Blurred Lines: Be The Judge or A Witness, But Not Both

ethicsAre ethical lines really that blurry? Apparently so for Kaycee Jones. In 2014, stemming from her work as a prosecutor, Jones was reprimanded by the State Bar in the wake of a 2012 texting scandal. She and then sitting Judge Coker exchanged text messages during a trial. The messages suggested certain questions the State should ask. Jones, who was observing the trial, scribbled out the questions and passed them to the prosecutor trying the case in front of Coker. For her role in the ex parte communications, Jones received a public reprimand.

Now a district court judge Kaycee Jones again faces scrutiny for crossing those blurred lines. Jones is the subject of a complaint to the Texas Commission on Judicial Conduct alleging a violation of one of the most simple rules: be the judge or be the witness but not both.

Jones was elected to the 411th District Court, serving San Jacinto, Trinity, and Polk counties. As judge, she presides over criminal, family, and civil matters and performs various other judicial duties. Like in many jurisdictions, judges are assigned as the on-call magistrate for law enforcement during “no refusal” weekends. The on-call magistrate makes the process of obtaining a search warrant for blood more efficient convenient as those arrested for DWI refuse to blow. After all, we wouldn’t want to slow the justice train by having to look for a neutral and detached magistrate who can review an affidavit.

During the “no refusal” weekend in which she was on-call anyway, Jones decided she would take advantage of the police ride-along program. Under the ride-along program, prosecutors, judges, and other citizens often ride with police officers on their beat to observe police interactions first hand. Other than an appearance of impropriety, generally, there is nothing wrong with prosecutors and judges participating in the ride-along. The appearance of impropriety (you know, being on the same law enforcement team and all) is generally believed to be overcome by the sheer fact that anyone could participate in the ride-along and non-prosecutors can and do participate in ride-alongs.

Outside of the appearance, the general problem is that the judge or prosecutor becomes a witness to every arrest made. And certainly the rules prohibit the judge or prosecutor from handling any matter in which he or she is a witness. With prosecutors, it might seem the entire firm would suffer the same conflict, but alas that appears to be too burdensome and so an unofficial exception has been carved out to allow the office to prosecute cases in which its members are witnesses and/or complainants, but I digress.

Now, back to Judge Jones. During her ride-along while on-call for “no refusal” weekend, a DPS trooper needed a blood warrant signed. Of course, Judge Jones was on-call for such matters. Never mind that she was also riding in the trooper’s car and had witnessed the arrest and any law enforcement interaction that would have led up to the request for the warrant. Being on-call and all, Jones reviewed the facts and signed the warrant.

Oh wait, did I mention the magistrate is supposed to be neutral and detached? Those pesky rules keep getting in the way. Magistrates are required to be neutral and detached. Neutral, in that she is not supposed to take one side over the other; she is neither part of the law enforcement team nor the prosecution team. Detached, in that she is not associated with the facts or matters she is reviewing.

And therein lies the problem. Jones was neither neutral nor detached. She was part of the law enforcement team that night. She was in the patrol car. She was participating in traffic stops and arrests, even if that participation was limited to observation. She was also personally aware of the facts and circumstances as she was a witness to the facts presented in the affidavit for the search warrant. And she went even one step further: she told the trooper not to list her as a witness in the paperwork.

So much for her 2013 statement to the Texas Bar promising her misconduct would never happen again:

I fully appreciate the importance of impartiality of a judge in a trial.

I suppose she meant she wouldn’t text again. It’s good she qualified she could appreciate impartiality in trial. And, here she clearly was not in trial – just gathering evidence with the police for a future trial. Seems impartiality is a bit of blur…

Lest you think this is just about judges, think again! Prosecutors suffer from the same quagmire: do they want to be witnesses or prosecutors? They too love the ride-along. They want to be “part of the team.” They also want to be involved from the beginning. In Harris County, the vehicular crimes division sends a prosecutor to every accident that results in a death. They are there to supervise the collection of evidence. They are, in large part, part of the team and witness to what happens at the scene. Not only are they witnessing what occurs, they sometimes direct what occurs, adding thoughts and decision making. This can and should cause them and their office to be recused.

Perhaps it is time to leave the policing to the police! Let lawyers be lawyers. Let judges be judges. And just let the police do their job. They really don’t need your help.