The Insider

Flushing Out the Chambers
Harris County District Attorney Johnny Holmes came back from last month's biennial legal conference of jurists, prosecutors and lawyers at Del Lago resort smarting from a conversation with an unnamed defense attorney. At issue was Holmes's controversial policy forbidding his prosecutors from engaging in private discussions in judicial chambers with judges and defense lawyers about criminal cases being processed in those courts.

Holmes says the lawyer at Del Lago informed him that such meetings are routinely taking place in defiance of the policy. "He said, 'You don't know what's going on in your own office,' " recalls Holmes. He bluntly replied, "Prosecutors better be following the rules of the office, because if they don't, I'll kick their ass."

Judges favor the in-chambers conferences to facilitate plea agreements, eliminate unnecessary trials and streamline overloaded dockets. Holmes has long held that private conferences -- held by the parties to the case and out of earshot of defendants and courtroom observers -- violate the state's judicial canons. He believes they also could provide legal grounds for forcing judges to remove themselves from cases where they have helped shape plea agreements.

State District Judge Doug Shaver, who is the past chief administrative judge for the county, has more than two decades of experience with Holmes, first as a prosecutor and later as judge. He says he respects the district attorney, but then adds a major qualifier.

"Periodically, he stays in his office a little too long and loses touch with reality," says Judge Shaver. He then demonstrated he is certainly Holmes's equal in deploying earthy metaphors. "He can get to be such a tight ass at times that you couldn't drive a three-penny nail up his butt with a sledgehammer."

According to the D.A., the chamber conferences, in addition to being illegal, foster suspicion and disrespect for the legal system from courtroom observers. "When the case is set for trial and both sides go back into the judge's office, and they come out, and now the guy is gonna plead," Holmes reasons, "The victims say, 'Uh-huh, they cut some kind of fuckin' deal in the office back there.' "

"There's some connotation here that something sinister happens in chambers," retorts state District Judge George Godwin, the county's administrative judge for criminal courts. "That's ridiculous." Godwin holds that no matter what he says during a chamber discussion, the only action that matters occurs when he goes back in the courtroom and makes a ruling or judgment in full view of victims, complaining witnesses and the media.

According to Godwin and Shaver, district attorneys in other major Texas counties have no problems with the practice, a fact that doesn't impress Holmes, who asks, "Why do I give a rat's ass what they do up there?"

Holmes cites a section of the state's judicial canons that indicates to him that when judges get involved in discussing a plea settlement to avoid trial, they are setting themselves up for disqualification if a defendant later challenges the outcome.

"Where are we going to be if one side or another goes in chambers, and the judge says, 'What's wrong with the state's offer?' And the defense says, 'He's too high. We've offered to plead for five [years] and they're asking for ten.'

"And the judge says, 'I think seven's a fair middle ground.' And one side or the other files a motion to disqualify him from the case. That's going to be a mess," Holmes said.

Holmes ordered the D.A.'s operations manual rewritten to strengthen the ban on chambers conferences.

"Discussions in chambers with counsel for the accused and the court with regards to pending litigation shall be avoided," states the reworked manual. "It appears to defy common sense for the state of Texas, through its District Attorney, to ever agree to a judge hearing a contested matter after he or she has tried unsuccessfully to settle the controversy."

Holmes now vows that in the future, he'll discipline any prosecutor who violates the policy. He'll also go after defense lawyers or judges who persist in conducting backroom conferences.

"We're gonna file a grievance with the bar and we're going to file on the judge for judicial qualifications [violations]," warns Holmes. "And my people aren't going back there. Because once those judges start mediating cases, and that's what they're doing, they're disqualified from hearing them."

Judge Shaver finds Holmes on shaky legal ground in his claim that the chambers conferences constitute improper ex parte conversations. Since attorneys for all parties are represented, Shaver believes there's nothing wrong with talking in private if it allows a faster, smoother processing of cases.

The chambers conferences are necessary, contends Shaver, because sometimes lawyers on both sides of a case need to give a judge information they do not want aired in open court. According to Shaver, "Many times lawyers for both sides have [asked me], 'Judge, could we go back and talk about it, because there's [something] that we need to tell you that we don't want our client to hear, so that you can make an appropriate decision?' "

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