The Lawyer Who Knows the Facts Best

On December 31, 2012 Brazos County will say goodbye to Bill Turner, probably the best Texas elected prosecutor ever. Turner choose not to run for office this year and retire after more than 28 years of government service to the citizens of Brazos County. 

I know Turner was the best. I worked for him as a prosecutor. I also worked against him over the years. Bill was my boss when I started my career in the early nineties. It was my first job out of law school. He helped trained me and helped me develop my work ethic as a criminal trial lawyer. Bill was also a colleague and an adversary. I tried two death penalty capital murder cases against him. Additionally, Bill was occasionally my adversary when he came to the defense of young prosecutors he believed I was beating up on.  :-) 

I liked trying cases against Turner because he was good, really good. I liked going head-to-head with him because defense lawyers feared him. Turner made me better. He challenged me. I was always willing to battle in the arena with Turner since I knew I'd be the better for it.

Recently, Bill gave me a bit of his time. I stopped by to tell him I appreciated him. He told me something of his plans after retirement and I was excited to hear about them. They sounded fresh and challenging. 

Lastly, I wanted to tell Turner about the most important thing he ever taught me as a lawyer. He taught me much, but I picked just one thing to share. As a young prosecutor, Turner taught me the lawyer who knew the facts best, usually won the case. That simple truth drove me to prepare each case as if it were my last. To know the facts better than the other guy, since I always wanted to win. I laughed with Turner during our visit when I explained that truism did not always hold water for the criminal defense lawyer. I lamented I often knew the facts better than my prosecutor opponent, but still lost my case. 

My parting words to the best prosecutor Brazos County every had were these: "The lawyer who knows the facts best does not always win. But the lawyer who knows the facts best NEVER looks like an idiot." We laughed and agreed that was good enough. 

Arrogance Raises Its Head Again in Brazos County

Precinct 3 Justice of the Peace, George Boyett, was recently admonished by the Texas State Commission on Judicial Conduct after taking the law into his own hands by ordering a Texas A&M student into his courtroom following a traffic incident involving the judge and student.  It was the third admonishment received by the judge from the Judicial Conduct Commission.  (read the full story in the Bryan Eagle)  Judge Boyett's jurisdiction includes much of the Texas A&M campus and students attending the University should be aware of his public record for violating provisions of the Texas Code of Judicial Conduct.  

During the investigation of the current incident, Judge Boyett was found to have "acted in a manner that failed to promote public confidence in the judiciary."  Further, he was found to have "used the prestige of his office to advance his private interests."  And finally, he "did not act in a 'patient, dignified and courteous' manner toward those in his courtroom."  

Several of the comments on the newspaper's story are worth repeating:

"This is the type of behavior that gives public officials a bad reputation in general. I think a 3 strikes and you're out rule should be considered by State Commission on Judicial Conduct. Boyett clearly does not show the restraint necessary for any Judge. Talk about road rage. I am delighted to say I have never met this man. I hope that remains the case." 

"I have known this jerk for more years than I like to mention. He was a jerk from the begining and is still a jerk. He does not belong in a position of authority at any level. have you seen him in the film for defensive driving? It is a total embarrassment." 

"Boyett needs to be removed from office. He's notorious for his abuse of his position. There's certainly conflict of interest, as his office deals with a lot of landlord-tenant issues and guess what? He's a major owner of rental property in the northgate area. "

"This judge needs a good strong opponent to run him in the next election. He needs to be removed from office.

JP Boyett thinks he rules the world, or the part near him, anyway. It's not surprising he did as described. The wonder is he didn't try to jail someone. "

A justice of the peace is a public servant and member of the judicial branch of government, not the executive.  The job of the judiciary is to interpret the law, not enforce it. The bottom line? Judge Boyett has built a track record and reputation for arrogance and discourteous conduct toward those appearing before him.  I agree a strong opponent should run against him in 201o and bring his record to light for the public's evaluation. I know Judge Boyett attempts to bring a sense of strength and accountability to his courtroom by being tough.  But violating the rules of judicial conduct goes over the line, especially the 3rd time around. 

Travis Bryan, III Makes Brazos County History

History was made this morning as Travis Bryan, III was sworn in as judge of the 272nd Judicial District Court of Brazos County, Texas. Judge Bryan is the 4th judge to hold this post following Judge Brad Smith, Judge John Delaney, and Judge Rick Davis. Bryan was appointed by Governor Rick Perry to replace Judge Davis who recently resigned to run for Brazos County District Attorney. Bryan won the Republican primary in early March and was unopposed on the Democratic ticket. His early appointment to the bench made perfect sense since he'd be sworn in next January after the general election anyway.

The swearing-in ceremony lasted just shy of an hour. The courtroom was packed - standing room only. Leaders from the community were present. Members of Travis' family were all attending as well as judges from other jurisdictions who came to celebrate this wonderful moment with their long-time friend and colleague .

A moment like this comes once in a lifetime - if we're lucky. Our friends reflecting on relationships having lasted for decades. Supportive families, ultimately responsible for our life's successes, recognized as instrumental in all this new day would bring . . . Stories about experiences from both sides of the bar which inspire and spur our audience on to greater service themselves.

Travis' speech was simply inspiring. Dedication. Faith. Fairness. A new beginning. I was so excited for him. A singular moment he may never experience again. I was honored to be a part of this historic moment for Brazos County. Travis is my friend and brother in faith. I wish him well.

Election Postmortem

Because of my busy trial schedule last week I was unable to comment on the Brazos County election results. The race most important to my criminal defense clients was for County Attorney. The County Attorney prosecutes misdemeanor crimes like DWI, marijuana possession, and family violence. Rod Anderson faced Shane Phelps in the Republican primary which finally settled the issue since no Democrat was running for the post. Anderson handedly took the race. The Bryan Eagle reported:

Anderson earned 7,843 votes -- or 65 percent of the vote -- to Phelps' 4,237 votes in Tuesday's Republican primary. The votes cast Tuesday represent record local numbers. In the 2004 presidential primary, 8,648 Brazos County voters cast Republican ballots.

Anderson was predictably pleased with these results. Commenting for the Eagle, however, Phelps said:

"I'm surprised," he said shortly after 10 p.m., when results were final. "I have no idea why it turned out this way. I'm at a loss to understand it."

The courthouse was abuzz over these results. Many expected a much closer race. However, in retrospect I can offer some thoughts that might explain the thrashing Shane received at the polls. First, understand I know and respect both of these men. Rod Anderson is a respected, long-time member of the community. His wife was a police officer for many years working for the City of Bryan. Shane Phelps is a remarkably talented trial lawyer. He is smart, polished, and always well prepared.

However, I think the election results showed how small towns tend to protect and trust their own. Anderson paid his dues in this community. The folks recognize him as one of their own. Phelps, on the other hand, is still seen as an outsider. Maybe even somewhat opportunistic since he has lived in several communities over the past 10-15 years and has run for office, and lost, in several of them.

Shane could be a contender someday. But I think it will take much more time. If he wants the citizens of Brazos County to trust him enough, he's got to become one of the community's own. And that takes time, a lot of time.

Seeking Justice or Convictions

Are we buying the argument offered by candidate Shane Phelps that the Brazos County Attorney needs to try more DWI cases to better serve the community's interests? In an interview with Bryan Eagle reporter, April Avison, Phelps again found fault with the current administration's policy of plea bargaining cases.

Plea bargaining is a fact of life in the criminal justice system. You can't try every case, nor would you want to. Judge Jim Locke's take on the issue?

"Between 2,500 and 3,000 cases are filed in each court on an annual basis," Locke said. "It doesn't take long to realize that the way to keep up with that many cases is to dispose of 60 a week. We can't have 60 trials a week. We can't have 10. We can't have five. The huge majority have to be disposed of by plea bargain."

Prosecutors habitually tell us their job is to seek justice, not convictions. If this is so, then why complain when problem DWI cases, or those charged against first time offenders, are reduced to lesser charges? If society is better served by getting a first-time offender into the justice system by plea bargaining, then why spend time and resources trying cases to a jury, especially when you might lose?

If Phelps believed the prosecutor's credo, then his criticism of his opponent's administration is without foundation. He complained too many DWIs were reduced to lesser charges. He complained those reductions could not be used to enhance future prosecutions if the person became a repeat offender. I disagree those reductions can't be used. They certainly can be used in the punishment phase of any future prosecution.

With arrogance, or bravado, Phelps remarked:

"I will be able to double the number of trials in this office without breaking a sweat," he said, adding that while he understands cases have to be negotiated out of court, the current administration is allowing far too many.

Again, I believe Phelps is going out of his way to pick a fight on this issue. It's not surprising during the election season, though. Nonetheless, if Phelps wants the county attorney job he needs to develop better arguments for why he's the man for the job. Being a better trial attorney, or someone willing to try more cases, does not necessarily serve the community's interest any better that a person with good judgment who decides cases are best resolved by plea bargaining.

As an aside, I'm glad to see the local bar getting into this fight.

Bryan Eagle Favoritism?

To apprise the public of important issues in the Brazos County race for county attorney prosecutor, I've commented here and here on contrary public opinions offered through the editorial section of the Bryan Eagle about candidates Shane Phelps and Rod Anderson. Not surprisingly, the Eagle editorial board may be showing favoritism to Phelps by failing to publish letters supporting Anderson on their website. Specifically, the letters published February 14th supporting Phelps were published on the website that day. However, letters supporting Anderson on February 15th were not published at all.

Consider writing Robert C. Borden, opinions editor, (editboard@theeagle.com) and ask what's going on over there.

Anderson Counters

In road cycling the counter attack usually comes after the initial move is reeled-in and caught by the field. There is often a short lull before the next guy goes off the front to gap the peloton, once again. Nevertheless, there was no lull in the fight for positioning in the race for Brazos County Attorney. In the editorial section of the Bryan Eagle, Rod Anderson countered yesterday's attack by Shane Phelps by offering opinions from former confederates at the county attorney's office.

Former assistant, Bill Ballard, wrote:

It has been my pleasure to have worked with Rod Anderson over the past 20 or so years. (I have also worked with the other candidate for Brazos County attorney) . . . Between the candidates . . . no one in the state of Texas possesses his expertise relating to criminal misdemeanors . . . Contrary to what some may say, consistency, not crushing and devastating change, is needed in the Brazos County Attorney's Office.

I'm note sure I agree with Ballard's assessment of Anderson's expertise. Granted, Anderson has worked for many years in the current administration. But I haven't seen Anderson try one case in my 17+ years of experience in the Brazos County courts. I might have missed it, but for the most part Anderson has worked as an administrator and screening attorney for new cases. I do agree, however, that consistency is what is needed not "crushing change." Phelps is a power rider who'd we expect "crushing" change based on his campaign literature.

Judy Adams also wrote in support of her candidate:

As first assistant county attorney, [Anderson] is in charge of misdemeanor crimes including DWI, minor drug offenses, criminal mischief, and theft under $1,500. The vast majority of these crimes were committed by young first-time offenders who do not re-offend.

Like my criticism of yesterday's opinion by Kirk W. Brown, I'm not sure where Ms. Judy got her facts, or whether she was properly woodshedded before authoring her opinion. I'm unaware of any statistics revealing the demographic and criminal history of misdemeanor offenders. Nor do I know of statistics showing the incidence of recidivism. Again, the voters in Brazos County need be aware of misinformation and self-serving rhetoric in this important campaign.

A few final points. Why aren't the letters in support of Rod Anderson on the Eagle website yet? The letter in support of Shane Phelps was up bright-and-early yesterday morning. Also, where is the local defense bar in this fight? I hope my compadres have the courage to speak their minds about this race. If not, I might need to start posting articles about them!

Phelps Takes A Flyer

In a predictable move, letters to the editor are hitting the Bryan Eagle supporting candidates for Brazos County Attorney. This morning a letter authored by one, Kirk W. Brown, was written in support of Shane Phelps. (Brown is also supporting Phelps financially btw). Brown accused the current administration of "perpetrating a cruel hoax" on the citizens of Brazos County. Here's part of what Brown had to say:

Over the past three years, about one-third of the DWI cases have been reduced to lesser offenses, equivalent to a slap on the wrist for committing a life-threatening crime. When I asked why, I was told that the county attorney can't get a jury in Brazos County to convict a first-offense DWI or that our courts don't have the capacity. Of the 2,000 DWI cases filed in the past three years, only 24 have been tried. How do we know we can't get a conviction if we don't try? Surely our county courts can each handle more than four DWI cases each year . . .

Rod Anderson (Eagle, Feb. 2) said that it takes finesse to come up with plea agreements without creating huge backlogs of jury trials. He said, "I've managed the job for the past 15 years" and that he doesn't intend to make any major changes if elected. The backlog of DWI cases has increased from 91 three years ago to 400 at the end of 2007. As those cases age, they will become more difficult if not impossible to prosecute.

Brown's "slap on the wrist" criticism reveals his deep misunderstanding about how DWI cases actually get resolved. In the alternative, it reveals Phelp's failure to woodshed his witness properly. In either case, it's misinformation and needs clarification.

If one-third of DWIs are being reduced in Brazos County, then two-thirds are being prosecuted to a conviction. That's not too bad for an opinion crime, which Brown conveniently fails to acknowledge. Even if all 24 jury trials were tried to an acquittal, 1309 DWI convictions [(2000 x .666) - 24] during the past three years is not bad.

Of course, Brown does not reveal what's happening to the DWIs reduced. Typically, a DWI (class B misdemeanor) reduced in Brazos County gets pled to obstructing a highway, also a class B misdemeanor. That might not sound so bad. But ask the defendants how they like getting placed on probation subject to all the alcohol related conditions. Ask them how they like paying fines, court costs, and attorneys fees. "Slap on the wrist" is a rank mis-characterization of the facts and self-serving to Phelps.

Brown also complains the backlog of DWI cases has increased from 91 three years ago to 400 at the end of 2007. Does Brown have a clue why? Well, if his facts are correct it tells me the current administration is reducing FEWER DWIs rather than more. It tells me the criminal defense lawyers are queuing-up their DWI cases up for trial since they have little to lose by doing so. See here for details. It tells me the County Court administrators might not have such great docket control.

In any case, do you know what usually happens when someone takes a flyer and goes off the front? They usually get caught. And when they get caught it's an awfully painful experience to catch back on before the finish.

Brazos County Election News

The candidates for Brazos County Attorney put their best foot forward this week in the local news magazine, aboutTown Press. In a nice little Q&A, both Rod Anderson and Shane Phelps claimed to be the best man for the job, but for differing reasons, of course.

Anderson believes he is better qualified because he's worked in the County Attorney's Office for 20+ years and knows the system. Anderson is a certified peace officer and has strong ties to the prosecution staff already on board. I'm not crazy about peace officers posing as prosecutors, but I've known Rod for a long time and believe he is a fair man.

Phelps claims he's the man because of his extensive experience trying both felony and misdemeanor cases all over Texas. He wants to try more jury trials in the county courts and sees this as the answer to making our county safer. He has an interesting proposal called "Second Chance." He didn't explain the program but it sounds like a pre-trial diversion program to me. Pre-trial diversion is akin to "informal" probation that often leads to dismissals upon successful completion of the terms. I like pre-trial diversion for many reasons and can't figure out why Brazos County has not instituted such a program long before now. Many counties in Texas sport such a diversion program.

What I didn't hear either candidate talking about is how they will make the justice system more equitable to those accused by re-tooling the discovery rules currently in place. Currently, the discovery process is extremely limited and without an open file which requires defense lawyers to beg and plead for information about their case.

Fellow blogger, Shawn Matlock, recently offered a comment here about the system in Tarrant County that provides for liberal discovery in criminal cases:

Tarrant County has an open-file policy. In fact, we are now completely electronic in that there are no more paper files. I get access to my client's D.A. file via a secure website.

This is what I'd like to hear both Phelps and Anderson talking about in more detail. If they want support from the local bar, they need to think about developing systems that help resolve cases more quickly and evenhandedly.

Election Season Blues

Primary season's in full swing in Brazos County, Texas. The most significant race effecting clients is between two Republican candidates for the County Attorney spot. The County Attorney prosecutes misdemeanor level cases like DWI, marijuana possession, family violence, suspended license cases, and the like. The contenders are Shane Phelps and Rod Anderson.

Anderson was hired by out going prosecutor, Jim Kuboviak, in 1986 and was appointed first assistant five years later. He made an unsuccessful bid for judge of county court at law in 1990.

Phelps ran for Travis County District Attorney in 1996 and 2000. He lost both times. Look here for the media coverage. Phelps moved to Brazos County in 2001 and joined the District Attorney's Office. He ran for the 272nd Judicial District Court seat in 2004 and lost.

Concerning Phelp's run for the County Attorney spot, Kuboviak said here:

. . . he doesn't believe Phelps has the same passion for the post that Anderson does.

"He [Phelps] just wants to run for something to get some power," he said. "He knew he couldn't beat Travis Bryan, his boss [Bill Turner] already had an opponent, so that was the best thing he could run for.

"If Phelps was interested in misdemeanors, he would have been involved in misdemeanor prosecution, but he hasn't. I think the citizens of Brazos County deserve to have somebody who cares."

In campaign literature on his website, Phelps makes the following promises to voters:

[To] Lead by example by trying cases. Insist on the highest standards of ethical conduct by assistant prosecutors. Train assistant prosecutors to be the most professional and best prepared lawyers in the courtroom.

All this tit-for-tat is making it hard to get work done at the courthouse. The misdemeanor prosecutors are on pins-and-needles, shouldering this scrutiny and believing Phelps will fire every last one of them if he's elected. They are tired and afraid of making mistakes making them look lenient. Their settlement recommendations have become harsher and they are less willing to work with defendants on simple things like court date resets.

Everyone's got the election season blues. If Anderson wins the primary - things should get back to normal - a good thing for my misdemeanor clients. If Phelps wins? Well, it'll be pure hell until next January.