Jul 07 2013

Case of Texas Judge Reveals Coziness Between DA’s Office and Bench

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.

Judge Coker: Photo Courtesy of Trinity County

Judge Coker: Photo Courtesy of Trinity County

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.

9 comments

Skip to comment form

  1. I have observed (though less obviously) the same basic behaviors in Maine courts. It seems obvious to me that the bench should not be “prompting” attorneys, but it does go on a lot.

    1. It sure does. This is just the most glaring example of it.

  2. Of course, nothing like this could happen in Nassau County, right? Perhaps not, unless Justice Sher was involved:

    “55. On November 15, 2012, the return date of the plaintiff Zarak’s cross-motion in Zarak v. County of Nassau, et al. (Nassau County Index No. 8963/12), Justice Sher placed telephone calls to the defaulting defendants wherein she reminded them that they did not submit any opposition to the plaintiff’s cross-motion, she offered to grant an adjournment of the cross-motion so that opposition can be filed if any of the defendants so desired, and she counseled one of the defendants on how to win its case. Justice Sher further stated that she “always” makes these types of phone calls to defaulting defendants.
    56. On information and belief, the source being a communication Rozz received from counsel for the plaintiff Zarak, the plaintiff did not consent to, and was completely unaware of, Justice Sher’s ex-parte communications to his legal opponents.
    57. Remarkably, the phone call was made in open court in the presence of Rozz.”

    Immediately upon receiving plaintiff Rozz’s motion for disqualification due to this (and many other, similar acts), Justice Sher recused herself without a hearing and the motion papers were removed from the court’s file. This excerpt was taken from Rozz v. Law Office of Saul Kobrick, P.C., index no. 8019/12. Rozz apparently is a pro se litigant who seems to have had several problems with Justice Sher who, I believe, is unfavorably reviewed in “The Robing Room”.

    1. Obviously, assisting the other side with advice is not permitted and improper. Calling the other side when there is an apparent default, however, just saves all sides time. Once the court enters a default, often comes the vacatur motion and more needless procedural litigation. Her practice of calling the other side lets the matter be decided on its merits and not because some lawyer mis-calendared a date. I am sure if Judge Sher saw repetitive failings on the part of counsel, she would not extend this courtesy, but anyone can miss a court date once in awhile and this practice, provided she gives the same courtesy to all parties, is efficient and fair. The Robing Room only applies to Federal judges to my knowledge so I don’t think Judge Sher is rated on that site.

  3. Due Process requires that criminal defendants receive a fair trial. In high-publicity trials, trial judges have the responsibility to minimize effects of publicity, perhaps by implementing a gag-order on the parties and to eliminate outside influences during the trial. An interesting question of outside influence went to the U.S. Supreme Court in 2007 in Carey v. Musladin, 549 U.S. 70 (2006) . After the victim’s family wore pictures of the victim on buttons during the trial, the jury convicted Musladin of murder. The Supreme Court overturned the Ninth Circuit’s grant of post-conviction habeas relief for a lack of due process because no clear federal rule existed regarding spectator conduct.

    • PsychOfficer on September 5, 2013 at 7:55 pm
    • Reply

    I have actually appeared in front of Kaycee Jones and I have to say, her demeanor was not at all fair or professional towards myself, or my attorney. I had hired an ‘outsider’ as an attoryney from Walker County, and my ex-husband had hired the good ol boy from across the street.

    1. Sorry to hear that. If you or your attorney feel she was that unfair you can report her conduct to the Judicial Grievance Committee in your state

    • polk county resident on October 25, 2013 at 2:14 am
    • Reply

    Judge coker has also ruined my fam­i­lies life. She sen­tenced my 37 year old brother 99 years for allegedly sex­u­ally abus­ing his own daugh­ter. There was no evi­dence pre­sented that he com­mit­ted this crime that he was accused of and the exam­iner that exam­ined the child stated in court that the child had not been touched. But yet her and Lee Hon can ruin someone’s life behind false accu­sa­tions. On top of that the whole court pro­ceed­ings were uneth­i­cal. For instance all dur­ing the trial there were jokes and laugh­ter going on from Coker as well as the dis­trict attor­ney (Lee Hon). Another thing that took place that I was uncer­tain about was the fact that my brother asked for another attor­ney instead of the present court appointed lawyer and she told my par­ents that the only way that he could change lawyers is if a new lawyer is present before the trial the next day. I don’t give credit to Karma, I give all credit to God because he said in his word that “you will reap what you sow.” In my opin­ion Coker was able to get off easy but her judge­ment day is com­ing and she will have to answer to the almighty God for all of the many lives in Polk County, San Jac­into County, Trin­ity County, and other coun­ties that she have destroyed behind her coruptness!!!

    • Francis Pryor on October 30, 2013 at 7:09 am
    • Reply

    It is not just Texas, Been a member of the defense bar since 1975.I retired last year. Over the years no telling how many times I have seen this type of thing. But there were no cell phones or cameras to record it. The State bar of Texas should impose some punishment also.

Leave a Reply to Oscar Michelen Cancel reply

%d bloggers like this: