Text parte communications

There seem to be some shenanigans a-brewing up in the Piney Woods these days. According to a report by KPRC-TV in Houston, State District Judge Elizabeth Coker has been sending text messages to prosecutors suggesting questions to ask during trial.

The most recent allegations were made by David C. Wells, an investigator with the Polk County District Attorney's Office. According to Mr. Wells, he and the DA, William Lee Hon, were sitting next to each other in the audience sharing notes about the trial. Then ADA Kaycee Jones asked to borrow Mr. Wells' notepad to write down a message she had received from Judge Coker. Mr. Wells then handed the note to Mr. Hon who shrugged and told him to hand it to the ADA trying the case, Beverly Armstrong.

If the allegations are true, and the fact they were made by an investigator employed by the DA's Office puts some weight behind them, the implications are staggering.

I have written over and over again that judges are supposed to be neutral and detached arbiters. The judge's only duties are to see that the rules are observed and that the defendant gets a fair trial. The judge isn't supposed to be part of anyone's "team."

In sending text messages to prosecutors suggesting questions they might want to ask, Judge Coker crossed the line. If that is what happened, Judge Coker does not deserve to sit on the bench. But she wouldn't be the only one.

On the eighth floor of the Harris County Criminal (In)justice Center sits County Criminal Court at Law No. 2. William Harmon is the presiding judge of that court. This is the same William Harmon who keeps a plaque awarded by MADD in the courtroom. This is the same William Harmon who walks into the courtroom with a sign informing the public that the average person arrested for DWI has driven drunk 87 times before being caught.

This is the same William Harmon who instructs the prosecutors in his court on how to get evidence admitted and what tactics to use on cross-examination during breaks in the trial. I've seen him do it when I assisted a friend trying a DWI case in court some time ago.

Up on the 11th floor in County Criminal Court at Law No. 13, I was observed as Judge Don Smyth called a woman charged with theft up to the bench. She had not yet hired an attorney. The judge berated her and sent her back to have a seat. Then he called up one of the prosecutors and asked him why the defendant hadn't been charged with felony theft due to her prior convictions.

That wasn't his job. His job was to be a neutral and impartial arbiter in the case before the court - not to advise the DA's Office on how to charge defendants.

It doesn't take a genius to see how it happens. When a judge interacts with the same team of three prosecutors day after day for weeks or months, everyone gets a bit chummy. They start to see their interests aligning and the next thing you know, the judge is offering advice on how to proceed on a given matter to a prosecutor.

Having said all that, the goings-on in Polk County involve more that just a judge allegedly acting unethically. If Mr. Wells is being truthful and Mr. Hon did motion for him to pass the note onto the prosecutor trying the case, Mr. Hon has some explaining to do. He knows the law. He knows that ex parte communications between a judge and a party to litigation without the attorney for the other side present is wrong. He knew it was wrong but he motioned for Mr. Wells to pass the note on anyway.

And what about Mr. Armstrong's comment that Ms. Jones was handing her notes constantly that she claimed she had received from Judge Coker? Just how long had this little arrangement being going on? For how long were defendants in the 258th Judicial District Court going up against two sets of prosecutors?