June 11, 2008
Running prosecutors

Being in Austin last week meant I got a chance to pick up a copy of the Austin Chronicle. I know, I know, I can read it online, but when you're traveling and don't have your usual access to the Internet, having some nice hardcopy stuff to read is a blessing. Anyway, a couple of things caught my eye in this edition, starting with a letter to the editor, in response to this story about Third Court of Appeals Judge Charlie Baird, in particular this passage:

Much to his dismay, Baird recalls, the district judges he appeared before not only didn't read the cases, but they didn't seem to care. To Baird, that meant they weren't following the law - "and I would not get a reason for them not following the law," he said. At first he thought he would be vindicated on appeal, but that didn't happen either. The cases wouldn't go anywhere, and Baird was left feeling like the courts weren't interested either in participating in the process or, indeed, following the rule of law. "It was just a high level of frustration," he said.

By the beginning of the new decade, Baird had decided what to do about it. He'd run for a seat on Texas' highest criminal bench, the Court of Criminal Appeals. "I'll just run for the court," he recalled, "and I'll fix this problem myself."

He ran, from El Paso to Texarkana and everywhere in between, and won - due in part to the strength of the 1990 statewide Democratic ticket, with Gov. Ann Richards at the top - becoming the youngest judge ever to sit on the high court's bench. Over the next eight years, Baird developed a reputation as an independent-minded jurist. "Judge Baird has a national reputation for fairness and independence," says Stephen Bright, president of the Southern Center for Human Rights and a law professor at Yale, who met Baird while he was on the CCA. At the time, Bright was researching and writing about a "disturbing trend" of judges being voted off the bench for "standing up" for the Constitution, instead of gauging the pulse of political concerns before meting out justice. In Houston, for example, Bright said he found that if district court judges didn't "agree" with the positions taken and arguments made by the District Attorney's Office, then-Harris Co. D.A. Johnny Holmes would simply "run one of his prosecutors" against the offending judge in the next election. It was a sure way to keep the black robes in line. "In many courts, prosecutors are used to getting their way," Bright says. "Of course, that's not how it is supposed to work."

That drew this reply:

I worked in that office during the 1980s and 1990s, and I take complete issue with that statement. Under D.A. Johnny Holmes: 1) Any assistant D.A. who chose to run against an incumbent judge had to immediately resign from their job as soon as they filed for office or announced to run. 2) Assistant D.A.s who lost such election bids did not get rehired back into their former jobs. They had to go work elsewhere. 3) I never saw or heard D.A. Holmes publicly endorse any candidate for office. I never saw Holmes appear at any political event. 4) Nothing involving any politicking was allowed to go on in that office, and a nonpolitical culture was present throughout. It is not "simple" to run for election in Harris County. It is expensive and time-consuming. Couple that with the requirement of quitting your job and the decision to run against an incumbent judge becomes something less than "simple." I personally knew several assistant D.A.s who made their own decision to run against judges they thought should be replaced. Most of those people lost. I never had anybody tell me that D.A. Holmes was supporting them, or had asked them to run.

I was not following local politics very much back then, but this letter is certainly in line with Holmes' reputation. I've never heard anything to the effect of what Professor Bright claims, though I wouldn't consider my recollections here to be remotely authoritative. My question to those of you who were in a position to know these things back then is: Who's right? Was then-Harris County DA Johnny Holmes vindictive in that way towards judges he didn't like, or is that a scurrilous accusation? Leave a comment and let us know.

Posted by Charles Kuffner on June 11, 2008 to Crime and Punishment