(Updated first to include appropriate soundtrack: )
Item the First:
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:
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.
Saul was a prosecutor, you know: A persecutor is a prosecutor on the wrong side of history. ↩
In truth, I think the cheaters should belong in the prosecutorial bar. ↩
Keiter would certainly have disagreed. ↩
If I did, I would name them. ↩
And that’s the sound of my name being hurriedly removed from every other judge’s mailing list. ↩
I’m pretty sure I wasn’t the only one. ↩
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. ↩
A challenging arrangement, given that records of donations are public. ↩