Harris County Corruption: You’re Soaking In It! (Update X2)

(Updated first to include appropriate soundtrack: )

Item the First:

Cheating Prosecutor, Now Defense Lawyer

On his first day as a criminal-defense lawyer, cheating prosecutor Justin Keiter gets appointed to five serious felonies.

Justin Keiter — caught making an unethical argument to a jury, caught hiding Brady information, and not having his contract renewed at the Harris County District Attorney’s Office — has on his first day as a criminal defense lawyer been appointed to five serious felony cases. Keiter admits that all he has is his reputation; that reputation among the criminal-defense bar is as a cheat. ((Sue me, baby, sue me. Sue. Me.))

Now, some of those recently fired by Kim Ogg or by the voters will make good criminal-defense lawyers. I even have hope for some for whom my colleagues see no hope, and I’m not entirely discounting the possibility that Keiter will, though it strikes me as extremely remote — barring a road-to-Damascus conversion1 he’s most likely marking time until he can find another gig cheating to put people in prison.2

But no criminal-defense lawyer should be practicing on first-degree felonies out of the gate. A former prosecutor is no exception. And I doubt that Messrs. Jonson, Gray, and Burkett would be enthusiastic about being their court-appointed lawyer’s first human clients.

No matter what the judges want to pretend, prosecutorial experience is no substitute for defense experience. And the judges’ own procedures require them to “take into account the individual qualifications of the attorney with respect to the nature of the case [and] a reasonable and impartial allocation of appointments among the attorneys qualified to accept appointments.” As slim as the chances that Keiter was appointed three clients on his first day pursuant to “a reasonable and impartial allocation” are, the chances that his individual qualifications qualify him to defend people facing ignominy and life in prison are slimmer.

So. What’s going on here? Judges showing mercy to this man who never showed any mercy to the unfortunates who fell subject to his little tyranny. Mercy is not earned; it reflects not on the recipient but on the giver.3 Even if Keiter deserves to be drummed out of the profession, his family do not deserve to go hungry. But the futures of the accused are not suitable welfare for disgraced former prosecutors.

There are competent, experienced criminal-defense lawyers who could have been appointed to represent these three men. Judges appointed Keiter instead. I do not think they are corrupt.4 I think they just don’t think about how corrupt they look.

Item the Second:

Download (PDF, 643KB)

That’s a Harris County District Court Judge-Elect, sending a letter on December 30th soliciting money to “retire his debt.”5 Of course a letter sent December 30th would arrive after January 2nd, when the judge was already on the bench, so what this really is is a sitting judge soliciting money from lawyers6 who will be practicing before him to donate to help him repay his debts.

(Update: according to the judge’s “8-day report,” filed eight days before the election, he had no campaign debt, and had already repaid himself $6,808.24 for personal expenditures from campaign funds from 2012 to that date. Which is … interesting.)

Will there be a quid pro quo? Read Influence: We are naturally inclined to reciprocate when people do us favors. I’d like to believe that there will be no quid pro quo — I want a system in which the facts and merit triumph over petty bribery every time7 — but I don’t. Reciprocity is a social force difficult to overcome.

I have contributed to judicial campaigns because the candidates belonged on the bench, or because their opponents did not. Once a judge is on the bench, I see no reason to contribute to “retire a judge’s debt,” other than the possibility that my clients might get some advantage from it. The only way for a sitting judge to collect money from people with cases before him, without the appearance of impropriety, would be to accept them only through a blind trust, so that the judge does not know about the donations.8

And guess what: Nobody is going to donate money to a judge who doesn’t know about the donation because they want that quid pro quo.

The corruption in the Harris County criminal courthouse would be so clear to a visitor from Vulcan, or to Savonarola. But we — even otherwise-ethical judges who strive to avoid not only impropriety but also the mere appearance of impropriety — are so steeped in it that we don’t even see how dirty the water is in which we swim.


  1. Saul was a prosecutor, you know: A persecutor is a prosecutor on the wrong side of history. 

  2. In truth, I think the cheaters should belong in the prosecutorial bar. 

  3. Keiter would certainly have disagreed. 

  4. If I did, I would name them. 

  5. And that’s the sound of my name being hurriedly removed from every other judge’s mailing list. 

  6. I’m pretty sure I wasn’t the only one. 

  7. Corrupt people are corrupt. Anyone who cheats cheats for himself. The lawyer who behaves corruptly for his client will behave corruptly for himself to his client’s detriment when given a chance. 

  8. A challenging arrangement, given that records of donations are public. 

16 Comments

    1. Well, John, I think you’re a clown (because there’s no “maybe” to an agg rob being serious), but let’s start from the top anyway, for the edification of others.

      Assuming that “serious felony” is not a pleonasm, a felony on which a sentencing jury could only sentence a person to prison (as opposed to probation) is serious. That’s Burke’s gun case.

      If “you’re probably going to prison if you lose” were not serious, then such a case with a potential 20-year sentence would be serious. That’s Burke’s drug case. It is also (by operation of enhancements) Gray’s marijuana case.

      If “you’re probably going to prison for up to twenty years if you lose” were not serious, then “you’re facing a statutory minimum of fifteen and a maximum of life in prison” would be. That’s Johnson’s habitual agg rob.

      And if “you’re facing a statutory minimum of fifteen and a maximum of life in prison” were not serious, then “you’re facing a statutory minimum of 25 and a maximum of life” is a serious felony. That’s Gray’s enhanced controlled-substance case.

      Now go be unserious somewhere else. You’ll fit right in here.

  1. The Courthouse sometimes feels like a small town in Alabama where inbred toothless morons holding shotguns provide justice. “The judge is my cousin and my Daddy.”

    There is a home team. The home team is the judges, the judge’s staffs,the das, law enforcement, and some defense lawyers. If you are part of the home team you like kolaches, you share a common goal of “docket control” and you have each other’s back. If you are part of the home team, you get a free badge to enter the Courthouse, you get to take specially scheduled tests and you get to move seamlessly from one position to another. ” I mean Dwayne is a good ole boy.” The home team sees itself as superior and acts accordingly. The home team lacks objectivity about itself. (That might be one reason some members of the home team are currently being sued in federal court.)

    Like most defense lawyers, you and I, have never been on the home team and we never want to be.

    Robb Fickman

  2. During my losing campaign for the 184th I was proud to have a platform of not accepting any contributions from attorneys. You can see how far that got me. The legislators must make the change along with removing the D and R so a judge can truly be fair and impartial. Just my two cents worth.

      1. It is insane that the prospect of a $15.00 warrant fee is enough to require a judge to recuse himself under the Due Process clause, while thousand dollar donations from lawyers appearing before that same judge require only a promise to be fair.

        Great post, as usual.

  3. so did all these recently non-returning, former prosecutors take that certification test last April, just on the off chance they would get canned? Hmm…

  4. Not to be rude but [rudeness toward someone other than me].

    [More rudeness toward someone other than me.]

    And Mark- who do you think has more jury trial: Justin or you? I bet Mr. Johnson would be very happy to know how much actual courtroom and trial experience his attorney has. But who knows, maybe they find some clown on a blog more likeable. Do you tell your clients how many times you’ve gotten other clients maxed out after being offered the minimum?

    [I emailed Mr. Cruz about this a couple of times; he never replied — he probably commented while intoxicated, and regretted it later. I didn’t publish then because Justin isn’t competing with me. I’m publishing now in light of Sid’s comment.]

  5. Hi Mark. Good post today.

    I am a lawyer who practiced in Texas for fifteen years before moving to Colorado where I have been practicing for the past six years.

    In Colorado we have appointed judges. There is some sort of local committee who takes applications, interviews prospective judges, and forwards the names of three candidates for each slot to the governor who appoints one of the three. After a judge takes the bench, they are subject only to retention elections, where there is no party affiliation and no need to campaign or take campaign contributions. The retention rate is very high–something like 98%.

    In my unscientific experience, and the problems of campaign contributions notwithstanding, it is my opinion that the Texas system produces better judges most of the time. The people who get appointed to the bench in Colorado are more likely to have worked for the district attorney’s office, public defenders’ office, or legal services office rather than people who went out and hung up a shingle and started a business, made payroll and paid taxes. It’s a personality thing, I guess, boiled down to career employees vs. employers and risk-takers. Again, in my experience, the latter group make better judges than the former. Just my two cents.

    1. Interesting. We have few judges who were employers and risk-takers. The career path has historically been HS-college-law school-DAO-bench (with maybe a brief sojourn taking appointments during the election cycle).

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