now that she’s pled guilty to taking client money — lots of client money — in a probate case … but we’re not too sure how ashamed she is just yet ….

On September 15, 2009, former judge Tiffany Lewis pled guilty just as testimony was about to start.

Must have been dramatic earlier this month, there in the courtroom, with the jury of 12 chosen and empaneled, the pre-trial motions all done and the lawyers having just finished their openings. That’s because just before testimony began, Tiffany Lewis decided to take a plea. 

Tiffany Lewis knows all about courtroom procedure and trial tactics … she was both a Dallas prosecutor and a member of the criminal defense bar before taking the bench as a Tarrant County Municipal Court Judge.  She knew how to pick her moment. 

Former Judge Lewis pled guilty to a felony charge of misapplication of fiduciary funds, which is punishable by up to 10 years in prison and a $10,000 fine. (She’s alleged to have taken around $70,000).  She was sentenced to 60 days in jail and 10 years probation.  (The State Bar of Texas already ordered her to payback the money that was taken.)

Courtroom Dramatics and Trial Judge’s Warning to Lewis

This was bittersweet for the prosecutors, since they’d spend countless hours tediously going through all the paperwork necessary to prove up a money case like this. Opting for a plea there in the courtroom battlefield isn’t a happy occasion for a criminal defense trial lawyer, either, in most instances (though we’ve got no info on how Lewis’ attorneys felt that day).

The Judge was apparently very displeased with Tiffany Lewis. Visiting judge David Cleveland told his former fellow jurist that she cannot represent herself as an attorney — because since she’s not a lawyer anymore, having been disbarred by the State Bar of Texas back in 2005.  According to those in the courtroom that day, Judge Cleveland also told Lewis that “someone put their trust in you, and you should hang your head in shame.”  Then he sent her off to jail. 

Shame?  Shame Indeed.  Tiffany Lewis has made her mark in Dallas history.

Perhaps you’ve heard of the ”Tiffany Lewis Clause.”  This was a change made to the Dallas City Charter all because of Tiffany Lewis.  Seems she refused to resign from her job as a municipal court judge even after she had lost her law license and was no longer legally an attorney.  Not only did the State Bar of Texas disbar Tiffany Lewis, but they ordered her to payback her clients $58,225, plus 5 percent interest accrued since August 2003.  That’s a lot of moola. 

In the face of this public denunciation, Judge Lewis still wouldn’t quit the bench, and there wasn’t anything in the charter to force her to do so.  (Hence the “Tiffany Lewis Clause.”)  Let’s consider the shame quotient here. 

Shame?  Not then.  When she was disbarred and sitting on the bench, Judge Lewis denied that she did anything wrong – someone else “close to her” had stolen the cash.  Her position was the State Bar was being too tough on her, and she sat there on the bench, making legal rulings in the face of the disbarment and not caring about the appearance this gave to the legal profession, the judiciary, or the system of justice as a whole. 

In 60 days, Tiffany Lewis will be out of jail.  She’s probably gonna have a happy Christmas dinner with her family.  You gotta wonder if she’ll get it by then … what all she’s  done wrong here.

The Honorable Jerry Buchmeyer died this week in a San Marcos nursing home at the age of 76, after serving the bench for over 30 years.  Considered by many to be a liberal judge, with landmark decisions involving both public housing and redistricting in this state, he achieved even more notoriety for his now famous sense of humor. 

His blog, Say What?!, technically made Judge Buchmeyer one of the first ”blawggers” in our state, and certainly, one of the first jurists to become a blogger.   The posts themselves are repeats of his beloved column in the Texas Bar Journal, entitled “et cetera,” where each month lawyers, judges, and others involved in the legal profession could get a good chuckle from the Judge’s selection of real-life courtroom (and deposition) humor.   Here’s an example of what Judge Buchmeyer gave us:

November 1996 – Did They Really Say That?

From John H. Spurgin, II of Austin (McGinnis, Lochridge & Kilgore), this excerpt from his deposition of the plaintiff in a wrongful discharge case:

Q. Did Rusty White ever attack your person? Did he ever assault you?

A. Well, he used profound (sic) language towards me.

Q. You say he used “profound language”?

A. Uh-huh.

Judge Buchmeyer will be noted in our legal history books as the jurist responsible for the desegregation of public housing; his rejection of single-member districts (which caused statewide redistricting); and last but not least, as the judge who struck down Texas’ anti-sodomy law.  Still, many of us practicing law will remember him with gratitude for the laugh he guaranteed us every month — and in the law, laughter is always welcome and usually needed.

Our condolences to the family and friends of Judge Jerry Buchmeyer.  And our thanks to a treasured jurist. 

A memorial service for Judge Buchmeyer will be held October 2, 2009, at the Belo Mansion here in Dallas.  Memorials in his name may be made to the Judge Buchmeyer Scholarship Fund at the University of Texas School of Law, 727 E. Dean Keaton Street, Austin, Texas, 78705.