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Defending the Texas and U.S. Constitutions, as well as people charged with crimes, in state and federal court.
BA, Religious Studies, Rice University 1992; JD, University of Houston Law Center 1995.
I am working hard on raising two brilliant (on this subject I could never be impartial) children to respect others, to be kind and generous, to question authority, and in all other ways to be productive members of a free society.
Organizing a successful protest at the Metropolitan Transit Authority (METRO) against the deployment of Transportation Security Administration (TSA) VIPR teams at Houston transit stations.
I have been involved as the plaintiff in one civil suit (suing a guarantor for nonpayment of fees) and as the defendant in one civil suit (being sued for publicly criticizing a lawyer). I have never been arrested or involved in any criminal proceedings (other than tickets) as anything other than a lawyer or a witness.
When I was president of the Harris County Criminal Lawyers Association I held together a motley group of criminal-defense lawyers in the face of divisive acrimony over the (then) possible formation of the Harris County Public Defender's Office. At the same time I increased both the size of the organization and its diversity, helping to pave the way for it to become the premier local criminal-defense lawyers' organization in the country.
I have appeared before many great judges, but even a great judge is still just a judge.
When DNA exonerates a person, the media focuses on the DNA rather than on the flawed evidence used to punish an innocent person…and leave a guilty person free. Eyewitness identification testimony is the single greatest cause of wrongful convictions.
In most criminal cases there is no DNA, and there never will be. So for every innocent person exonerated by DNA, there are many convicted by flawed evidence who will never be exonerated.
The Texas Court of Criminal Appeals should a) raise the standards for effective representation, so that deficient lawyering is less likely to contribute to wrongful conviction; and b) closely scrutinize, when the issue presents itself, the admissibility and weight to be given evidence that is commonly flawed.
Personally, I would like to see the death penalty abolished. Unless we could be 100% certain that no innocent person would ever be executed, the state should not be executing people. We can never—because the system comprises human beings, who are not omniscient—be 100% certain.
As a judge I would set aside my personal feelings and follow the law. As long as the people of Texas support the death penalty, I would support any changes that would make it less likely that innocent people could be executed. Raising the standards for effective representation both at trial and postconviction is a change within the purview of the Texas Court of Criminal Appeals; that would be a good start.
Being "tough on crime" has nothing to do with the mission of the Court of Criminal Appeals. The Texas Court of Criminal Appeals is meant to be a neutral arbiter or the law. Like an umpire in baseball, the Texas Court of Criminal Appeals is there to call the balls and strikes.
When an appellate court is "tough on crime" it becomes an advocate for the government, one of the parties before it, to the detriment of the other party before it. The umpire enlarges the strike zone when the state is pitching and contracts it when the defense in pitching. In doing so it forsakes its sworn role as neutral arbiter.
"Tough on crime" in an appellate court is tough on due process. Rather than a reputation for being tough on crime, the current Court of Criminal Appeals deserves a reputation for being tough on the U.S. and Texas constitutions, and tough on freedom.
It should go without saying that this results-oriented jurisprudence is improper.
The courthouse doors should never be closed to a death-penalty defendant. Refusing an extension to Michael Richard was petty and wrong. If it wasn't a violation of the Texas Disciplinary Rules of Professional Conduct (which govern lawyers) or the Code of Judicial Conduct (which governs judges), it is not only the court but also the rules that have been tested and found wanting.
There are different sorts of justice. There is substantive justice—people getting what they deserve—and procedural justice—people getting a fair chance ("due process" or, in the words of the Texas Constitution, "due course of law").
Justice and mercy are different things. Substantive justice is getting what we deserve; mercy is giving people better than we think they deserve. Mercy doesn't say anything about the person receiving it; it says much about the person giving it.
Clarence Darrow said, "We have heard talk of 'justice.' Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves—whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can."
I agree with Darrow that we humans cannot know with certainty what a person deserves.
That being said, like "tough on crime," "mercy" doesn't have any place in the Court of Criminal Appeals. "Mercy" is a fact question; fact questions are for lower courts and for juries.
When we talk about justice being done, we are usually talking about substantive justice. But the business of the Texas Court of Criminal Appeals is procedural justice.
The Texas Court of Criminal Appeals is already stretching its competency deciding issues of procedural justice. It has no business trying to dole out substantive justice, nor concerning itself with mercy. That's not its job.
A judge should should recognize always that the decisions he makes have real effects on the real human beings appearing before him as well as momentous effects on the lives and liberty of others not immediately before him.
He should treat every person appearing before him with dignity and respect, and treat their problems and their arguments seriously.
But no judge—least of all an elected judge—should take himself seriously.
In seventeen years of practice I have had two grievances filed against me, not by clients but by clients' family members disputing my fees. I also had a grievance filed against me by a dishonest legal-marketing salesperson whom I had criticized publicly on my blog.
All three grievances were dismissed as unfounded in the investigative phase.
The quality of legal services provided indigent defendants in Texas is spotty at best. But so is the quality of legal services provided to those who can afford to retain counsel—especially the working poor, who can afford some representation but not the best.
I would seek to address both problems by pressing for higher minimum standards of effective representation, in other words, by raising the bar.
You will notice that I keep coming back to the notion of raising standards of representation. That's because everything else—every other protection provided to the accused by the United States Constitution or the Texas Constitution—depends on the accused having competent representation.
The history of civilization is a history of steadily increasing government power and decreasing individual freedom, often followed by revolution. Our revolutionary forebears gave us a Constitution and a Bill of Rights that they hoped would keep us free. The government seeks to destroy that Constitution and curtail that Bill of Rights to increase its power, and appellate courts (including the Court of Criminal Appeals) bend over backward to help.
The two-party system contributes to the loss of our liberty: voters from both major parties favor safety over liberty and keep returning Constitution-contemning incumbents to office.
That is why I chose to run as a Libertarian.
Judges should be neutral arbiters, not obligated to any interest or political party. I do not support our system of electing judges in partisan contests. It results in judges being chosen by party leadership or primary voters, often without regard to qualifications, and then elected by straight-ticket voters, again without regard to qualifications. (Contrast the generally high quality of the (appointed) federal judiciary with the widespread mediocrity of the state bench at all levels.)
I favor a move to a less-partisan system. An appointment-and-retention system like the Missouri Plan would be an improvement, as would strictly non-partisan elections.
Your premise is false. Texas lawyers do not have to swear to avoid the appearance of impropriety. Here is the Texas lawyers' oath:
"I______________________________________________________do solemnly swear that I will support the constitution of the United States, and of this State; that I will honestly demean myself in the practice of the law, and will discharge my duties to my clients to the best of my ability. So help me God."
Nevertheless judges should avoid the appearance of impropriety. The Canons of Judicial Conduct cover this: a judge shall not "allow any relationship to influence judicial conduct or judgment[;]…lend the prestige of judicial office to advance the private interests of the judge or others; nor…convey or permit others to convey the impression that they are in a special position to influence the judge." Even assuming that the judge and the contributors are acting in the best of faith, a judge "should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
When a judge accepts campaign contributions from lawyers who may appear before him, does it promote public confidence in the integrity and impartiality of the judiciary? Of course it does not. How could it?
Campaign Phone Number
Since the fall of 1976
J.D. Stevens High School, Edison, N.J. (1971)
University of North Carolina-Greensboro, B.A. in History (1975)
St. Mary’s University School of Law, J.D. (1979)
I have been an adjunct professor at St. Mary’s University School of Law for 8 years.
Teaching, numerous educational committees such as the American Academy of Forensic Sciences, and (former) member of St. Mary’s University Board of Trustees
No criminal proceedings other than as a (potential) witness
Civil – personal domestic
Chair – Grants Committee of the Court of Criminal Appeals for 9 years; administers $18-20 million per biennium for the purpose of providing continuing legal education to the criminal justice system
Chair and Founder – Texas Criminal Justice Integrity Unit
Carlos Cadena, former Chief of the Fourth Court of Appeals. He was highly intelligent, innovative, always fair and respectful, and a mentor to most attorneys who practiced before him.
I look at this situation in a different light. If anyone thinks for a minute that there are not innocent people in their prisons, they are mistaken. Texas is paying attention and has done much to address weaknesses. We have many training programs, innocence clinics, the (past) Tim Cole Advisory Panel, the passage of eyewitness identification reform, the Texas Criminal Justice Advisory Council, and the Forensic Science Commission, to name a few.
That is the responsibility of the Texas Legislature – as judges we take an oath to follow the law.
No. We are a procedural court. Thus, most “tough” decisions are made at different trial and appellate court levels and by their juries.
It distresses me greatly to be asked to comment about matters involving a colleague. I respectfully decline.
This is the responsibility of the trier of fact. I believe justice and mercy work together.
A judge should always be courteous and respectful of all parties, open-minded, impartial, and fair.
It depends on the type of case and the difficulty of the issues presented. The Court is current.
This question is unclear. Are you asking when was I personally reversed or when we (as a Court) have reversed?
Not to my knowledge.
Not to my knowledge.
Since the creation of the Task Force on Indigent Defense (now the Texas Indigent Defense Commission) and the passage of the Fair Defense Act, much improvement has been demonstrated.
I am a Republican and strongly believe in the core values of our party.
The citizens of Texas have demonstrated a continuing desire to vote for their officials.
Asking anyone for contributions is distasteful but necessary. The attorneys who have given me money have rarely appeared before our Court. However, I am confident that I have the ability to be fair and impartial.