Category Archives: legal news

Time of My Life, Part 28: Probing a judge’s temperament

I had been on the job for about a year in 1978 when I got an assignment that got my juices flowing. I worked as a general assignment reporter for the Oregon City (Ore.) Enterprise-Courier.

Then my editor handed me a task. He had heard reports about a Clackamas County district judge that he thought needed attention.

The judge, Robert Mulvey, had been accused by lawyers who appeared in his court of lacking proper “judicial temperament,” which means that he was overly harsh on lawyers, witnesses, jurors and anyone he happened to encounter in the courthouse.

This would be my first investigative assignment for the newspaper. I began talking to defense counsel, prosecutors, courthouse staffers, sheriff’s deputies, fellow elected officials. They all said essentially the same thing: Judge Mulvey was a tough customer.

Indeed, I later found out that lawyers had filed complaints with the Oregon judicial conduct commission, which was empowered to hand down assorted forms of discipline or punishment to judges or lawyers about whom it received complaints.

I was able to talk to some of the legal eagles who had filed complaints against Mulvey.

I compiled a lot of evidence that the concerns that came across my editor’s desk had merit.

Then came the tough part: I had to speak to Judge Mulvey himself to get his side of the story. Fairness required me to do so. I did.

It was fascinating to me then — and it is now as I look back more than 40 years later — that Mulvey was so willing to talk about the accusations that his legal peers had leveled against him. He was a complete gentleman. He answered my questions directly. I don’t recall him denying any of the allegations that others had provided. He did explain himself fully.

I put the story together. It was a highly critical account of the way the judge adjudicated legal matters in the courtroom. It provided a stern look at his conduct and how poorly he treated those who stood and sat before him.

Judge Mulvey took it like a man.

Then came the clincher. Not long after the story saw print, Robert Mulvey died. Then the editor who assigned me to write the temperament story said I needed to call the judge’s wife to get a comment or two about her newly departed husband for a “news obituary” we published about the judge’s death.

My gut churned. I was nervous beyond belief. I called her. Told her my name and why I wanted to talk to her.

Mrs. Mulvey could not possibly have been nicer or more generous with her time.

It was, all in all, an amazing conclusion to an equally amazing task I had performed.

No need to mess with SCOTUS numbers

I’ll be clear right up front.

Leave the U.S. Supreme Court numerical composition alone!

Some of the Democratic candidates for president of the United States are declaring their discomfort with the fact that the SCOTUS comprises nine justices. They express openness to increasing the number of justices sitting on the nation’s highest court.

Why? Because they dislike the assault on the court mounted by Senate Republicans, notably the refusal by the GOP majority in the Senate to give a Barack Obama nominee a hearing after the death of conservative Justice Antonin Scalia in 2016.

Let’s hold on a minute. Catch our breath. Take a moment or two to think about this.

The SCOTUS has operated for better or worse with nine justices since the founding of the Republic in 1789. The Constitution empowers the president to nominate individuals to serve on the court; it also empowers the Senate to confirm those nominees.

The court as well as the presidency are subject to the ebb and flow of the political tides. Am I happy with the way the Senate stiffed President Obama in 2016 when he nominated Merrick Garland to succeed Justice Scalia? No. I am not! The Senate GOP leadership exercised its political power brazenly and recklessly by denying the president a chance to nominate a highly qualified jurist to sit on the Supreme Court.

But . . . that’s what the Constitution allows!

We all understand that “elections have consequences.” We’re going to conduct a presidential election in 2020. Voters have the chance in November of next year to fundamentally shift the balance of power at the very top of the political chain of command.

I am going to argue that’s the way you bring change to the Supreme Court, not by monkeying around with the number of justices who sit on that bench.

The court and the presidency have survived for as long as there has been a United States of America. So, too, has the nation.

Call me a judicial stick-in-the-mud if you wish. There is no need to overreact.

Re-read your oath, Your Honor

A Texas state district judge needs to take another look at the oath he took when he became a judge way down yonder in Comal County.

On Jan. 12, 2018, Judge Jack Robison ordered a trial jury that had voted to convict a woman of sex trafficking and the sale and purchae of a child to reconsider its verdict. He said God had told him the woman was innocent and that her conviction would be a “miscarriage of justice.”

The Texas Commission on Judicial Conduct has issued a public warning to the judge. A public punishment is deemed more severe than a private one, as it puts the sanction against a jurist on the public record.

The jury, by the way, did not acquit the woman; it still found her guilty of the crime and sentenced her to 25 years in prison. An appeals court, though, declared a mistrial stemming from the judge’s outburst.

Why re-read the oath? Because the only time the judge even says the word “God” is at the very end when he or she says “so help me God.” Judges take an oath to uphold state and federal law and to be faithful not to God but to the  U.S. Constitution.

Judge Robison blamed his outburst a year ago on a memory lapse related to some medication he was taking. And to his credit, he did report himself to the judicial conduct commission.

Still, it would be instructive for this judge — as well as all other jurists — to understand fully what their solemn oath entails. They pledge to be faithful to laws written by fellow fallible human beings.

Whatever devotion these judges feel toward the Almighty needs to be kept private.

Time of My Life, Part 24: Some fights are worth having

My career in print journalism, while providing me with unforgettable experiences and much joy, also provided some angst, heartburn and at times a touch of dread.

Now and again I would encounter situations that compelled me to look more deeply into the affairs of public officials I respected. Such was the case about 30 years ago while I worked as editorial page editor for the Beaumont Enterprise in the Golden Triangle region of Texas.

I went to work one morning and while reading that day’s edition I came across a story about a Jefferson County Commissioners Court meeting. Near the end of the story, we reported that “In other business,” commissioners approved a contract involving the opening of a café in the courthouse that would be run by a state district judge, Larry Gist.

It caught my eye. I took it up with my boss, the executive editor, and inquired about looking further into that matter. It didn’t seem appropriate for a state official to be operating a private business inside a county courthouse.

I’ll give you the Cliff’s Notes version of what I learned.

Judge Gist had prepared a bid to operate the courthouse café with a friend and business partner of his. He communicated with the county auditor, a young man named Jerry Ware, about his interest in running the café. He used what he told me later was “facsimile” county stationery, meaning he paid for the letterhead that would go atop the documents he was submitting for the auditor to consider.

But he signed the documents, “Larry Gist, judge.”

Here is where it got real sticky. Ware was appointed to his office as auditor by the district judges. So he considered a bid by one of his employers, one of the individuals to whom he answered. State law, interestingly, does not require a county to accept the lowest bid on projects such as this; it gives the county discretion to determine the “best bid” offered.

So, Ware — who works for Larry Gist (among other judges) — selected Gist’s bid to operate the café on the ground floor of the Jefferson County Courthouse.

That seemed strange. I thought it smacked of conflict of interest. I talked with Judge Gist, asked him about the stationery and quizzed him about whether he put any undue pressure on the county auditor to look favorably on his bid. I talked to Jerry Ware, and asked him whether he might have been influenced by the facsimile letterhead and the signature that contained the word “judge” alongside the name of the individual who was bidding on the courthouse business.

We published an editorial that questioned whether the county was adhering to all the proper ethical standards by allowing the judge to bid on a project to be housed inside a courthouse where he worked and whether the auditor was applying objective standards to all the bidders who had sought the contract.

Quite obviously, Judge Gist and Jerry Ware were unhappy with the newspaper and with me. Ware hated my guts for the rest of his life. He died of cancer not too many years later.

As for Gist, I learned through other channels that he sought to sue me and the paper for libel. The only sticking point for Gist in his pursuit of a legal challenge was that nothing we published was untrue. As you might know, truth is the first and last line of defense in any libel lawsuit.

Judge Gist and I endured a frosty relationship for the rest of my time on the Gulf Coast. I am happy to say, though, that it thawed over time. I had occasion to talk to Judge Gist on another matter once I made the move from Beaumont to the Texas Panhandle.

I don’t know the status of the courthouse café. That was then. The here and now allows me to look back on that episode with just a touch of relief that it never got past the threat of a lawsuit.

Sen. Paxton exhibits a form of tone deafness

Texas state Sen. Angela Paxton — who was just elected in 2018 — is new in her job as a legislator. The McKinney Republican, though, should have thought better than to propose a bill for consideration that involves her husband, the state attorney general.

Why is that? Attorney General Ken Paxton is awaiting trial on a securities fraud allegation. Sen. Paxton, though, has proposed Senate Bill 860, which broadens the AG’s regulatory power over those who market financial services. You see, AG Paxton is accused of failing to report his own involvement as a securities adviser to potential clients.

Therefore, I intend to accuse Sen. Paxton of being tone deaf.

She is one of 19 Republicans serving in the Texas Senate. I would doubt seriously any of the dozen Democrats who serve with her would buy into what she wants to do, so we’ll look briefly at her GOP colleagues.

It seems odd that the spouse of a statewide elected official who is set to stand trial for securities fraud would propose legislation that affects the official who’s about to become a defendant in a court trial.

They talk about whether legislation passes the “smell test.” This one doesn’t, at least not my olfactory glands.

Couldn’t the rookie Texas senator find a GOP colleague among the 18 of them who serve with her to carry this legislation forward?

AG might get new power

Don’t misunderstand me. I don’t necessarily endorse SB 860. It expands the power of the attorney general and seems to remove a level of transparency that should be required when it involves securities and financial regulation.

It’s just that Sen. Paxton carrying a bill that has a direct impact her husband, who’s facing potential prison time if he’s convicted of securities fraud, is a stinker.

Ethics watchdogs seem to believe it stinks, too. I’m on their side.

Mueller probe coming to an end? Let the public see its results

U.S. Attorney General William Barr reportedly is set to announce the end of special counsel Robert Mueller’s investigation into alleged “collusion” between Donald Trump’s presidential campaign and Russian operatives who attacked our 2016 electoral system.

He might do so next week, according to CNN.

Well now. I hope the reports from CNN are correct. I want this probe to end. I am weary of it. And I haven’t lifted a finger to aid in it, although I’ve lifted plenty of fingers commenting on it.

Transparency matters a lot

The future of Donald Trump’s tenure as president hangs in the balance. If Robert Mueller has come up empty, we’ve got Trump for at least until January 2021. If, however, he has something else — such as the goods on the president — then all bets are off.

Barr reportedly has said he intends to be a transparent as the law allows. He supposedly is getting set to prepare a final report for Congress.

Here’s my fondest wish: Let the public see as much as possible. I understand the need to protect national security secrets. That is all we should protect.

I want to reiterate that this is a publicly funded exercise. Mueller has spent a lot of public money poring through mountains of evidence into Trump’s conduct as a candidate for president and as president of the United States. That’s our money. Yours and mine.

Thus, the contents of this report belong to us.

I am prepared fully to accept whatever Mueller concludes. Yes, even if it exonerates the president of any wrongdoing. I trust Mueller — a former FBI director, a former Marine, a Vietnam War combat veteran — to do a thorough job.

However, I do not want the results hidden in a vault somewhere. It’s ours to review and to determine what — if anything — we need to do about the president of the United States.

AG Barr now must make good on pledge

U.S. Attorney General William Barr has the potential to emerge as one of the few grownups to serve in the presidential administration of Donald J. Trump.

The Senate confirmed him this week with a 54-45 vote, which I thought was much closer and more partisan than I expected. However, he’s now the head guy at the Justice Department.

AG Barr’s task now is to make good on the pledges he made to the Senate Judiciary Committee during his confirmation hearing.

Barr said he wouldn’t be bullied by the president of the United States; he said special counsel Robert Mueller will be allowed to finish his exhaustive probe into alleged collusion between the Trump campaign and Russian election attacks; he has expressed faith in Mueller’s integrity and professionalism.

I have faith that Barr will make good on his pledge. This isn’t his first DOJ rodeo. Barr served as attorney general from 1991 to 1992 during the George H.W. Bush administration. He is a top-notch lawyer. Yes, he’s a partisan, but we should expect that from any AG regardless of his or her party affiliation.

So, Mr. Attorney General, I implore you to be faithful to your sworn statements in front of the entire nation, if not the world.

Can El Chapo face a murder rap?

Joaquin “El Chapo” Guzman has been convicted of 10 drug-related felonies. The man is heading for a life in prison.

I have this thought I want to share.

The miserable drug lord is one of the world’s most notorious criminals, responsible for untold misery and mayhem. He’ll likely never breath freely ever again.

But I’m wondering: Do U.S. federal statutes allow for a trial and potential conviction on murder charges if it can be proven that anyone who consumed drugs provided by El Chapo’s network died from that consumption? Can there be a case made that El Chapo’s drug-running activity contributed directly to anyone’s death and for that can he stand trial on murder charges?

Just wondering out loud, man.

Well, goodbye El Chapo. Here’s to a life in hell on Earth and to an eternity in the actual hell.

Why not fill high court seat with another West Texan?

I know what governors say when they make appointments to the Texas court system: They’re picking the “most qualified” jurist they can find.

Gov. Greg Abbott has a vacancy to fill on the Texas Supreme Court. It’s the seat vacated by former Justice Phil Johnson, who retired at the end of 2018. Justice Johnson came to the highest state civil appellate court from Amarillo, where he served as chief justice of the 7th Court of Appeals.

I am proud to declare that prior to Johnson’s appointment, I used the Amarillo Globe-News editorial page as a forum to call on then-Gov. Rick Perry to select someone from west of the Interstate 35/45 corridor. West Texas had plenty of qualified judges to serve on the state Supreme Court, so it made sense to select someone from, say, the Panhandle to sit on the state’s highest civil court. And, yes, I was aware that Phil Johnson had sought the job.

Texas doesn’t apportion seats on either the Supreme Court or the Court of Criminal Appeals to provide any form of geographic balance. I understand that all nine justices and judges on each court represents the entire state.

However . . .

Why not look a little more closely out west when looking for a replacement for Justice Johnson?

I am acquainted with Justice Johnson, who was elected and then re-elected to his seat on the Supreme Court. I don’t believe he would endorse the notion of apportioning these seats geographically. Although, I was given an interesting bit of intelligence from a former colleague of Johnson’s on the 7th Court of Appeals.

The late Don Reavis, who hailed from Perryton, once told me he was the 7th court’s token “rural” judge, meaning that he was selected because the appeals court was intended to have some representation among its members from the rural regions in the vast territory the court served. It wasn’t written anywhere, Reavis said, but it was just done that way out of a form of custom.

Is the Texas Supreme Court above such a custom when a vacancy occurs? I wouldn’t think so. Then again, it’s the governor’s call to make. Choose wisely, Gov. Abbott.

Planning to keep the heat on chief justice for election reform

I am going to insist that Texas Supreme Court Chief Justice Nathan Hecht keep the pressure on the Texas Legislature to move toward a fundamental change in the way we elect our judges.

He wants to make the office a non-partisan one. He dislikes the idea of electing judges as Republicans or Democrats. He says he favors a merit selection system in which judges can stand for “retention” at the ballot box.

It is music to my ears. I’ve been yammering about this kind of reform for as long as I have lived in Texas; that dates back nearly 35 years.

I applaud Chief Justice Hecht for repeating his call for judicial election reform. He has raised this issue before. I hope he keeps the heat turned up.

Hecht, of course, is motivated largely because so many of his fellow Republican judges got drummed out of office in the 2018 midterm election. They lost because of the surge of enthusiasm among Texas Democrats. I am not one bit concerned about his reason for reiterating his demand for change in the electoral system. He and I are on the same page.

I want the Legislature to listen carefully to the state’s chief justice and act on his request.