An opportunity for reform

Historically, public corruption has been a low priority in Texas, and that's how we end up with places like Booger County. Below are some reforms that I hope the Texas Legislature will consider in 2015, as well as things that you can do to get the Texas Legislature's attention. But first, something needs to be done about Judge Stem.

1.  Impeach Judge Stem

Obviously, the State Commission on Judicial Conduct is not going to act against Judge Stem.  Fortunately, there are other options.  The Texas Constitution allows ten attorneys to petition for the removal of a district judge, with the case to be tried in the Texas Supreme Court.  Art. 15, Section 6.  To my knowledge, that has never happened before, and for good reason.  I doubt I could find nine more lawyers who are willing to endure the inevitable retaliation.  A better option is the Texas House of Representatives, which still retains the power to impeach, and the Texas Senate, which still retains the power to convict and remove. Impeachment is a very rare bird in Texas, but I dare say that the impeachment of a corrupt judge is far more important than the efforts to impeach a regent of the University of Texas. If enough legislators hear from their constituents, they just might reach the same conclusion. Find your state representatives here, tell them about this website, and tell them to impeach Judge Robert Stem.

2.  Expand the Texas Rangers, or let another agency investigate public corruption

The only Texas law-enforcement agency tasked with investigating public corruption is the Texas Rangers, and there are only 150 rangers in the entire state. The population of Texas is projected to surpass 27 million residents in 2014, yet we had more rangers in the 1800s than we have now. That's nuts. Most of the average ranger's workload consists of investigating murders or suspicious deaths in small towns and rural counties, where the local police or sheriff's department lacks the resources or expertise to handle a murder case by itself. Last year, a senior ranger told me that his men could barely keep up with the murders and suspicious deaths alone, never mind the other responsibilities. One of those other responsibilities is investigating officer-involved shootings in small towns and rural jurisdictions (and occasionally larger jurisdictions), and those are obviously high-priority cases, too. Public corruption investigations, meanwhile, get pushed somewhere down the list. The legislature needs to expand the number of rangers considerably, or it needs to be give authority to another entity investigate public corruption, perhaps the Criminal Investigations Division of the Department of Public Safety.

3.  Expand prosecution authority beyond the local district attorney

Another limitation on the rangers is self-imposed, although I do not blame them for imposing it. As a matter of policy, the rangers will not investigate public officials unless the local district attorney indicates in writing that he or she will prosecute the violations that the rangers uncover. Why? Unlike most other states, the attorney general in Texas has very little power to prosecute crimes unless the local prosecutor asks the AG to handle the prosecution (historically, local DAs have resisted any legislative attempts to expand the prosecutorial powers of the AG and, as a result, local DAs in Texas probably have more power than any other local prosecutors in the country). If the local DA won't prosecute the case and does not want the case prosecuted, that means it probably won't be prosecuted by anybody. Obviously, if the local DA is part of the political corruption, as John Paschall was in Robertson County, then he is never going to approve an investigation by the rangers. Even an honest DA in a small town might be reluctant to authorize an investigation of a local judge, like Judge Stem, because all of the DA's cases have to go in front of that judge.

That's a ridiculous and unnecessary predicament, and you can't blame the rangers for refusing to investigate political corruption in a county where the DA refuses to prosecute political corruption.  Until Coty Siegert was elected DA, there were only two ways to prosecute political corruption in Robertson County under state law: (1) ask Judge Stem to file a petition for a court of inquiry; or (2) ask a grand jury selected and appointed by Judge Stem to undertake an independent investigation. Good luck with either one. Meanwhile, outside of Robertson County, everyone else in state government was powerless.  In my blog post about the indictment of Governor Rick Perry, I mentioned the possibility of putting the AG in charge of political corruption cases or giving that authority to a bipartisan commission.  Regardless of how it's done, the legislature needs to insure that “outsiders” have the authority to investigate and prosecute political corruption in a place like Robertson County.

4.  Abolish the State Commission on Judicial Conduct and start over

As you can see from this website, the State Commission on Judicial Conduct is worthless. In fact, it is worse than worthless, because it creates the false impression that someone is actually policing the judiciary. The Houston Chronicle has long railed against the ineptitude of the commission (see, e.g., here and here), and the legislature needs to sit up and pay attention.  The proceedings and records of the commission – or its successor – need to be opened to the public, because the citizens of this state have a right to know about misconduct by judicial officers. Period. The public certainly had a right to know why Judge Stem got a slap on the wrist after committing crimes on the bench. The current commission should be scrapped, and its successor should be given an unequivocal mandate to crack down on misbehaving judges.

5.  Reform the State Bar of Texas

For most of its history, the attorney disciplinary process in Texas has been haphazard and heavily politicized. The new chief disciplinary counsel shows promise, but the structural problems remain in place. Texas allows attorneys to regulate themselves, for the most part, and that's a really dumb idea. As with any cartel, there's an incentive to protect the members rather than the public. And like the State Commission on Judicial Conduct, the state bar suffers greatly from a lack of transparency. I can understand why the bar would want to handle mental health or perhaps even substance abuse cases privately, but everything else should be prosecuted in public just like any other civil or criminal case. The past has shown us the alternative: powerful and well-connected lawyers get a slap on the wrist, or their cases get swept under the rug. 

The local grievance committees should be overhauled or eliminated. I have repeatedly seen sleazy lawyers get elected or appointed to state bar offices, particularly the grievance committees, and several of my lawyer friends have made the same observation. We suspect that some of the sketchier lawyers and firms deliberately try get their people on grievance committees as an act of self preservation. Recall that Rusty Russ spent 16 years on a grievance committee.  The Supreme Court of Texas has nominal oversight over the bar, but the justices understandably are more interested in deciding cases than running an administrative agency. Do them a favor: give the responsibility to someone else.

6.  Enact term limits for judges, and reform the selection process

In more than 30 years on the bench, Judge Stem has never had an opponent. There are good reasons for that, and they have nothing to do with what a great judge he is. For one thing, Judge Stem is the only district judge in Falls or Robertson Counties. Most of a local lawyer's cases will go before Judge Stem, and if he or she runs against the judge, the judge will retaliate. Equally as significant, there may be a dozen or fewer lawyers in each county. Some of those lawyers may no longer practice, or they may not be trial lawyers. Thus it is nearly impossible to find (1) a qualified challenger who is (2) willing to run.  As a result, a judge in a rural county can become the "Boss Hogg" for that county, because he is the only game in town, and he can stay in power for as long as he chooses.

Term limits for judges are an obvious solution to that problem and, in my opinion, the best solution. Most judges -- even those in larger counties -- know that they can likely hold power for as long as they want it, and a lot of those judges start acting like feudal lords rather than public servants.  Imagine the change in demeanor of those judges if they knew that they had a maximum of eight years in power, and then they would have to go back to swimming with all the other little fishes.  I dare say a judge would be less likely to walk all over the lawyers and litigants if he or she knew that those lawyers and litigants would soon be colleagues and clients.

The legislature should insure that all counties have at least two district judges (and preferably three or more) to prevent the concentration of too much power in one person. Even at the federal level, problems arise when a district judge is the only judge in his or her division, i.e., the only judge in the courthouse.  Note that U.S. District Judge Walter S. Smith, Jr. of Waco and former U.S. District Judge Samuel Kent of Galveston -- both accused of sexually abusing female courthouse employees -- were the only judges in their respective courthouses. They were lords of the manor, and they acted accordingly.

By contrast, some of the least populous counties in Texas have more than one district judge because the judges are elected in overlapping districts that may include a half dozen counties. The pool of candidates -- and the options for voters -- are expanded accordingly. That should be the standard for all of the state's rural counties.  Falls and Robertson Counties could easily share judges with Brazos and McLennan Counties, for example, and that would expand the options for voters in all of those counties. At a bare minimum, voter should have the option of choosing "none of the above" when there is only one candidate on the ballot. In that scenario, the office would be declared vacant if "none of the above" wins the most votes, and the governor would appoint an interim judge until the next election.

7.  Reign in special prosecutors

In my blog about the indictment of Governor Rick Perry, I mentioned the problems inherent in the appointment of special prosecutors. Normally, a special prosecutor is appointed whenever the regular prosecutor has a conflict of interest. In Texas, there are two ways to select a special prosecutor.  First, the district attorney can recuse himself or herself from a particular matter, in which case the district judge appoints a "district attorney pro tem" to represent the state.  In the second option, the district attorney does not recuse but instead appoints someone of his or her own choosing

There are problems with both options. A special prosecutor appointed by the DA can still be fired by the DA, which means the special prosecutor is not fully independent.  This was the method chosen by Milam County District Attorney Bill Torrey, a former criminal defense attorney, when he assumed office in 2012. Torrey appointed none other than John C. Paschall to prosecute all of the defendants that he had formerly represented in private practice, and he is still using Paschall's services notwithstanding the fact that the state bar has charged Paschall with misappropriating money from the estate of Marium Oscar.  Conveniently enough, Paschall has also taken over Torrey's private practice and is now renting office space from Torrey. But I digress.

In either case, the voters have no say in the selection of a special prosecutor. Even in the case of a pro tem, a single judge selects the special prosecutor according to whatever criteria the judge chooses (e.g., whether he is a drinking buddy). For all practical purposes, once that pro tem is appointed, he answers to no one but himself.  Whereas the DA or AG must balance multiple cases within a single budget, the special prosecutor gets paid to handle one case, and he (or she) only gets paid for as long as that case is open. Thus there is no incentive to drop a bad case, and a small county may have no choice but to keep writing checks to some random lawyer who has chosen to go on a witch hunt at taxpayers' expense.

That said, there is a definite need for special prosecutors when a local prosecutor has a conflict of interest. Hence my suggestion that a statewide commission -- perhaps the same commission that might oversee public corruption cases -- be given the authority to hire and fire special prosecutors all over the state.  This would eliminate the problems with both of the current methods for selecting and appointing special prosecutors.

8.  Reform the grand jury

A Texas grand jury can be chosen either randomly or by a group of grand jury commissioners appointed by a district judge. Only Texas and California allow non-random selection of grand jurors, and it's a lousy idea.  Is it any wonder that Judge Stem appointed the sister-in-law of John C. Paschall's attorney as forewoman of the grand jury that would be charged with investigating Paschall? All grand jurors should be selected at random. Period.

Grand juries also need greater independence. First, here's the standard platitude about grand jury independence: “Texas courts have long described the grand jury as a separate tribunal, independent of the control of judges and prosecutors.” In re Guerra, 235 S.W.3d 392, 408 (Tex.App. – Corpus Christi 2007), disapproved of on other grounds by In re Blevins, ––– S.W.3d ––––, No. 12–0636, 2013 WL 5878910, *3 (Tex. Nov. 1, 2013).  Now, here's the reality about grand jury independence: prosecutors strictly control the flow of information to grand juries and they try hard to influence the outcome of grand jury decisions, as revealed in this December 1, 2013 report from the Houston Chronicle. You may have heard the old saying that a good prosecutor can get a grand jury to indict a ham sandwich.

In some jurisdictions, like Maryland, grand jurors are given a fairly informative handbook about their rights and responsibilities. That's a good starting point, but I would go a lot further. Specifically, I would create the office of grand jury counsel, an elected office with the primary responsibility of representing and advising the grand jury. Prosecutors have an inherent conflict of interest, because they cannot give independent legal advice to grand jurors even as they are trying to "sell" the grand jury on an indictment. Consider this scenario: grand jurors ask to see additional evidence about a case, and the prosecutor refuses. The grand jurors ask whether the grand jury has the legal right to see the evidence, and the prosecutor says "no." Where do the grand jurors get a second opinion? And who is going to represent them if they try to challenge the issue in court?

Prosecutorial misconduct has garnered a lot more attention since the exoneration of Michael Morton, who spent nearly 25 years in prison because a prosecutor withheld evidence, and that's a good thing. Prosecutors have enormous power, and they need a lot more scrutiny. On the one hand, the grand jury counsel could serve as a "court jester," pointing out weaknesses in the DA's case and asking inconvenient questions that non-lawyers might not know they need to ask.  On the other hand, the grand jury could assign its counsel the duty of prosecuting a case where the DA refuses or has a conflict. See, e.g., In re Guerra (prosecutor had conflict of interest).  In most counties, it would be a part-time role at best, but it could provide a much-needed check on the power of local prosecutors. I'm sure most local judges and prosecutors would oppose the idea, because one of the greatest fears among elected officials in the courthouse is a "runaway grand jury" that starts asking questions about elected officials in the courthouse. In my opinion, that's all the more reason to do it.

9.  Put video cameras in every courtroom

People generally behave better when they know they're on camera.  Judges are no exception. If we can put video cameras in every patrol car in the state, there is no reason why we can't put video cameras in every courtroom. Record the audio and video, and live stream everything to the Internet.

10.  Curtail judicial immunity

In Dennis v. Sparks, the plaintiffs sued a state district judge in South Texas because he had allegedly accepted a bribe to issue an injunction against them. 449 U.S. 24, 101 S.Ct. 183
(1980).  The U.S. Supreme Court held that the plaintiffs could sue the people who bribed the judge, but not the judge himself, because the judge was protected from suit by the doctrine of judicial immunity. Even if the state judge was criminally convicted of accepting the bribe, the court wrote, the judge was still immune from civil suit because he was acting in a judicial capacity when he granted the injunction.

More recently, the case of Judge "Shirtless Wade" McCree, a judge who carried on an affair with a woman and sexted her pictures of himself while he presided over her child custody case, has drawn attention to the extraordinary reach of judicial immunity. While there is a legitimate need to protect judges from being sued for doing their jobs, the pendulum has swung too far. In 1987, a report from the Cato Institute explained how judges have steadily expanded the doctrine of judicial immunity to protect themselves at the expense of the poor saps who appear before them.

Texas could take the lead on this issue, and it should.  The Texas Legislature has no control over the breadth of immunity under federal law, but it could certainly curtail the breadth of judicial immunity under state law.  For example, the State Commission on Judicial Conduct could be given authority to waive a judge's immunity from civil suit, or a judge's immunity could be waived automatically if the judge is convicted of a crime related to the misuse of his or her office. Judges should be subject to the same laws as the rest of us.



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