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George Hanks

Al Bennett confirmed to federal district court

Great news.

Judge Al Bennett

After months of delay, a unanimous U.S. Senate on Monday confirmed Alfred Bennett to the United States District Court for the Southern District of Texas, cracking open slightly a national logjam of judicial nominations and a backlog of cases.

Bennett’s 95-0 vote, though welcomed by legal reformers, still leaves in limbo at least two other pending confirmation votes for Texas judges – a vestige of congressional gridlock despite assurances by Texas U.S. Sen. John Cornyn and other GOP leaders who had vowed to push for swift confirmation.

No final votes have been scheduled for Texas judges George Hanks Jr. and Jose Olvera Jr., although Senate aides said they could be confirmed in the coming weeks. Texas’ 11 federal judicial vacancies are the most of any state.

Bennett’s is the first judicial nomination to clear the Senate since Republicans took over in January.

[…]

None of the Texas judges are considered controversial. Originally nominated in September, they represent a diverse new generation of judges: Bennett and Hanks are black; Olvera is Latino.

During confirmation hearings in February all three won praise from Cornyn and fellow Republican Ted Cruz, the junior senator from Texas. At the time, Cornyn said he expected the three Texas judges to be confirmed expeditiously.

But the decision by Republican Majority Leader Mitch McConnell of Kentucky to hold back Senate votes on Olvera and Hanks has mystified court watchers.

“Majority Leader McConnell and Senator Charles Grassley, Chairman of the Senate Judiciary Committee, need to oil the judicial confirmation machinery they’ve allowed to rust over since they’ve taken control, and get the gears of justice moving efficiently again,” said Judith Schaeffer, vice president of the Constitutional Accountability Center.

Of the Lone Star state’s 11 federal judicial vacancies, nine are in district courts and two on the Fifth Circuit Court of Appeals, which reviews cases from Texas.

That is one-fifth of 55 total current vacancies nationwide, according to Glenn Sugameli, who tracks judicial appointments for Judging the Environment, a Defenders of Wildlife project. Meanwhile, the nation faces a record backlog of more than 330,000 civil cases.

I know Judge Bennett – in the Small World department, one of his cousins was a coworker of mine for many years – and he will be an excellent addition to the federal bench. He was first elected in 2008, so he’d have been on the ballot next fall. Greg Abbott will get to appoint his replacement (would that be his first?), so there will be a new Civil Court bench for Democrats to aim at. I’m guessing that will be a contested primary. Indeed, as of Tuesday afternoon former District Court Judge Dion Ramos, who was elected to complete a term on the 55th Civil Court bench in 2008 but then lost in 2010, has announced his intent to run for the 61st. I expect others will follow. Anyway, congratulations to Judge Al Bennett, a swell guy who truly deserves this appointment. May judges Hanks and Olvera join him soonest.

Another appeals court case to be proud of

By “proud”, I mean “deeply embarrassed”. Here’s Rick Casey discussing a decision by the 1st Court of Appeals in which the infamous case of death row inmate Calvin Burdine and his sleeping lawyer, Joe Cannon is referenced, and not in a good way.

“Like the ‘sleeping lawyer’ case, this case will stand as a significant embarrassment in the history of Texas jurisprudence,” wrote Justice Terry Jennings in a stinging dissent.

This isn’t a death penalty case, but a lawsuit in which child protection authorities sought to terminate a father’s parental rights. We Texans consider families so important that we give indigent parents a tax-paid attorney to represent them if the state tries to take away their children.

In this case, John Spjut (pronounced “Spyoot”) was appointed to represent Frederick DeWaynne Walker.

Spjut didn’t sleep through the trial. He simply didn’t attend it. Nor did he do much preparation. Walker testified he called Spjut’s office at least five times but never reached him.

Spjut’s bills to the county do not indicate any contact with his client. He did bill the county for filing an answer to the state’s termination lawsuit, writing two letters to Walker, and spending one hour preparing for trial. Total fee: $750.

But on the actual day of the trial, Spjut didn’t show. Instead, he sent his brother Dan to try the case.

It must have been a challenge. Without a lawyer guiding him, Walker had a hard time finding the right courtroom and didn’t show up until after lawyers for the state had put on their case against him.

[…]

By Jennings’ estimate, based on the trial transcript, Dan Spjut’s direct examination of Walker lasted less than four minutes.

The entire trial, Jennings estimated, took less than 45 minutes.

Yet the two other justices on the panel that heard Walker’s appeal ruled that his right to have a lawyer had not been violated. Justice George C. Hanks Jr., joined by Justice Jane Bland, wrote that Walker had to prove that he would likely have won if his attorney had done a better job.

Hanks wrote that Walker didn’t prove that the way Spjut conducted his defense wasn’t “the exercise of reasonable professional judgment.”

Jennings argues in dissent that Walker received “assistance” of counsel “far below that afforded to the criminal defendant in the infamous ‘sleeping lawyer case.’ ”

“Walker’s appointed trial counsel never discussed the case with Walker and then abandoned Walker on the trial date,” he wrote.

I guess if there’s somebody who can be called a “lawyer” that’s with you in the courtroom, that’s good enough. I wonder if any of the justices who render opinions like this have the same expectation of what a basic level of assistance would be from, say, a doctor or a broker.

Sadly, neither of the justices who thought this kind of lawyering was A-OK are up for re-election next year – we’ll have to wait till 2012 to render our own opinions. On a side note, in searching around for info about Calvin Burdine and his snoozing attorney, I came across this old blog post that detailed some fun and games then-District Court Judge, now State Sen. Joan Huffman played in Burdine’s retrial. I wish I’d have remembered it before her election last year, but oh well.