Pressure builds on judge to step down

Well, what do you know, Christopher Dupuy is back in the news.

If you don't know, Mr. Dupuy is the judge in County Court at Law No. 3 in Galveston County. At the time he was running for the bench the State Bar had placed him on probation for violating ethics rules. The seat he ran for was held by the judge in the divorce case filed by his now ex-wife. His platform was a bizarre assortment of right-wing positions that would have made any wingnut proud. He sits on the bench because Galveston County voters in the north end of the county blindly selected the straight ticket option for the Republicans.

SUSPENSIONS On Oct. 9, 2009, Christopher Dupuy [#24003931], 38, of League City, accepted a six-month, fully probated suspension effective Oct. 9, 2009. An evidentiary panel of the District 5 Grievance Committee found that Dupuy’s professional websites contained statements that omitted facts necessary to make the statements considered as a whole not materially misleading. Also, Dupuy’s advertisement in a telephone directory did not conspicuously publish the name of at least one lawyer responsible for the content of such advertisement, and did not disclose the geographic location, by city or town, of Dupuy’s principal office. Dupuy failed to file the telephone directory advertisement with the State Bar Advertising Review Committee.

Dupuy violated Rules 7.02(a)(1) and (a) (2); 7.04(b), (c), and (j); and 7.07(b). He agreed to pay $2,500 in attorney’s fees and costs.

-- Texas Bar Journal, January 2010

If you've ever had the "pleasure" of practicing in Judge Dupuy's court you know what an interesting experience it is. I had a case in which the prosecutor and I submitted an agreed motion for new trial. When I handed him the motion, the judge looked at me and asked what he was supposed to do with it. I told him it was an agreed motion and that he should sign it. He took it under advisement and made up wait for 45 minutes while he went back in his chambers and did God knows what before returning to the bench.

In his latest misadventure, Mr. Dupuy was fined $7,500 by a judge for improperly trying to remove a judge who was hearing a malpractice case against him filed by a former client. The $7,500 fine is in addition to an $1,800 levy ordered against him for failing to appear at a deposition in that case. David Bryant, a Houston attorney handling the suit, told the Houston Chronicle he thought he'd have to attach Mr. Dupuy's bank account in order to get the money.

Dupuy is also under investigation by the Galveston County District Attorney's Office for allegedly lying about his residency on the application he filed to run for the bench.

The situation is so bad that the Galveston Daily News is calling for Dupuy to resign from the bench.

The man is not qualified to sit on the bench. The unethical manner in which he ran his practice. Sleeping with an attorney practicing in his court. Lying on his application to run for office. The unprofessional way in which he conducts business in his courtroom.

The folks in Galveston County who voted straight ticket Republican got exactly what they deserved.

Transcript of DuPuy hearing

A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

Mr. Bluebird on my shoulder

A little birdie mentioned that a certain judge in Galveston County may be getting a particularly nasty Christmas present this year.

Pardon me, that order must be mistaken

The language seems deceptively clear.

On this day the above numbered and entitled cause was called for pretrial hearing. The defendant, defendant's attorney and the Assistant District Attorney representing the State appeared. The Court hereby orders that the State produce and permit the inspection of, or the copying and/or photographing of the following items: 

13. All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt or innocence of the Defendant or the punishment, subsequent to the witness testifying.

That would appear to mean that the defense is entitled to any and all written statements from a witness once that witness has given testimony under direct examination. Furthermore, it would appear that the order refers to anyone called to the stand by the prosecution.

Oh, but that would be wrong.

For, you see, that provision apparently is meant to be read:

All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt of innocence of the Defendant or the punishment, subsequent to the witness testifying, if, and only if, the Defendant makes a specific request for the written statements of a specific witness.

I mean, we can't possibly expect the prosecutor to hand over all written statements without the defense attorney having to jump through a plethora of procedural hoops, can we? And God knows we can't have a judge that gives the impression that he is serious about a defendant being entitled to due process. How on earth is that going to play at election time?

If the court isn't going to enforce its own discovery order, who is?

Standard discovery order - 56th

The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

Galveston looks to eliminate pretrial services

Galveston County is in a mood to cut their operating budget and one of the biggest targets is the Pretrial Release Agency. The PRA serves two primary functions: they monitor defendants who have interlock devices installed on their cars and they acts as a low cost bonding agency for jailed defendants who qualify for their services.

Members of Commissioner's Court view the agency solely in terms of the latter - a subsidized competitor to the private bonding companies doing business in Galveston. Due to the severe poverty in the county (which county officials would rather ignore), there are plenty of people being held in the Galveston County Jail because they cannot afford to post a bond.

These folks turn up on the daily afternoon misdemeanor jail docket. The county has already reduced the number of jail docket attorneys from three to two in an effort to save $57,000 a year in attorney fees. If the PRA is eliminated, the number of inmates appearing on the jail docket will increase which will create a need to put a third attorney back on the docket - or putting added pressure on the jail docket attorneys to plead their clients out.

All of us who work within the criminal (in)justice system know that it's a whole lot easier to fight a case when your client is able to work and sleep in his or her own bed. As long as a defendant is locked up, the pressure to plead out increases. When you're sleeping behind bars, the siren song of "time served and a fine" sounds a whole lot nicer than litigating a suppression motion.

According to Ms. Bonita Quiroga, the director of the Office of Justice Administration, eliminating the agency will result in all of two people being laid off -- hardly a savings bonanza. Elimination of the agency would also put the Galveston County Sheriff's Office in charge of issuing personal bonds for defendants who qualify for them.

Of course the private bonding companies want to see PRA go away. They look at the number of folks who walk out of the county jail through pretrial release and see dollar signs. The problem is, if these folks could have afforded to post a bond, they would have.

Quiroga.ltr.Pretrial.release

Judicial activism mucking up the works

As a general rule, judges in Texas stay out of plea negotiations and allow the attorneys for the state and the defense to work out cases as they see fit. In Galveston County, for instance, it was not uncommon for a person charged with a first DWI offense to receive an offer to plead guilty to obstruction of a highway on a typical "no test/no accident" case.

The plea deal allowed the prosecutor to clear a case off his docket and the defense attorney to look good to his client. There were, of course, variations of the deal. I once had a client who blew a .24 but could walk a straight line on video and hold an intelligent conversation with the arresting officers. The prosecutor offered my client probation on obstruction of a highway with the same conditions that would attach to a DWI probation. My client was quite happy with the deal and everyone walked away happy.

Harris County, on the other hand, believes that DWI cases should either be tried or dismissed. There are no plea offers for obstruction or reckless driving. As a result, more marginal DWI cases are tried in Harris County than on the island. There are also far more dismissed on the eve of trial.

Back in November the Republicans swept the county court benches in Galveston County. One of the judges, John Grady is a former probation officer, defense attorney and Brazoria County prosecutor. The other two judges, Barbara Roberts and Chris DuPuy both had little or no criminal experience at the time they took the bench. Of course, unlike Harris County, the county courts in Galveston handle both criminal and civil matters.

But now comes word that Judge Roberts has taken it upon herself to play sheriff when it comes to the prosecution of DWI cases in her court. It is now the policy of County Court No. 2 that no pleas to obstruction of a highway will be accepted on cases filed as DWIs.

Now I must digress a little bit. In Texas the offense of driving while intoxicated contains no lesser included offenses. In other words, there is nothing that  DWI charge can be "reduced" to - with the exception of prior DWI convictions being abandoned as part of the plea negotiations.

The proper role of a judge is to serve as a neutral arbiter to a legal dispute. The judge should allow the parties every opportunity to work the case out amongst themselves - be it a civil or criminal dispute. The only time the judge should be involved is if the parties come to an impasse and need someone to make a decision on which way to proceed.

There are any number of reasons a prosecutor might elect to offer a defendant in a DWI case the ability to plead to a different charge. A conviction for reckless driving or obstruction of a highway doesn't carry a $3,000 surcharge with it. A conviction for obstruction of a highway doesn't carry a license suspension, nor does it carry the same insurance consequences that a DWI conviction would. Maybe the case is marginal. Maybe the prosecutor is worried about the legality of the stop - or the roadside coordination exercises. Maybe the defendant's job is on the line if he's convicted of driving while intoxicated. Maybe no one wants to take a chance with six strangers in a box.

Whatever the case, the prosecutor and the defense attorney are in the best position to determine what the most optimal resolution of the case might be. The judge isn't privy to all the facts. The judge isn't privy to the circumstances surround the stop, the tests or the defendant.

A judge is under no obligation to accept a plea bargain -- and will tell the defendant so while admonishing him. But a judge who issues a blanket directive that certain pleas will not be accepted is not acting as a neutral arbiter. A judge who announces that no offer for less than 30 days in jail for a first DWI is not acting as a neutral arbiter.

Judges who act in such a manner are guilty of being doctrinaire. They are willfully blind to the reality that every case is different and a "one size only" policy doesn't work. But most of all, these judges are failing to uphold their duty to consider the entire range of punishment available for a given case.

Some of our jurists think they're the sheriff and some think they work for the judicial division of the local DA's office. Mostly they have forgotten that the courtroom over which they preside (temporarily) belongs to the people. And the people are the folks in the pews answering docket call every morning. The people are the ones entitled to trial by a jury of their peers.

The death machine keeps a-rollin' along

So Travis James Mullis will die. Mr. Mullis will be murdered by the State of Texas as the result of his conviction for stomping his 3-month-old to death along the Galveston seawall back in 2008.

But that won't bring back his 3-month-old son. It will satisfy our bloodlust and our need for revenge. It won't fill the holes in the lives of those involved. It will satisfy our desire to be seen as tough on crime. It won't change what happened that night. It will be notch on the belt of Jack Roady, the Galveston County District Attorney.

A jury found Mr. Mullis guilty of capital murder. There was no dispute that Mr. Mullis killed his son. The only issue was intent. Well, Mr. Mullis' videotaped confession to Philadelphia police made that a moot point as far as the jury was concerned.

Mr. Mullis was born into an unhealthy life. He was hospitalized for 71 days as an infant suffering from a disease that destroys the bowel. His mother was morbidly obese with a host of other medical conditions at the time of his birth. She died when he was 10 months old. Mr. Mullis was then adopted by his mother's half-brother.

As a child, Mr. Mullis was molested by his adoptive father until he reached the age of six. Mr. Mullis then turned to molesting young children while he was teenager. He was sent to the Jefferson School in Maryland (where he lived) until the age of 15 when he was discharged right about the same time the insurance benefits ran out.

None of this excuses what Mr. Mullis did on that January night over three years ago. It does make you wonder what was going on in his head that night, though.

In the end the State of Texas will murder a man -- but it won't change a thing.

Leading the lambs to slaughter

I was in County Court No. 2 in Galveston County this morning to file a motion and discuss a case with the prosecutor. Despite taking my time getting on the road, I managed to find my way into the courtroom at docket call.

And that's when it happened.

Something that was so jarring. Something that didn't sound right as soon as the words hit your ears.

A defendant answered the docket call. Judge Barbara Roberts (one of the new judges swept into office this past November) asked him if he had an attorney.

The gentleman said he did not.

"Would you like to speak to the DA?" came the question from the bench.

The man said he would. The judge asked him to come up front to see the clerk. When he got there the clerk handed him a waiver of rights

She never informed him that he had a right to counsel. She never informed him that if he couldn't afford an attorney he could petition the court for appointed counsel. She never informed him that the prosecutor did not represent him. She never informed him that anything he said to the prosecutor could be used against him.

In short, she failed to admonish him properly.

She failed to perform her job which is to sit as a neutral and impartial arbiter and to see that a criminal defendant's rights are not violated in her court.