Candidate Answer #9 Ethics
The duty to report is set forth in the judicial canons of ethics as follows:
- Disciplinary Responsibilities.
(1) A judge who receives information clearly establishing that another judge has committed
a violation of this Code should take appropriate action. A judge having knowledge that
another judge has committed a violation of this Code that raises a substantial question as to the
other judge’s fitness for office shall inform the State Commission on Judicial Conduct or take
other appropriate action.
If I became aware of unethical conduct of a peer, I would first confront that person and ensure that person is aware that his/her behavior is a violation of ethics and attempt to persuade him/her to make the necessary changes to right the wrong. If that does not work, the canons of ethics require me to report the conduct to the State Commission on Judicial Conduct.
Candidate Answer #7 Nullification
As explained by Justice Willet of the Texas Supreme Court in his concurring opinion in Robinson v. Crown Cork, the legislature’s policymaking power though unrivaled, is not unlimited.” Robinson, 335 S.W.3d 126 (Tex. 2010). While Justice Willet confirmed his belief that the legislature acts with full hearts in drafting laws they believe honor basis constitutional guarantees, he likewise confirmed (and I agree) that a judge is justified in striking down a legislative act when it is irreconcilable with constitutional commands.
Candidate Answer #6 Reinventing Debtors Prison
Is this a valid complaint? What is the solution?
It depends on whether the judge is following the law. Texas cases have long held that “debts” do not include fines imposed in criminal cases. The logic is that the prohibition against debtors prison is meant to shield unfortunate creditors, not allow criminals to escape their punishment in the form of fines. In 1971, the U.S. Supreme Court in Tate v. Short addressed this situation when it held that a Texan who was too poor to pay his accumulated traffic fines could not be imprisoned. In the 1983 case of Bearden v. Georgia, the U.S. Supreme Court held that judges cannot send people to jail just because they are too poor to pay their court fines. Further, the Court held that a judge must first consider whether the defendant has the ability to pay but “willfully refuses.”
With the exception of payout plan fees (which I do not agree with), as long as the judge in question is following the law as stated above, and as long as due process is afforded to the defendant in question per the laws of this state including the inquiry into indigency at the jail docket immediately following an arrest, the complaint of Texas inducing a new form of debtors prison, in my opinion, is not valid. I will defend my rationale at the conclusion of this answer. Is the complaint valid when individual judges or jurisdictions do not follow the law outlined above? Absolutely.
Solution: citizens must be vigilant in ensuring their elected judges are following the law and upholding the guarantees of the U.S. and Texas Constitutions. Additionally, I believe that the idea of fees for payout plans is logistically flawed, is overly burdensome, and should be eliminated.
As to the defense of my opinion that as long as the judge is actually following the law (and with the removal of payout fees), there is not a real threat of debtors prison in Texas due to the penalties for unpaid fines, for speeding, or for driving without a license or insurance, my rationale is simple. The law requires the judge to inquire into whether the defendant has the ability to pay but willfully refuses, and only upon that finding can the judge incarcerate for failure to pay fines. If the defendant is simply poor, and cannot pay, the judge is not allowed to incarcerate. Is it fair for the judge to then assess further punishment in terms of higher amounts of community service if necessary because the defendant is not even attempting to make payments on his/her fines? It is not only fair, it is the only alternative. To suggest that defendants who are poor and who repeatedly violate the law over many years (the examples in the article were 9 years of violations for Ms. Gonzales, and 11 years of violations for Ms. Salazar) should be completely let off the hook because they are poor, discriminates against the citizens who are law abiding and who have respected the law. It further undermines and makes a mockery out of the judicial system. Violate the law, it’s ok because you are poor. That does not make sense. What does make sense is having a judge follow the law and use common sense judgment and compassion in assessing the punishment to fit the situation of the defendant.
In the examples cited in the article, both defendants complained about the hefty community service hours that were assessed after their incarcerations were challenged and they were found to be indigent. These defendants don’t want to pay their fines and they don’t want to be held accountable for their actions. They are poor and impoverished and I understand that they cannot pay the fines, and that community service hours will be difficult in light of work. However, in one of the examples, the community service hours per month amounted to 18 hours. There is time over a period of a month to work in 18 hours while still working a 40 hour work week. Of course it would be difficult. The punishment is not intended to be a reward system.
These defendants do not want to be held accountable at all, and do not offer some other method of atonement that is more sound or rational. They simply want off the hook. They both complain they cannot pay for a driver’s license or obtain insurance because of their mounting fines—yet they both chose to repeatedly break the law over a 9 and 11 year period respectively. Do not drive without a license, do not break the law, and you will not be ticketed. Do not do this for 9 to 11 years and you will not accrue more fines than you can ever pay. Although I have a soft spot for the impoverished and the poor, I believe that all citizens need to be law abiding. If you make a mistake, are assessed a fine, try to make payments, show up in court when you are supposed to, and try to avoid breaking the law again, then I believe judges should show compassion and understanding, absolutely not incarcerate, and perhaps even diminish a previously assessed fine or length of community service.
Question # 4 Overcriminalazation
Please review video Overcriminalization in 60 Seconds
Candidate Answer #4 Overcriminalization
The term, “overcriminalization,” has not been squarely and universally defined. According to an article published by the American University Law Review, “overcriminalization occurs when a complete analysis of the consequences of treating conduct as criminal indicates that the costs of treating a matter
as criminal outweigh the benefits.” (Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws, American University Law Review, October 2005). In answering the above question, I will use this definition.
In Texas, lawmakers have created over 1,700 criminal offenses, including 11 felonies relating to harvesting and handling oysters. (Marc A. Levin , At the State Level, So-Called Crimes are Here, There, Everywhere, Criminal Justice, Volume 28, Number 1, Spring 2013). Advocates for criminal justice reform argue that some of the criminal offenses are either unnecessary and should be handled in a civil court, or they lack an appropriate mens rea element, and/or are overbroad and vague. One of the pressing concerns in evaluating whether an offense falls into the “overcriminalization” category, is how much it will cost state and local taxpayers to enforce the law, including the costs of prosecution, operating courts, incarceration, and indigent legal defense if jail time is possible.
Although there are many contributing factors to the problem, there is certainly a correlation between overcriminalization and prison overcrowding in Texas.
What response should society have to overcriminalization and prison overcrowding?
On an individual level, citizens should go to their state representatives and senators and ask for them to address the types of offenses described above. In other words, it would be better and safer for society if arbitrary or unreasonable criminal offenses (like the harvesting and handling of oysters) that should be controlled by civil fines rather than by incarceration, were changed and/or obliterated, reducing the number of individuals who actually get sentenced to prison. This is in comparison to the current situation where prisoners, regardless of the types of crimes committed, are released early for time served in order to alleviate the overcrowded prison population. I would prefer the former to the latter, and would rather the oyster harvester be on the street than the convicted felon who committed a real and possibly heinous crime. The 84th Legislative sessions actually had two key pieces of legislation pass that will at least make some positive impact on the reforming of laws to remedy overcriminalization: SB 1902 and HB 1396.
Question #3 Filming the Police
With the advent of smartphones and amateur journalist blogging the filming of public interaction of law enforcement with the public has grown exponentially. The existence of these digital records can have a significant effect, either positive or negative on investigations and conduct of law enforcement as they go about their duties.
One recently proposed bill sought to create a misdemeanor for filming within 25 ft.
Police agencies are responding by drafting new policies that address the legal issues for the public and the members of law enforcement. Recently, the Montgomery County Sheriff’s Dept. and Pct 5 Constables Office attended a NPPA Conference in advance of developing a policy for Montgomery County.
As a Lawmaker, Law enforcer or Law Judge,
What elements must a good policy include and what role should the public play in its development and implementation?
Candidate Answer #3 Filming the Police
In answering this question, I would first state that I do not purport to be an expert on this topic, and that the issue is still one that is being researched and hashed out in many jurisdictions across the United States. I can only point to the concerns that should be considered in balancing the needs for safety, accountability, transparency, and privacy when developing a policy. I would want to be armed with research and data obtained from multiple jurisdictions in order to compare and contrast what works and doesn’t work, and I would want to hear input both from the police unions and from the public before I could opine about the elements of a good policy. With those caveats stated, my answer is as follows:
First, as to the ability of the public to videotape encounters with the police, whether as a bystander or as the person directly in the encounter, there are two competing interests: 1) the safety of the officer and the party involved in the encounter, and 2) the privacy of the party in the encounter and of any bystanders who may be captured on film during a videotaping. Officers are constantly faced with unknown and potentially dangerous situations. For example, during a traffic stop and while an officer is approaching a stopped vehicle, an officer may see the driver of the vehicle reaching for something. The officer typically cannot see during the approach whether the occupant is reaching for his driver’s license, a cell phone to videotape, or for a weapon with which to harm the officer. Although I do not believe that it is appropriate to criminalize the behavior of the driver recording the traffic stop encounter (as proposed during this past legislative session), I do not have a problem with an officer instructing a driver to put his hands on the steering wheel until directed to provide his license and insurance card. In other words, I believe a policy would need to keep in mind that the officers need to be able to control situations to optimize the safety of themselves and the citizens. Any policy developed would need to take into account safety measures while at the same time not encroaching on a citizen’s right to videotape as part of his freedom of speech.
Ultimately, in order to protect both law enforcement and private citizens, it may be prudent to have officers wear body cameras at all times while on duty so that each incident is recorded. This creates a record of what actually occurred from beginning to end, and if it is automatically uploaded onto a law enforcement server, it would minimize the possibility of altering or deleting portions of the video by either law enforcement or by a private citizen. Any policy developed in this county that included mandatory body cameras on officers would have to have specific mandatory policies that would ensure that the video begins at the initial contact with the private citizen, and not just when the officer chooses to record. This is where the right to privacy becomes potentially endangered. Innocent bystanders may be captured on the video, and any dissemination of the video may potentially threaten their rights to privacy. Strict policies about the availability of these recordings to the public would have to be considered. Otherwise, automatically releasing body camera videos to the public or the media may make people fearful of reporting crimes. An example of a proposed policy to consider is making the videos not subject to public disclosure except when police misconduct has been alleged, and of course released to courts for litigation.
Question #2 The Nature of Law
During Texas 84th legislative session State Representative Mark Keough introduced HB 3184 a bill seeking to import the civil law process of mediation into criminal law. The law applied to some first time misdemeanor and felony offenders. The bill passed though the legislative process but failed to become law on veto by Governor Greg Abbott who stated “Making amends with the victim of a crime does not absolve the criminal of his legal debt to the State.”
Do you agree with the Governor? What is the purpose of law from your point of view as a Legislative/Judicial/ Law Enforcement official? Who is it intended to protect?
What should be the role or effect of private judging companies (such as Judicial Arbitration and Mediation Service) in the judicial or incarceration system?
(answer should be based on elected office sought.)
Candidate Answer #2
Sub-part 1: Do you agree with the Governor?
The veto statement by the Governor, in addition to the quotes stated in the proposed question, also includes the following:
This “victim-offender mediation” leaves out a key party in criminal litigation-the State of Texas. Criminal indictments in Texas allege that a crime has been committed “against the peace and dignity of the State.” The State, not the victim of crime, brings criminal litigation against the defendant. And while prosecutors do seek justice for victims, their primary duty is to represent the broader public interest in deterring and punishing crime for the good of all Texans.
Although the Governor is correct that the State is the entity that brings the criminal litigation against the defendant, not the victim, there are at least two grounds where I disagree with the Governor’s decision to veto this bill. First, Article 1.26 of the Texas Code of Criminal Procedure (hereinafter “CCP”) tells us what the legislative intent of that Code is: “The prevention, suppression and punishment of crime.” Article 2.01 CCP also tells us that “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.” The Governor’s decision to look solely to the language of indictments as crimes against the state ignores the possibility that the proposed legislation could achieve the intent and goals of the CCP: the prevention, suppression and punishment of crime and seeing that justice is done.
Second, the Governor’s rationale also ignores a key component of the legislation: that the defendant, the victim, and the State have to agree to enter into the process, and if it is unsuccessful, the defendant goes through the court system as usual. This does not take the matter out of the State’s hands, as the State would have to agree to enter into the victim offender mediation, and if mediation fails or the terms are not complied with, the State then proceeds with litigation against the defendant. The legislation also limits the types of cases to first time misdemeanors or first time state jail felonies, and further allows for local standards (approved by Commissioner’s Court) to be added that could further limit the types of defendants and cases that would be eligible for this process. I would argue that at a local level, in addition to limiting the types of cases eligible for this process to only first time misdemeanors and first time state jail felonies, only non-violent and non-sexually related crimes should be eligible for such a process. There is anecdotal data from Amarillo, Texas where victim offender mediation has been used for some time, that the restitution part of restoring the victim is much more successful than if the case is tried and a conviction is made. The reason for this is because with victim offender mediation, the defendant has a limited amount of time to pay any agreed upon restitution in order to complete the terms of mediation and ultimately have the matter taken off his/her record. Amarillo has seen approximately eight times the amount of successfully recovered restitution monies compared to the normal justice system.
Sub-part 2: What is the purpose of law from your (Judicial) point of view? Who is intended to protect?
I believe the purpose of law is to set forth rules to protect the safety and welfare of citizens, with emphasis on the protection of citizens’ fundamental rights and liberties. Laws are intended to protect the citizens of this nation and the respective states in which they live.
Sub-part 3: What should be the role or effect of private judging companies (such as JAMS) in the judicial or incarceration system?
I believe that the mediator chosen to mediate victim offender mediations should be left to the parties involved in the mediation, with the exception that the mediator should have special training in both general mediations and criminal justice mediations (which was also required by the proposed bill). Other than having special training, I believe that the parties who have agreed to engage in this type of mediation should have control over which mediator they use.
Question #1 Civil Asset Forfeiture.
Texas Supreme Court Justice Don Willett said “A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”
Candidate Answer #1
Thank you for the opportunity to publicly address such an important issue.
Your question instructed me to reply with
1) my view of the proper application of civil asset forfeiture laws in general in Texas and
2)how my view will affect my policy as an elected official.As to the proper application of these laws, I am assuming in answering this part of the question that youare asking me to identify the laws as they are written, and as they would be applied properly by a judge,as opposed to my personal beliefs as to how the law should be changed. With that assumption, my answeris as follows.First, a peace officer who alleges seized property is “contraband” as defined by the statutes, must providethe attorney for the state with an affidavit identifying the amount of the property and stating the probablecause that the proceeds are contraband subject to forfeiture. Upon receipt of the affidavit, the D.A.’soffice may file for a judgment in the amount of the proceeds in the District Court with proper venue perstatute. If the court determines, based on the affidavit, probable cause exists for the suit to proceed, thecourt shall order that citation be served on all defendants named in the suit, as well as all other personsrequired to be served pursuant to the statutes, and the case proceeds in the same manner as in other civilcases.Upon the forfeiture hearing, in order to prevail, the State must prove by a preponderance of the evidencethat the property is subject to forfeiture by establishing that the property is contraband as defined by thecode. The Texas Supreme Court has further held that the State must also show probable cause for seizinga person’s property. Probable cause in the context of forfeiture cases is a reasonable belief that asubstantial connection exists between the property forfeited and the criminal activity defined by thestatute. There is no requirement of a final conviction from an underlying offense for the State to prevailin a forfeiture proceeding; however, the owner may present evidence of an acquittal or dismissal whichraises the presumption that the property or interest in property is nonforfeitable. This presumption can berebutted by evidence that the owner knew or should have known that the property was contraband. If theState prevails, upon final judgment, the D.A. disposes of the property in the manner provided by Article59.06 of the Code of Criminal Procedure.The second part of your question asks about how my view of the proper application of the civil assetforfeiture laws in Texas will affect my policy as an elected official. The answer is simple: it is the role ofthe judge to apply the law as it is written, not to legislate from the bench. Although I believe that theselaws should be amended to protect the Constitutional rights of all, especially the innocent, as judge of the410th District Court, I would apply the laws pertaining to civil asset forfeiture as they are written and willnot substitute my own policies or opinions for the law. However, because of my viewpoint that theselaws are flawed and can result in the harm to innocent people, I will be vigilant in making sure that anyand all procedural and evidentiary safeguards that exist in the laws as they are written now, are fullyupheld.