You Don’t Always Get What You Pay For

The business of the criminal courts never stops. When Harris County criminal-court judges want to take a day off, if they don't want to come back to a greater mess than they are leaving they have to get someone to sit in for them. If the time off is planned in advance (a vacation, say, or a judicial conference), a sitting judge can schedule fewer cases on the docket, and another elected judge can handle that business along with his own.

Back in the early years of this millennium, when the money flowed more freely from Austin, Harris County judges used visiting judges an average of 44 days a year. It was a sweet gig for the elected judges—an average of two months of vacation per year—and for the visiting judges, who made a little money—about $400 a day—and got a month of retirement credit for each month in which they sat. Then in 2003 the Legislature slashed the visiting-judge budget by two thirds, and judging became a little less fun.

We saw our elected judges on the bench a lot more. Which was nice, since they have some small measure of accountability to the Republican Party people of Harris County, and we could run out of office refuse to contribute to the campaigns of those who didn't treat people fairly and respectfully.

Still, sometimes a judge has to take some unplanned time off. And for those times, a judge needs a visiting judge.

Jim Anderson was the judge of Harris County Criminal Court at Law Number Four until 2010, when
I couldn't find a photo of Jim Anderson.he retired and the criminal-defense bar breathed a collective sigh of relief. Anderson's bias toward the government and his tendency to coach prosecutors and taint jury panels (so predictable that Houston criminal-defense lawyer Josh Schaffer wrote a motion in limine addressing twelve of Anderson's favorite ways to taint DWI jury panels in jury selection) in his court were only compounded by his hail-fellow-well-met friendliness. Did he not realize that while schmoozing us he was screwing our clients? Did he think we didn't realize it? Did he think we don't care?

When Jim Anderson retired, his stated intention was to go surf in Costa Rica; we wished him pura vida and cried nary a tear.

We hadn't seen the last of him, though. Anderson is now working as a visiting judge, and back to his old tricks. Last week he was presiding over a DWI case in Harris County Criminal Court at Law Fifteen; before the day of trial he coached the prosecutor (in the presence of the defense lawyer, DWI badass Jim Medley) on how to get certain facts into evidence.

Medley filed a motion to recuse Anderson. When a motion to recuse is filed the judge has two options: 1) recuse himself; or 2) refer the motion to the presiding judge of the administrative district for a hearing. In short, a judge doesn't get to decide that he isn't subject to recusal.

Which is what Judge Anderson decided: he denied Medley's motion and proceeded to pick a jury. Medley refused to participate; he stood mute. The prosecutor had misgivings about proceeding, but did, and a jury of six was duly tainted and selected. They weren't sworn, though. With the HCCLA Lawyer Assistance Strike Force in attendance, Anderson took a break and, after getting wiser counsel "decided"—as though it was his idea (it was not, but was instead a deal brokered by HCCLA Treasurer Steven Halpert)—to send the jury home and let the parties proceed on another day with another judge.

(Actually, Anderson did what he and Janis Law used to do: present the defendant with a choice that isn't really a choice: an effort to make error appear invited.)

Anderson is working as a visiting judge for free. Whether he is motivated by boredom or by a deep desire to continue prosecuting people for DWI (courthouse lore is that Anderson wanted a job as a prosecutor, but was turned down and spent his judicial career proving that he could be a prosecutor) is not widely known. Whatever the answer, one thing is certain: Harris County is not getting its money's worth.

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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4 Responses to You Don’t Always Get What You Pay For

  1. Ric Moore says:

    If a woman seeking an abortion has to have an invasive ultrasound procedure, why is it that a Judge isn’t ordered by the State to have his head candled? Surely, there is a greater need to search for signs of life within the head of a Judge than in some poor woman’s womb?

  2. I had a conversation with Anderson at HCCLA’s holiday party in December (2011). I told him essentially that he was not missed sitting as a full time judge and that I, and other lawyers, did not appreciate that he tried to ruin his replacement judge by teaching him all the dirty tricks. He laughed. (The conversation was longer than that & much more fun but I won’t bore with the details. And no, I had not been drinking . . . . The bonus was apparently he repeated at least some of the conversation to some of his former court staff but obviously given what happened to Jim it made zero impression.)

    I have not tried a case in his court in years but back in the day when I tried quite a few DWIs & before the internet was so great, I collected Houston Chronicle articles about all the cops who were doing bad things everywhere. One of Anderson’s favorite things was to talk about how hard a job the cops had and strongly suggest if not outright say that they were truthtellers with no reason to lie. I filed a motion in limine to stop him from doing that once and he overruled it. So I made a strategy decision and when he finished with his voir dire & it was my turn, I pulled out my trusty file folder jammed with the articles & started holding them up one by one & talked about how jurors who had heard this officer testify while he was out committing thefts probably thought he was trustworthy and if he had testified in this court, this judge would have told the panel that…..etc. I did it with several articles & held up the packed folder & told them we could talk about that all day, and that is only part of why, contrary to what this judge was trying to push on them, the law says that NO ONE starts with on the plus side of being honest. (The panel laughed & there were some great comments resulting.) You get the picture. So did Anderson and that little BS game didn’t happen again in my trials.

    But, he is B A D. His voir dire is totally prosecution oriented as are his rulings. He cares nothing about a fair trial and seemingly does not believe that innocent people are ever prosecuted – which is absolutely wrong.

    It would be fantastic if his “visiting” status is stopped, although he would probably go and harm another accused person’s right to a fair trial in another county.

  3. Robert Fickman says:

    On an individual basis most judges are fairly amiable people. Jim Anderson is an amiable guy. That has precisely nothing to do with what Jim Anderson or any other Judge does on the bench.

    Being a judge is a public trust. Judges are supposed to be neutral and detached. They are not supposed to take sides. In the Harris County criminal Courthouse, what is supposed to happen and what does happen are two entirely different things. In the overwhelming majority of county and district courts the judges routinely abandon their supposed role of neutrality in favor of a role as an advocate for the Prosecution. There is absolutely nothing new about it. It has been going on for years and it is as wrong now as it was 30 years ago.

    When judges abdicate their role and become an aid to the prosecution, they violate their oath and the public trust. We call them ” Your Honor” as a sign of respect. Unfortunately too often we are calling people ” Your Honor” and the words are empty. Calling someone ” your Honor” does not embue people with Honor , nor does it restore their lost integrity.

    When a judge becomes an advocate for the state, he taints the trial and almost guarantees a cinviction. When numerous judges take the state’s side, as has been the case for at least 30 years, they taint the entire criminal justice system.

    For years we have pleaded with these biased judges in an amiable fashion aaking them to be fair and” just do the right think.” We are generally met with blank stares,and flat denials of bias. The judges who are pro prosecution are so used to their own misconduct that they cannot see themselves or their wrongdoing clearly. They view those of us who complain as naive or just out of touch.

    But the truth is as Mark has described it. These judges, often lost in their own narcissism, are blind to their own foul deeds. The robe is powerfull. It changes people and not always for the better. Like the ring, in Lord of the Rings, to often the robe corrupts and blinds those who wear it.

    We on the defense are more than tired of asking elected judges to be fair. We are out of patience. There are no more time for that. The only option now is for lawyers to stand up as Jim Medley did, and for the organized defense bar to file Judicial Misconduct complaints. Judicial misconduct complaints that are supported by the evidence must continue to be filed until the offending members of the judiciary change their unethical behavior. The judges have given us no choice but to fight them, given some of their longstanding odious practices of acting as adjuncts to the prosecution. It is past time that those with the title ” Your Honor”, earn it, rather than disgrace it.

    Robert J. Fickman

    Robert J. Fickman

  4. Larry Standley says:

    Robert,

    I plumb forgot to tell you how much I appreciate those mountain climbing Holiday cards you send out every year, Thank You. Also nice tie last week! :)

    Larry Standley

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