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
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.