Tough On Crime Should Not Be a Judicial Temperament

America is a Country of ideas.

Obviously, not all of us share the same ideas or the same ideals. It’s okay, though. Our antecedents have been negotiating the inherent tension that exists between those who see the world through different eyes since the founding of this great Republic. We might not always agree, but we can try to work something out. The two-party political system in this Country is but one example that reflects that simple truism.

Most politicians run on a platform; sadly, not literally. Instead, their platform is represented by the ideas they believe will benefit whatever constituency they are trying to woo. Often, what creates tension in a polity is the reality outlined above—not everyone is going to agree on which ideas are best or should be or can be implemented. In Texas, state judicial races are among those still decided as part of the political process.

In my opinion, it is hard to imagine a more asinine method for selecting the most appropriate stewards of the law than judicial elections.

As a baseline, I would argue that the essence of any “idea” is its ability to be opposed. In my opinion, if an “idea” is not one subject to opposition, it isn’t really an “idea” at all—it’s just reality.

In reality, no society can persist without the rule of law.

Different societies have different rules. Regardless, without, at least, some variant of the rule of law, any society would quickly unravel. The reason for that is simple: society is nothing more complex than the association of people from disparate backgrounds. Without a line in the sand—the rule of law—there is no reason for people of one tribe or house to expect they will be treated the same or similarly as those of another tribe or house. If that be the case, there is no reason for them to work together or in harmony. The predictable result of a society without trust is anarchy.

That’s why I’ve never been particularly baffled by periodic street riots. They’re the emblematic manifestation of a lack of societal trust. The inability of those engaged in the mayhem to articulate their motives with purposeful clarity does nothing to undermine my opinion. Put simply: a society without uniformity and trust is a society without boundaries or inhibitions.

In the context of judicial elections, the problem with politicizing those selections is it inherently undermines the ability of the victors to apply the law uniformly, once the race is run and the work begins.

So-called “Tough on Crime” campaigns are a perfect illustration of the problem. Thanks to political innuendo and stump speeches, the notion that certain citizens want their judges to be “tough on crime” has become a recognized political talking point.

The problem is “tough on crime” isn’t an idea, at all.

Now, this isn’t the place I go off the rail on some leftist political rant. I’m not particularly liberal. Innately, I don’t trust zealots or politicians. I’m not especially conservative, either. Instead, I’m merely a defense lawyer who believes he understands the justice system a little better than the average citizen; and one who understands how ridiculous and intellectually insulting it is to suggest that “tough on crime” is in any way a political statement appropriate for a state judicial race.

It’s not.

It’s a political expedient that forsakes the very purpose of our system of justice and the document that was drafted to guide it.

The Executive and Legislative branches of our State and Federal governments are responsible for proposing and passing legislation that includes the penal law. If you want your politicians running for those offices to be “tough on crime,” by all means vote for them.

But, the justice system isn’t a place for politics.

Judges were meant to be arbiters; neutral and detached. They’re stewards and interpreters. They shouldn’t be politicians.

Judges are not responsible for drafting the laws that are enforced in their courtrooms. So, “tough on crime” has no association with criminalizing conduct. Instead, a “tough on crime” judge can only impose that kind of partisanship in a limited number of instances. The two most prevalent instances that occur to me are:

  1. Evidentiary rulings; and,


In practice, judges are routinely asked to decide whether certain evidence is admissible or inadmissible, whether certain questions are proper or improper, or whether certain facts violate a citizen’s rights.

When asked to decide any of the above issues, a “tough on crime” judge ought to be rightfully expected to interpret the facts presented in a manner that inures to the benefit of law enforcement—to be tough on crime. Unfortunately, logic and the composition of our Republic are in fatal conflict with that notion.

First, every citizen accused of a criminal offense is presumed to be innocent. It’s not just me saying that and it’s not just a good idea—it’s the law. The presumption of innocence is one of the pillars in the law that brings balance to the system. In other words, it’s what prevents tyranny and dictatorship.

A neutral and detached arbiter is another of those pillars.

Law enforcement is responsible for enforcing the laws of the land and ferreting out crime. The criminally accused are those being sorted and weighed for prison orange and separation from society. Obviously, there exists an inherent conflict between the two parties. Notwithstanding the fact that a vote for a “tough on crime” judge encapsulates a tacit request that they ignore the presumption of innocence, it’s basically like having the manager of one baseball team stand behind the plate to call balls and strikes for both. In a justice system like that, I find it hard to see the point in even having judges. In any event, that’s not how our Founding Fathers thought the ledger should balance.

Second, “tough on crime” judges erode the foundation of our system of justice; leaving behind merely the appearance—the farce—that justice prevails. The reason for that is simple: the decisions made by “tough on crime” judges can nearly-always be expected to fall on the side of law enforcement. Why? They want to be re-elected (that’s the big difference between federal appointments and state elections—federal appointments are for life). Thus, legal arguments founded on constitutional principles are relegated to mere fait accompli. That’s not justice. That’s intellectually insulting. Insulting the criminally accused with notions of justice—rather than actual justice—does not promote societal trust.

Third, “tough on crime” judges are slowly eroding the rights afforded to each of us in the Bill of Rights. In Constitutional law, there is something referred to as a “glossing over” effect. In other words, if judges and courts apply the law in a manner that is contrary to what is actually embodied in a statute long enough, the effect can be a permanent change in judicial interpretation. In other words, bad decisions can eventually change the law. So, if no set of facts ever rises to a level that violates the rights of an accused guaranteed by the Fourth Amendment to the United States Constitution, eventually, no one will enjoy those protections. Ultimately, the simple truth is bad decisions may eventually hurt more than just those presumptively deemed “bad” on the basis of an allegation or criminal complaint.

Fourth, “tough on crime” judges encourage the other side to cheat. There are laws in place that protect citizens accused from what is often referred to as “over-zealous prosecution.” That’s a euphemism for cheating. But, a mischievous prosecutor standing before a “tough on crime” judge has little to fear when their mischief is uncovered. Why? Because the legal remedy does not inure to the benefit of law enforcement.

Fifth, “tough on crime” judges promote systemic incompetence. Generally, I would submit that most of us were raised in homes or on playing fields where our performance was constantly critiqued. I know I was. I believe that process has helped me to become a better man. If nothing else, it assured me—at an early age—I’m not perfect and am prone to making mistakes. I don’t think that’s a signal of my nefariousness or depravity. I think it’s a signal of my humanity. But, somehow, it seems a belief has crept into the justice system that suggests critiquing law enforcement is tantamount to treason. In appellate law, there is a preference for the finality of judgments. The basic argument is that the reversal of one case could trigger an endless succession of lawsuits asserting similar claims. To avoid that, reviewing judges and courts affirmatively search for reasons to pour the claims of litigants out. In addition to being morally offensive in the context of the criminal law and the Constitution, that kind of thinking is just plain stupid. Judges that bend their interpretation of the law to suit the ends of law enforcement send a message to law enforcement that they’re “doing it right.” That, quite simply, isn’t always the case. No one learns from a “pat on the head.” And, to bang on the same societal drum, a uniform and predetermined stance that law enforcement is always right does nothing to promote societal trust.

Our courtrooms aren’t retail shopping malls, and law enforcement isn’t always right.

A judge with the intestinal fortitude to follow the law—even to the detriment of law enforcement—is one who embraces a “teaching moment.” Prosecutors will have a better understanding of what will or will not pass Constitutional muster in the courts in which they practice. That understanding will inform the decisions made as to whether a particular investigation supports prosecution. To avoid professional embarrassment and a refusal to prosecute, law enforcement will conform its conduct to suit the law. One goal this approach would accomplish is to reinforce constitutional principles. Another thing it would do is inform those responsible for enforcing the law that there are boundaries separating the rights of law enforcement and the rights of the citizen accused. Respecting those boundaries promotes the trust that seems to be missing from society at-large, today.

I don’t want my judges to be “tough on crime.”

I want my judges to be “correct on crime.”

As a defense lawyer, I don’t think I should win every argument. But, I do think I should win every argument that is based on a correct interpretation of the law.

If “tough” means anything other than “correct,” I believe it’s unconstitutional. And I do not trust the political process enough to make such fine distinctions.

It is long-past time to remove partisanship from the bench.

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.