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.

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.