We can always count on the glorious state of Texas to bring us the extremes of the criminal justice system: executing a man with a 61 IQ, for example. And now from Polk County Texas comes a story that a judge was texting a prosecutor a line of questioning in the middle of a trial, pushing the cozy relationship between judges and District Attorney’s Offices to new heights.
David Reeves was facing felony charges for allegedly assaulting his minor child. There had been testimony during the trial that Reeves had become enraged when a new puppy soiled his bed with urine and thrown the animal against a wall. Other testimony had also established that Reeves’ baby had severe diarrhea the night he was injured. The judge, Elizabeth E. Coker, texted this question to an assistant district attorney who was in the audience observing the trial, also telling her to forward it to the trial assistant: “If he threw dog off bed because the dog peed on bed, what would he do if baby pooped on him?” The supervising assistant, Kaycee Jones, then forwarded the text to the trial lawyer. The trial assistant did not use the question or that line of reasoning in her case. (Good call on all counts, (a)the question is an improper use of propensity evidence and (b) not using it kept her out of this mess, which is why I chose not to name her). The trial assistant ( in response to a disciplinary committee inquiry about the incident) stated that Jones “is in her ear all the time regarding information she believes to be given her by Judge Coker via text during trial.” The one saving grace in this is that this came to light because a DA’s investigator David Wells, noticed the texting and reported it to William Lee Hon, Polk County District Attorney. So at least someone in that office can be counted on to be fair and playing by the rules.
What’s even more disturbing about this case is that Judge Coker would not allow the defendant to plead guilty to an offered plea bargain which she rejected because it was too lenient to the defendant apparently. The defendant was acquitted of all charges by the way and no one told defense counsel about the hidden texting until five months after the trial was over. Meanwhile Kaycee Jones has been elected to a judgeship for the same courthouse as Coker. Both are facing State Bar and Judicial Commission complaints. Both need to be removed form the bench immediately. Jones should have reported the texting to defense counsel and her superiors. Coker of course failed to maintain an y semblance of impartiality and cannot be allowed to continue to serve in her current capacity. But remember this is happening in Texas, so don’t hold your breath.
This is but a glaring, extreme example of something that is common in courthouses, particularly in suburban, smaller counties. There is a coziness between the bench and the DA’s office. I myself have caught judges having ex parte conversations with the DAs assigned to their parts about my case as I was walking into chambers. Many is the judge who has offered some trial advice to a struggling DA who I am opposing. Sometimes it is helping the DA with framing a question or by asking a number of questions that the DA should have asked on direct examination but failed to do. Other times (and this is one of my favorites) the judge will say “Objection Sustained” to a question I pose to a witness on cross even though the DA did not make any objection. I have made a record on that practice at least three or four times to my recollection. I always tell the judge not to do me the same favor, as I have a right to let a question go even though objectionable if I believe the answer will be favorable or of use to my client. I then remind the court that he or she is not a participant in the trial and should let the adversaries duke it out on their own. Counsel should also object if the court is taking a witness through a direct examination from the bench.
There are a number of reasons for this comfortable relationship: in those counties, former prosecutors make up a significant percentage of the bench. Another large chunk are former county attorneys or other government appointees. Rare is the seasoned criminal defense practitioner who becomes a judge.
There is also this perception that since both work for and are paid by the State, that they are somehow different arms of the same creature. They are “in it together.” DAs get assigned to judicial parts so they see the judge all day every day (or as much of the part of the day as the judge works). They know the judge’s habits, favorite foods, pet peeves, etc. But the judge also knows the DAs habits and when no case is pending, during a conference day for example, I have heard judges offer advice to the DA about a line of questioning or an issue that came up. I have rarely heard the same type of conversation between a judge and defense counsel. It is also not rare for a young ADA to visit a judge after a trial and ask for a critique of their performance or for advice on how to improve. Supervisors also call judges afterwards for the same thing. Finally, the plain fact is that the vast majority of folks brought to the criminal justice system are guilty in some form or another for what they are charged. So some judges get jaded and cynical and soon believe that everyone before them is guilty despite the presumption.
So while the Texas case of Judges Coker and Jones presents an extreme example of the buddy-buddy relationship between DA and Bench, it is a scenario that is played out in less horrendous fashion admittedly) in courthouses all over the country. It is incumbent on the State Bar and other lawyer advocacy groups to demand that these issues be discussed when new judges are being trained prior to taking the bench. Counsel must of course also make a record of any such familiarity they see that they believe impacts the court’s impartiality. It is unfortunate but it is fact that sometimes judges have to be reminded that the DA and Defense Counsel are equal and equally important players in the criminal justice system.