A little ex parte on the side, please

The other day when I was in one of the felony courts at the Harris County Criminal (In)justice Center, the case of a man accused of killing three people in a strip club parking lot was also on the docket. It was the "star" case of the day at the courthouse and all the news media were lined up in the anteroom of the courtroom waiting to get a look at the defendant if and when he was brought into the courtroom.

My case wasn't nearly as notorious and I stood and waited while the prosecutor did her thing.

Then the judge called one of the other prosecutors to the bench. He began asking the prosecutor about some of the details in the strip club parking lot murder case. There was no one else present at the bench. No defendant. No defense attorney. Nobody.

And there they were discussing details of the case as if nothing were at all out of place.

That a judge and a prosecutor were having a discussion about the facts of a case without either the defendant or his attorney present didn't surprise me at all. We all know it happens. We've all heard a prosecutor utter those infamous words "...this is the case we were discussing..." at the bench. But what surprised me was the brazenness of the act.

Out in open court. There they were, without a care in the world as to whether ex parte communications between prosecutors and judges might just constitute ethical violations by both parties. Without a care in the world as to the due process rights of the accused. Without a care in the world as to whether such a conversation might compromise the neutrality of the magistrate.

If you've spent any time at all in the well of the courtroom, you know that ours is not a level playing field. But shouldn't we at least try to keep up the appearances?