But, Hey, it’s Just Light Yellow.

Shortly after Nutt was arrested, State District Judge Kevin Fine reduced his bail from $200,000 to $20,000 without notifying prosecutors, a move that some legal experts said could result in possible discipline for violating judicial ethics.

(Chron.com.)

Okay. What experts? Here’s the lede from the Chronicle’s article form the 18th on the lowering of Deputy Nutt’s bail:

A Houston judge faces possible discipline for violating judicial ethics by reducing the bail of a recently arrested sheriff’s deputy without notifying prosecutors, legal experts said.

Okay. What experts?

James Alfini, a South Texas College of Law professor who writes on judicial ethics, said prosecutors represent the community, as well as victims, during criminal cases.
“The people have an interest in being present when the judge considers a reduction in a bond, particularly a significant reduction like that,” Alfini said. “The judge needs to notify all the parties and give them an opportunity to respond.”
Alfini was not familiar with Nutt’s case and spoke about the rules generally.

Any law-school graduate (like the author of the article) should immediately recognize this telltale of lawprof Alfini’s want of actual legal-ethics knowledge: prosecutors don’t represent victims during criminal cases. (Also, in Texas we don’t call the State “the people.”) Even phony expert Alfini (what, you couldn’t find someone familiar with Nutt’s case to go on the record, Chronicle?) isn’t saying that Judge Fine faces possible discipline.

So. What experts? The only other person quoted as an expert in the article is HCCLA president Nicole DeBorde:

Nicole DeBorde, president of the Harris County Criminal Lawyers Association, said the informal nature of the daily grind in Houston’s criminal courthouse may have made it seem like business as usual.
However, she said, judges do have to follow the procedures.
“The right thing to do, certainly, would be to not discuss anything like that ex parte or not to make a decision without both parties being present,” DeBorde said.

So, again, Houston Chronicle, WHAT EXPERTS say that lowering Deputy Nutt’s bond could result in possible discipline?

Whatever legal geniuses in the DA’s Office brought this story to the Chronicle’s attention weren’t confident enough in their analysis (which was wrong—we’ll get to that in a second) to go on the record; has the internet-age abandonment of ethos in favor of anonymity so infected the legacy media that some anonymous prosecutor bitching about a judge becomes “some legal experts”? Are you yourself, law-school-educated Chronicle writer, “some legal experts,” injecting your (erroneous) legal opinions into your reportage? Or are you just assuming that some legal experts can be found to say whatever you want them to?

Here’s my opinion:

Texas law requires that bail be reasonable, and not used as an instrument of oppression. Bail that is unreasonable is unlawful. A judge faced with an unlawful bail can treat a motion to reduce bail as a writ of habeas corpus and immediately lower the bond to something legal. Indeed, he can do so without any motion being made. As a general rule, there is nothing improper about a judge reducing a defendant’s bail ex parte.

There is something wrong with a judge raising a defendant’s bail at the State’s request without giving the defense an opportunity to be heard, but Harris County’s old-guard Republican judges (and Ruben-Guerrero Democrats) routinely raise defendants’ bail ex parte at the request of their cronies in the DA’s Office all the time; Harris County Judges also deny defendants bail in clear violation of the Texas Constitution. That—inarguable violations of the Texas Constitution—is a real story, but don’t hold your breath waiting for the Chronicle to write about either of these practices, which “could result in possible discipline” for the judges and the prosecutors involved (aside: but go ahead, puling anonymous prosecutors: file a complaint againat Judge Fine; please open those floodgates).

So the general rule is that a judge has legal authority to lower bail ex parte. What about this?:

But legal experts said the law requires Fine to notify prosecutors before reducing the bail because the deputy, Richard Bryan Nutt Jr., 43, is accused of having a gun when Houston narcotics officers arrested him Wednesday. Nutt also allegedly had 2 kilograms of cocaine.
The state’s code of criminal procedure states that in cases where a deadly weapon was used or exhibited during the commission of a felony, prosecutors must be given “reasonable notice” of a bail reduction and an opportunity for a hearing.

Again, WHAT EXPERTS?

Article 17.091 of the Texas Code of Criminal Procedure requires that the judge notify the State before lowering bail “for a defendant charged with an offense listed in Section 3g, Article 42.12.”

3g is the section of the Texas probation statute that bars the judge from giving straight probation (without a jury’s recommendation) in certain circumstances. It lists the following offenses:

  • Murder;
  • Capital murder;
  • Indecency with a child;
  • Aggravated kidnapping;
  • Aggravated sexual assault;
  • Aggravated robbery; and
  • Sexual assault.

It also bars judges from giving straight probation without a jury’s recommendation if it is shown that the offense was committed in a drug-free zone and the defendant had an earlier drug-free zone conviction; or if it is shown that the defendant used or exhibited a deadly weapon in the commission of or flight from a felony.

Richard Nutt Complaint

Deputy Nutt is charged with possession of more than 400 grams of cocaine with intent to deliver; the State has allleged that he used or exhibited a deadly weapon during the course of the offense. So doesn’t that mean that Judge Fine had to notify the State before lowering Nutt’s bail?

Arugably, yes. On the one hand, possession of more than 400 grams of cocaine with intent to deliver is not “an offense listed” in 3g. On the other hand, a felony with a deadly-weapon finding is covered by 3g. On the other hand, there’s no deadly-weapon finding yet in Nutt’s case. (Legal reasoning requires many hands.)

So maybe Judge Fine erred; maybe he didn’t. Maybe someday a higher court will, interpreting 17.091, say that Mr. Nutt is charged with “an offense listed” in 3g. And here’s the thing: judges aren’t subject to discipline for interpreting arguable statutes incorrectly. Even if some whiny ADA were to grow a backbone, put his money where his mouth is, and go public with this specious complaint of misconduct, Kevin Fine’s conduct could “result in possible discipline for violating judicial ethics” only in the sense that the Chronicle’s writers could be bastinadoed for committing lousy journalism.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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3 Responses to But, Hey, it’s Just Light Yellow.

  1. lewis kennedy says:

    Most legal scholars don’t have a proper grasp of professional ethics – because they’ve never been anywhere near a courthouse.

    So they don’t always understand how things quite work in court. They don’t appreciate the importance of such concepts as judicial mood in case determination. Indeed, many will reject the presumption of innocence for sex offenders. [They think defence lawyers should somehow represent such clients from a feminist perspective.] They truly believe that factually guilty clients should be sold out even if the state can’t make its case. [Many judges will concur.] Those who do not are perceived to be amoral spivs. Whereas true professionalism actually demands rigorous or even zealous advocacy.

    Meanwhile, the academic code of ethics matters little to practitioners – for whom plagiarism is positively encouraged. We steal what is good: styles; one-liners.

    I doubt if the cited expert actually holds a professorship in judicial or professional ethics. Distant authorship of a tangential paper would scarcely vouch credentials as a suitably qualified expert witness on judicial ethics. Maybe only a judge can do that – or professionals who scrutinise judicial conduct everyday. In contrast, a ‘mere’ academic will rarely be qualified to mouth off with any real authority.

    In this context, his expertise may well be bogus.

  2. Is it too much to expect any so-called “judicial ethics expert” to actually refer to the applicable rules of judicial ethics? As you point out, “[a]s a general rule, there is nothing improper about a judge reducing a defendant’s bail ex parte.”

    Texas Code of Judicial Conduct, CANON 3- Performing the Duties of Judicial Office Impartially and Diligently-Section B. Adjudicative Responsibilities, sub-section (8)(e) reads:

    “(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge’s direction and control.This subsection does not prohibit:

    (e) considering an ex parte communication expressly authorized by law.”

    Since Texas Code of Criminal Procedure – Article 11.16 allows for an ex parte writ of habeas corpus, it, therefore, must mean it is “expressly authorized by law”:

    The Houston Chronicle should have called you first, but then there wouldn’t be a story.

    • Mark Bennett says:

      Actually, it’s worse than that: they talked with a lawyer who knows more about legal and judicial ethics than any lawprof in America, and then didn’t print anything he said. Why? I can only guess: because it wouldn’t sell any papers.

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