You’re Soaking in it.

Judge says … baby pooped on (Reeves) – if he threw a dog off the bed because the dog peed on bed what would he do if baby pooped on him?

This is the content of a note that Polk County, Texas investigator David Wells says prosecutor Kayce Jones (who was observing) passed to prosecutor Beverly Armstrong (who was trying the case) during the trial of a felony injury-to-a-child case. Wells saw the note, preserved it, and wrote a report accusing the judge, Elizabeth Coker, of of sending text messages from the bench to help Armstrong.

(Jones has since been elected judge of the 411th District Court. Wells’s wife, the stenographer in that court, is likely to lose her job because of Jones’s whistleblowing: that’s the way Texas judges roll.)

The criminal-defense lawyers interviewed for the Chronicle article call Coker’s actions “shocking” (Richard Burroughs) and “unusual” (Stan Schneider). I am not shocked, but I do find Coker’s conduct unusual—not in its underlying contempt for the adversarial process, but only in its high-tech (and easily documented) execution.

On more than one occasion I’ve seen Harris County judges coaching prosecutors during breaks in trial. Once I wandered into the hallway behind a felony court and heard the chief prosecutor, “Cousteau,” and the judge, “Narcise,” discussing (sans defense counsel) the examples the number-two prosecutor would be using to commit the jury panel to considering probation in the sex-assault trial that was about to begin.

When I was in trial in the same court and I had the State on the ropes on a motion to suppress because the number-three prosecutor had failed to do something basic, Narcise upbraided Cousteau (in my absence, but I have eyes and ears everywhere) for Cousteau’s junior’s omission, and then gave the state enough time to correct the omission.

Every experienced criminal-defense trial lawyer has accounts of judges giving pointers to young prosecutors, or cutting them slack that defense counsel would never get, “because they’re young and don’t know any better.” I’ve had misdemeanor judges tell me that they thought training-up the baby prosecutors assigned to their courts was part of their job. I heard this week that one district-court judge “wouldn’t let” a junior prosecutor try any cases in his court because the prosecutor’s trial skills were, in the judge’s view, woefully lacking.

In short, the judiciary acting as an adjunct to the prosecution shouldn’t surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn’t text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

If Wells hadn’t seen the note that Jones passed to Armstrong, or if Jones had phrased the note as her own suggestion rather than Coker’s, Coker would never have been caught. That Coker got caught  doesn’t make her conduct “shocking” in anything but its boldness and stupidity.

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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