MORE

An Open Mike

Houston and its sometime homeboys were on a Republican roll to start the new year.

Much of the city reveled first at the earlier news from Florida, where George W. Bush had emerged victorious from the enigma of the vote recounts. After that euphoria played out, the president-elect set off another wave of Bayou City boosterism. He picked Houston's own Rod Paige to become U.S. secretary of education.

The local media savored the newfound splendor for this seven-year HISD superintendent. His former allies on the school board spoke of a once beleaguered district now destined for world-class acclaim. They listed a range of accomplishments for Paige: higher test scores, an insistence on accountability, zero-tolerance discipline and a school police force to ensure safe schools.

Mike McSpadden followed all the glowing reports. As a state district judge, he had more information than the masses -- including the file of a homicide case against Estanilao Balderas. In a hallway of HISD's Deady Middle School in 1999, the 15-year-old had plunged a screwdriver into the head of 13-year-old Samuel Avila.

The judge, in his many trips to speak to inner-city youngsters, had seen the school corridors crudely emblazoned with gang graffiti. In the Balderas case, he knew about earlier pleas -- from teachers, parents and even frightened students -- for HISD administrators to intervene and stop the escalating violence.

McSpadden was aware that on the eve of the killing, Deady had been the scene of one of the bigger gang fights in the district's history. And that district officials, apparently intent on ignoring the strife, had offered reassuring, if misleading, statistics on urban school safety.

On January 5, 2001, McSpadden sentenced Balderas to five years in prison. In the 21 other felony courts in Harris County, that would have concluded the proceedings. In McSpadden's court, the judge was just beginning to assess blame.

Deady and other urban schools remained out of control, McSpadden told the courtroom in a tone of controlled anger. And the district was as responsible as the teenage killer for what had happened. As for HISD being an example of excellence, McSpadden said many in the city "just rolled our eyes" at the blizzard of those references. If this district was to be held up as a national model, "then God help the rest of the nation," the judge concluded.

His stinging rebuke echoed all the way to the new administration in Washington. National GOP operatives wanted to dismiss it as more grousing from the losing opposition, but that was impossible.

McSpadden has been a 19-year Republican standard-bearer at the ballot box. And for almost that long, he has relished his role of heretic in the minds of the local GOP hierarchy.

Weeks earlier, the judge had learned that regional party leaders had pressured appellate justices with a letter calling for them to reverse their stand against the constitutionality of the state's sodomy law. McSpadden had a letter of his own for the county GOP chairman: If he ever tried threatening tactics against him for a judicial decision, he wrote, "you may be leaving my office head first."

"From almost day one, Mike's been shooting his mouth off," says another judge. "He's been warned. He knows the costs, but he just keeps on doing it. There's no shutting the guy up."

McSpadden has delivered frank commentaries on everything from voluntary castration of sex offenders to condemning the political influences on the county's judiciary. His maverick ways have come at a cost to his career. He's made enemies, some in very high places. They deride him as a publicity hound -- others hail him as a watchdog of judicial conscience.

"He'll take on anybody -- he's not afraid of the devil himself," says Doug Shaver, former criminal administrative judge. "That's what I like about him, and that's what a lot of people like about him. He's based on what his principles are -- not on some party's political position."

While McSpadden is hardly the first rebel in the local Republican ranks, he's one of the few who has done more than survive. By all indications, that's a trait that runs deep in the family.


With grayish-blond hair and blue eyes, Judge McSpadden hardly looks the part of a card-carrying (courtesy of the Bureau of Indian Affairs ID section) Cherokee. Neither did the man four generations removed from him, Jesse Bushyhead. He was the grandson of a Scottish captain who took a Native American wife and the ways of the Cherokees.

Bushyhead drew his tribal name from his thick, curly red hair. In 1830 President Andrew Jackson bowed to pressure from settlers to renege on treaties and drive the Indians out of their fertile southeast homelands. Eight years later began the infamous Trail of Tears -- the brutal forced march of some 16,000 Cherokees to reservations in Oklahoma. Many died along the way. Bushyhead led a band of about 1,200. They fared better than most -- although his own daughter perished as the group prepared to cross the Mississippi.

 

The tribal elder went on to become chief justice of the Cherokees' Supreme Court. McSpadden's own father, Ray Thompson McSpadden, served on the Cherokee Nation's election committee. His was the first panel to name a woman, Wilma Mankiller, to a ranking position.

By the time Michael Thomas McSpadden was born in 1944 in the West Texas hamlet of Borger, oil was in the family's blood. His father would log 40 years for Phillips Petroleum, rising as a refinery supervisor in moves that took the family on their own unforced migrations through the West. McSpadden, one-eighth Cherokee, was a ninth-grader by the time they settled in Bartlesville, Oklahoma.

The judge, even as he sits today in a judicial chamber decorated with peace pipes and related Indian artifacts, plays down the Native American heritage.

"Growing up as a child, one thing I learned from my family is you never used your heritage as an excuse for anything you didn't achieve," he says. Another lesson -- a far more unlikely one -- would have the greatest impact on his future.

The senior McSpadden, before his death in 1999, was an avid athlete who was inducted into the Northeastern State University Hall of Fame in both tennis and basketball. His son still remembers his advice, from more than a half-century earlier:

"Mike, play all the different sports you enjoy -- but always play tennis."

The boy wondered why.

"It's a carry-over sport," the father explained. "With it, you'll meet more nice people -- quality people."

Under his father's tutelage, Mike McSpadden got a tennis scholarship at the University of Oklahoma. He became the Norman conqueror of the courts, claiming the Big Eight singles title for OU from 1963 to 1966.

He also became an all-star hell-raiser, another jock who lavished in the drinking and partying so prevalent on campuses in that era. Almost 30 years later, he'd have to admit to a political opponent that he served a six-month probated sentence for biting a woman on the butt while dancing the "gator." And police twice detained him for intoxication.

"I majored in history and minored in stupidity," McSpadden says, shaking his head slightly. "Like a lot of students, everything was without boundaries for me in college."

He headed into OU law school and found himself facing the draft at the zenith of the Vietnam War. Contemplating his options, McSpadden enlisted with the marines. When he completed basic training at North Carolina's Camp Lejeune, McSpadden's tennis abilities again guided his fortune.

Major General Rathvon McClure Tompkins, the Lejeune base commander, was a hardened marine veteran of three wars -- as well as a tennis addict. Tompkins noticed McSpadden's talents and gave him the chance to become a member of the Marine Corps squad that competed against the other armed services.

McSpadden acknowledges only that he played for the corps. Others familiar with that era add some relevant details. Marines didn't tolerate losing, whether it was in foxholes or on clay courts. Those who dropped to the bottom seed of the six-member marine tennis team had to take on challengers.

"Mike doesn't like to talk about it, but some of those were the matches of his life -- skinned knees and everything else, and he'd have to keep on playing," says former district attorney Carol Vance. "Those were high stakes: Lose and you're shipped out to Vietnam."

McSpadden stayed stateside until his honorable discharge in 1971. He then returned to Norman and finished law school. At his father's insistence, he signed on at Phillips Petroleum. And if not for his prowess with a racket, he'd likely be heading toward a quiet company retirement by now.


As district attorney of Harris County in the 1970s, Carol Vance had a love of tennis that was legendary. The fatherly administrator would turn into the fiercest of competitors for anyone on the other side of a net.

Mike Ringer, a former OU quarterback and rival of Vance's on the courts, ran into Vance at the National College of District Attorneys. He couldn't resist tempting Vance with some news about the arrival of a friend.

"I got a guy who can whip you in tennis," Ringer laughed. Vance, unaware of McSpadden's accomplishments in Big Eight competition, told him to bring on the stranger. "Mike won that first match," Vance recalls, "but not by much. I gave him a real good game."

 

As they continued to face off in matches, a friendship developed. Vance learned that McSpadden worked for Phillips as a land man, a relatively lowly position of checking deeds, handling mostly boilerplate leases and other mundane matters.

"Carol got really tired of hearing how much I hated my job," McSpadden remembers. "He finally said, 'If you hate it that much, come with me.' "

He did. Assistant district attorneys of that era were bemused by Vance's enlistment of a tennis addict as an employee, although McSpadden quickly immersed himself in the alien world of criminal justice. He was fascinated almost daily by the cops and crime, wary witnesses and defendants, hardened repeat offenders, and tender wounds of victims and relatives.

"When I saw how people were affected by crime, it changed my attitude quite a bit, from being so self-centered about what was best for me to being concerned about other people during a tragic time in their lives," he says. "It changed me more than any other four years of my life."

McSpadden amassed an enviable record. "He was very effective," Vance says. "I just think he really cares about people, and that comes through."

The prosecutor got promoted to the felony court of veteran jurist Lee Duggan. The judge, while friendly and engaging off the bench, had a reputation as a taskmaster in court. "After seeing the way Lee ran the courtroom, I thought, 'Gosh, that wouldn't be a bad job,' " McSpadden says. "But I never thought I'd have any chance at all."

Judgeships traditionally awaited only longtime veterans of the D.A.'s office. Even then, it was almost the exclusive domain of top prosecutors or senior administrators. McSpadden's break finally came when Duggan advanced to an appellate bench. Then-governor William Clements named McSpadden to that vacant 209th District Court in 1981.

McSpadden acknowledges his appointment was helped by two GOP heavyweights, developer Walter Mischer and George Strake Jr., then-Texas secretary of state and later a state Republican chairman. They weren't tennis fanatics, although McSpadden's regular matches at the River Oaks Country Club had helped move him into the influential circles that nourished those friendships.

"I wouldn't take anything for the time I told him to come over and be a D.A.," Vance says. "I didn't know what I was doing at the time, but it turned out to be one of the smartest things I ever did. He's a natural."

Of course, there was a bit of a downside for the D.A. Vance was losing his doubles partner, the one who'd helped him win countless bar conference championships.


Texas voters had finally broken the Democratic domination that existed since the end of Reconstruction, although the Harris County courts remained a bastion of relative constancy. Once in office, competent judges generally could count on keeping their courts -- and keeping them free of outward political pressures.

McSpadden entered a somewhat elite league of judges who'd become virtual institutions at the courthouse. There were the likes of Frank Price, Allen Stilley, Jimmy James, Rick Trevathan, Doug Shaver and superprosecutor Ted Poe -- longtime anchors of the district attorney's office or highly praised defense veterans, well steeped in the intricacies of criminal law.

Then, only nine months into McSpadden's judgeship, came the shock. Popular Democrats Mark White and Lloyd Bentsen headed the 1982 ballot. Voters responded by ousting Clements as governor -- and shaking the courthouse to its core. Few of those casting ballots even knew the bottom-of-the-ballot names or qualifications. This was straight-ticket slaughter.

"Only Ted Poe, Shaver [a Democrat] and me survived," McSpadden remembers. "All these other judges, who were much more experienced and qualified, lost. I guess I was naive to think the most qualified would win."

The defeated Republican hierarchy was equally stunned. Several party officials called for Texas to follow most other states in reforming the selection process. Have the governor make appointments from a list of qualified candidates who would then stand for onetime confirmation by voters. Or at least just make judgeship races like City Council elections -- strip the party affiliation from the ballot.

Democrats, giddy over regaining power in the state, scoffed at calls for change. McSpadden was midway through his first four-year term in 1984 when the second judicial bloodbath hit. This time the Republicans, in the wake of Ronald Reagan's popularity, roared back with a vengeance to topple incumbent Democrats.

McSpadden remembered the earlier GOP calls for reform, so he raised that as an issue at the first postelection GOP officials' meeting. His Republican counterparts looked at him like he was crazy. "What I heard from them was just the opposite: 'Now that we're in, we like it like this.' They'd completely changed their position 360 degrees within two years."

 

Party executives quickly dismissed his views. Two years later they would learn that the battle, at least for him, had just begun.


McSpadden, facing his first re-election run in 1986, didn't draw an opponent. But he got the routine request from the Republican Party to join in a unified front. He was told to ante up $4,000, the same as the other GOP judicial candidates, for a mass mailing of a party campaign brochure in the judgeship races.

The jurist examined the draft mail-out that boldly proclaimed, "Choose your weapons in the war on crime." McSpadden was certainly not pro-offender. But he had a problem with the fellow "crime fighters." Their ranks included candidates for family court, civil judgeships, even probate court -- venues that had nothing to do with criminal law.

To make matters worse, some of the candidates, in McSpadden's mind, were inferior to their elected opponents, even if such incumbents were Democrats.

Members of the GOP campaign group -- it operated under the lofty name of the Committee for Judicial Excellence -- asked McSpadden about his delay in signing on. McSpadden explained that he wasn't going to lend his name and funding for a drive to dump qualified judges.

They warned him to think seriously about the consequences of his stand. The stakes were escalating.

McSpadden's next call came from GOP stalwart Jack "the Jawboner" Rains, whose efforts as Clements's campaign manager would be rewarded with an appointment as Texas secretary of state the following year.

Rains was blunt. McSpadden remembers him saying he'd be a Republican traitor if he didn't sign on in this political war. McSpadden had talked to him about a coveted federal bench, where lifetime appointments mean liberation from party politics. And Rains was somebody who could deliver.

Rains, showing compassion in the Friday conversation, told McSpadden to take the weekend to come to his senses. Rains would call on Monday.

"Save your dime," McSpadden told him. "There's no way I can do this, not after I've been advocating nonpartisan judgeships forever."

Rains reminded him of what that stance would do to his chances of ascending to the federal judiciary, McSpadden recalls. Then he hung up.

"Mike asked a few of us for advice," says a fellow judge of that era. "How do you advise him on something like that? It was a tough time for him, but he isn't the kind of person who is going to give up on his principles, even if there's a federal bench on the line."

When McSpadden outlined his position in a newspaper op-ed piece, the party establishment was further outraged.

Still, two years later, the elevation of U.S. District Judge John Singleton to senior judge created an opening on the federal bench. Nobody was more surprised than McSpadden when he learned that his application had been accepted and he was a finalist. He was on his way to Washington, D.C., to be interviewed by U.S. Senator Phil Gramm himself, the man who ultimately would select the nominee.

Maybe, just maybe, McSpadden had overestimated all this party emphasis. Aides ushered him in to meet the senator. Gramm, it seems, wasn't interested in tennis -- and it wasn't McSpadden who did much of the talking in those 30 minutes.

"It was nothing but him speaking partisan politics," McSpadden concedes. "You know, 'Why hadn't you signed on to the brochure? Why hadn't you done this? Why hadn't you done that?' "

"They take [politics] very seriously," he says. "When I left, I knew there was no way in the world I was going to get it."

During the grim wait at the D.C. airport for the return flight, McSpadden saw another finalist, a new state district court judge named Melinda Harmon. She was fresh from her interview with Gramm. "She walked up and said, 'Mike, you've got it. All Senator Gramm talked about was what a wonderful judge you were.' "

"I just said, 'Melinda, expect a phone call tomorrow.' " She got it, informing her she was to be the next federal judge.


Republican Party operatives aren't ready to relive their version of events on the record, although some of them clearly relish the eventual revenge exacted on this infidel.

One party lieutenant voiced surprise that McSpadden had even tried to get the federal appointment after defying the GOP leadership just two years earlier. "And after that, he figured his goose was cooked."

This GOP insider said the party loyalists believed McSpadden was "self-aggrandizing at others' expense." Sure, the source conceded, the general public hardly knows one judicial candidate from another when they go in the voting booth. But Republicans reasoned that only GOP voters were paying heed to McSpadden's caution against straight-ticket voting. So his stand strengthened the election odds for Democrats, who also advocate balloting along party lines.

 

"While Mike's saying those things, the Democrats bring in Bill Hobby to the pulpits of churches to tell 'em, 'Pull No. 7 [for the straight-ticket vote] and you'll go to heaven.' The Republicans wind up losing."

As Jack Rains was going into the 1990 Republican primary in a losing gubernatorial bid, the GOP found out just how strongly McSpadden felt about nonpartisan judicial elections. He recounted the episode in a newspaper op-ed piece. McSpadden noted that Rains himself admitted that he doesn't even cast a straight-ticket ballot in judicial races -- for the same reasons voiced earlier by McSpadden.

On the defensive, Rains fired off a letter to the editor, saying he hadn't bullied the judge earlier. "My call, and other calls I know he received, were offered as advice from a friend and supporter to an ambitious young judge….The only threat to Judge McSpadden's career is his conduct and demeanor."

Rains's comments almost could be seen as prophetic, given the clashes that would follow on several fronts for the rebel judge. When it comes to the establishment, McSpadden's an equal-opportunity antagonizer.


Nothing may be dearer in the local justice system than the judicial tradition of patronage -- court appointments of lawyers to represent indigents.

Many other urban court systems converted ages ago to full public defender operations, establishing a government department similar to a district attorney's office, staffed by salaried lawyers who handle the defense of poor defendants in all courts of a particular jurisdiction.

In Harris County, individual judges decide who will be picked for indigent defense -- and, within limits, how much they will be paid. A handful of lawyers regularly make more than $100,000 a year off appointments, and hundreds more rely on this system to subsidize their private practices built on paying clients.

Attorneys, grateful for the appointments, typically form a prime source of campaign contributions for the re-election of the judges who name them to cases.

McSpadden assumed the bench and, like the other judges, began randomly assigning cases to attorneys who left business cards with his staff. "I was as guilty as the rest of the judges in appointing people I didn't know who turned out to be incompetent," he says.

After having to declare two mistrials because of inept defense attorneys, he spearheaded the movement to go with a miniature version of a public defender system. Each judge still can decide how to appoint lawyers to indigent cases, although McSpadden pays three experienced attorneys on a contract basis to handle all indigent noncapital cases, to keep a lid on costs for representing the poor.

In the early '90s the judge drew the ire of many defense attorneys when he helped cap fee rates for all the courts after appointment costs ballooned to more than $15 million for all felony courts.

Another basic tenet around the courthouse -- that judges don't criticize other judges, at least publicly -- doesn't apply to McSpadden. Early in his tenure in 1984, he called for an investigation when lame-duck judge Jay Burnett pumped sizable amounts of court appointment money to friendly lawyers in his final days of office.

Another judge in the early '80s had drawn continual criticism for heaping abuse on attorneys and others with business in that court. After hearing the repeated complaints, McSpadden walked into a judges' meeting and announced that he wasn't going to seek re-election to his bench. After that deadpan announcement, McSpadden explained that he would instead run against the offending judge.

"It got very quiet," says one jurist in attendance. "And he got his message across: Either that judge was going to straighten up and start treating people with dignity, or he was going to run for that bench -- and win. It was an effective way of getting the other judge's attention."

He got public attention in late 1994, when he announced that he'd boycott the meetings of the Board of District Judges to protest the election of Werner Voigt to a criminal court bench. McSpadden had barred Voigt from his court for years, after a 1986 trial in which Voigt, a new court-appointed attorney at the time, appeared to be incapable of effectively representing his client.

McSpadden has also sparred with influential figures who normally get a free pass from judicial criticism: politicians. In 1994 he took on several elected officials, including then-powerful state Senator John Whitmire and other Democrats, for what McSpadden saw as an abuse of the use of legislative continuances.

 

Under the law, attorneys in the state legislature are entitled to automatic delays in trials for clients while the legislature is in session, under the theory that they have to be in Austin representing constituents during that time. In reality, some legislators are paid merely to be added as attorneys to cases in which the primary lawyers want to postpone proceedings. Politicians who abuse the process are no better than "street prostitutes," the judge announced.

Whitmire, who chaired the powerful Senate committee that oversees court funding, was in for more arrows from McSpadden in early 1994. The judge bristled when Whitmire took partial credit for toughening the criminal code the previous year. "When criminals hear about these 'sweeping reforms' they should be laughing all the way to their next crime," the judge wrote in an op-ed piece for the Houston Chronicle.

McSpadden didn't do all the writing to criticize portions of the revised laws, some of which reduced prison time for repeat nonviolent offenders. As part of their sentences, McSpadden sarcastically had some criminals pen thank-you notes to Whitmire for their probated sentences.

An angry Whitmire shot back that he wasn't responsible for all the changes, and that the inmates thanking him for probated sentences actually had to serve some prison time. In the fallout over that McSpadden attack, the judge got slapped with a private reprimand from the state Commission on Judicial Conduct. Even Carol Vance stepped into the fray against his tennis partner, saying Whitmire and others should be commended for cracking down on crime.

That flap was felt in Austin. Another dispute, carried by a lowly Houston bootblack with a troubled past, would reach international proportions.


Steven Allen Butler was in big trouble in 1991. The mentally challenged shoeshine man with a wife and daughter had received a ten-year probated sentence two years earlier for fondling a seven-year-old girl. Now he was back in jail, awaiting trial for repeatedly molesting and raping a 12-year-old neighborhood child.

Then Butler heard of a novel position by a Houston jurist. Judge McSpadden, citing research done by Houston physician Louis Girard, called for castration of those who commit violent crimes, particularly sexual predators.

McSpadden's reasoning was simple. Traditional counseling approaches had scant success in rehabilitating pedophiles and rapists. Most can't be locked up for life, and most were being released only to find new victims. So take away their testosterone through castration to rid them of their violent aggressiveness and deviant sex drives. Girard claimed a success rate four times that of counseling programs.

The issue would have remained as nothing more than a quirky hypothetical that spawned a Newsweek brief titled "Frontier justice is alive and well." But Butler stepped forward in 1992 with an unusual plea proposal. His lawyer said the man was ready to give up his gonads in return for ten years' probation on his latest charge. McSpadden, to ensure Butler was competent to come to that decision, had him undergo psychological testing, and then a medical doctor was lined up for the castration procedure.

And all hell broke loose.

Even some victims' rights advocates decried the plan as barbaric. The case of Butler, an African-American, became a lightning rod for black activists condemning it as racist. Jew Don Boney, then a community leader, attacked McSpadden, and Jesse Jackson flew to Houston to confer with the defendant's family. State Representative Ron Wilson of Houston vowed to seek McSpadden's impeachment if he allowed the castration. "It conjures up all kinds of symbolism from the days of slavery," Wilson told The Houston Post. "It sounds real cute, but it's a very dangerous thing."

The international media converged on the city to chronicle the conflict. In the furor amid accusations of racism, the physician backed out, and no one else could be found to perform the castration. The defendant withdrew his offer, and McSpadden withdrew from the case. Butler got another attorney and went to trial. He emerged, genitals intact, but with a life prison sentence.

The arguments stretched through most of the '90s as a handful of other inmates said they wanted the procedure. The result is that Texas is now one of a dozen states with laws allowing voluntary castration for sex offenders. McSpadden says four inmates are up for the operation in Texas.

"I took some hits on that," he says. "But looking back, I'm glad I did what I did. As for the arguments about it being 'cruel and unusual,' it is unusual in that it works. And it is not cruel if it helps a person conform to society."

He pauses. "I will probably be more proud of what I did back in '91 for sex offenders than anything else." His biggest regret is that accusations of racism diverted attention from what he views as the legitimate issues. McSpadden notes that African-Americans have a smaller percentage of sex offenders than either whites or Hispanics.

 

The cries of racial prejudice hardly backed him off other issues. Instead, McSpadden has penned op-ed articles attacking some minority leaders.

Just as the uproar was most intense over the execution of black inmate Gary Graham last year, McSpadden lashed out at him as the "wrong poster child" for death-penalty foes. The judge, in an editorial, called Graham supporter Quanell X "a thug" and said his armed entourage looked "more like an outtake from Toy Soldiers than an intimidating force."

The judge himself, when on the bench, can be an intimidator. Even during docket calls, when dozens of conversations can make courts seem more like cafeterias, McSpadden insists on total silence as he conducts business.

In a system where off-color humor or heated asides are the norm, he'll lash out from the bench at the slightest indication that someone has demeaned another attorney, a witness, a spectator or even a shackled defendant.

"If he ever heard anybody talk bad to a defendant or just treat them with disrespect, he would come unglued," says Assistant D.A. Luci Davidson, a former prosecutor in his court. "That person would get a stern lecture in open court, in front of everybody."

So McSpadden has taken aim at an incredible array of targets: fellow judges, lawyers, legislators, political chiefs, minority community leaders and others with the kind of collective clout to chase him from the bench after one term.

"His success is his openness," Davidson says. "He doesn't play favorites. There's no bones about it -- you always know where Mike McSpadden's coming from, especially when he gets upset. He's got a rare compassion for people -- he feels their pain."


Judges are regulars on the rubber-chicken circuit, frequently showing up at voter-rich gatherings of garden groups, civic associations or GOP women's clubs. McSpadden is also in demand on this circuit, but his primary preference is for a path far less traveled by the gavel-wielding set: inner-city youths.

For more than a decade, he has delivered talks at urban schools and other places hardly likely to translate into voter traffic at the polls. In recent weeks, he has reserved his Friday noon hours to lecture urban youngsters on the evils of drugs and crime and the immense value of education. He showed up to deliver the commencement address at a school with a captive audience: inmates receiving their GEDs at Joe Kegans State Jail.

"What's unusual is just how much interest he takes in the community," says District Attorney Chuck Rosenthal, who was the first chief prosecutor in McSpadden's court. "There are a number of judges who wouldn't reach out to those segments of the community. And Mike doesn't even have to do that to be re-elected. He's just got a strong sense of community responsibility."

The judge even relied on Rosenthal in the early days to help evaluate his stinging op-ed treatises.

Several attorneys say they find the formal nature of the court, while contrasting with his casual off-the-bench style, refreshing.

"He conducts his court with tremendous judicial decorum," says veteran attorney Mike Hinton. "As soon as you set foot inside, there's a pervading atmosphere of dignity and respect at all times."

"You can hear a pin drop when he takes a plea," says lawyer Anthony Osso. "That's pretty much the old school. You can count on getting your day in court."

Terry Gaiser, a veteran defense attorney, gives McSpadden high marks for his objectivity: "He's got an established reputation for being a very fair judge."

Kent Schaffer laughs about the early days when defense attorneys dreaded to have a case before the outspoken McSpadden. "Now it's like a breath of fresh air to end up in his court."

"The thing that either side should ever want in a trial is level playing field," Rosenthal says. "I feel like both sides get that in his court."

Praise might be predictable about a judge who regularly gets among the highest marks on bar association qualification polls, but even most of those who have been in McSpadden's crosshairs are complimentary.


Outspoken attorney David Jones wrestled with McSpadden -- and won -- in an early fight against reduced fees for court-appointed attorneys. More recently, he accused the judge of at least tacitly condoning what Jones believes is an out-of-control probation officer in the judge's court. The attorney says the officer was hell-bent on sending his client and others to jail, even to the point of distorting reports and misleading lawyers on available sentencing options (see "Go Directly to Jail," by Richard Connelly, June 24, 1999).

 

"The thing that impresses me is that we've had our run-ins, but he has not held a grudge," Jones says. "He can dish it out and he can take it, and he can get over it. It hasn't had to do with me going in and groveling, or 'kissing the ring.' "

If anyone, former judge Voigt, barred from McSpadden's court as a lawyer and belittled by him as a judge, should have acidic opinions. "Actually, he was right," Voigt says of McSpadden's early actions. McSpadden concedes that he should have kept private his criticisms about Voigt's judicial abilities. "The judge contacted me and apologized about that," Voigt says. "We may have had friction years ago, but I frankly have a high opinion of him."

Lloyd Oliver, the onetime election opponent who jarred McSpadden with the college butt-biting revelations, says the judge has mellowed somewhat since his early days of fire.

"Frankly, he's one of the better judges on the bench, and that comes from this old archrival," Oliver laughs. "I've seen him on the bench make some decisions shooting from the hip, and they were good shots."

Even former foe Rains waves aside questions. "Any past differences between us are ancient history," he says.

Officials of the Republican Party did not return calls, although one party operative described McSpadden as a victim of his own making.

"When he got appointed 20 years ago, he was a young guy and it was a big deal to be judge," the GOP loyalist says. "Now he's an old man, and there are all these whippersnappers in there, and it isn't so big a deal anymore. He's got to be asking himself, 'Why am I still here?' He's a little resentful. Maybe he feels like he stayed too long at the fair."

An attorney who clashed with McSpadden accuses him of blatantly abusing judicial canons against judges criticizing other jurists. This critic goes on to say that beneath the gentlemanly exterior is a publicity-mad egotist, both vicious and calculating in his rhetoric. "For all his talk about principles, he goes after people because of personal animosity, not principle."

Asked why there hasn't been mass outrage over such antics, the attorney says only, "I guess the lawyers are afraid of him. McSpadden carries grudges for a long time."

"You live by the publicity, you die by publicity," says the adversary, who insists on complete anonymity. "McSpadden's hoisted himself on his own petard."


As eager as his opponents are to write his political obituary, McSpadden hardly seems ready to oblige them -- or even to ease up on his attacks.

Last year regional Republican officials drafted a letter designed to pressure a three-judge regional appellate panel into reversing its position against the state's sodomy law. McSpadden jumped into the fray.

"You seem to have taken the 'bully pulpit' to a new low," the judge wrote to Harris County GOP chairman Gary Polland. "Hope you understand that if you ever threaten me over a judicial ruling, you may be leaving my office head first."

Hints of détente are equally dashed with the response to a simple question about the all-Republican Texas Court of Criminal Appeals, which rules on how he conducts cases. McSpadden says he was troubled when the earlier Democrat-dominated appellate judges went overboard on finding technicalities to reverse convictions.

"Now they are way too far to the right," McSpadden says. "I don't want anybody looking for ways not to reverse me. If there's a reason I should be reversed, then I should be -- plain and simple."

He swears he won't be trying to advance to that court. "I wouldn't run for anything," he says. "I hate politics. I'm always embarrassed when people come up and say, 'Gosh, Mike, you've done so well. You are such a good politician.' I'm a judge who has to act like a politician once every four years."

McSpadden hardly seems like someone in a GOP-induced Siberia. His name regularly graces the society column coverage of charity benefits. He can condemn Republican positions and still stroll onto the tennis court for charity doubles matches with the Bush family. On the personal front, he's been an active bachelor since 1994, when his childless marriage of 12 years to Susan Spicer ended amicably.

His campaign to cleanse the judiciary of politics continues unabated. Other judges have come to expect the annual election-season letters from McSpadden, urging them to avoid taking contributions from attorneys or bail bondsmen or others with interests in their courts. Only a handful have followed his lead over the 15 years, but that doesn't stop the letters. Or the occasional broadsides from his bench.

 

"I don't think he's afraid of what people are going to think," prosecutor Davidson says about McSpadden's appeal. "I think he's one of those who has a knack for saying other people's thoughts. Others might think something and not say it because it's politically incorrect -- Judge McSpadden will say it."

He argues separation of the judiciary from politics, even as the Republican Party completed its purge of Democratic judges last November. "It will take a governor who is more concerned with making sure we have the finest judiciary, rather than answering to a political party," McSpadden says. "All the governors to this point have been guilty of strict partisanship."

As doubtful as it may be that change will come, his crusade at least has given him the kind of independence he's long advocated for all judges.

"They'd have a helluva time trying to beat him," says Judge Shaver. "He's second only to Ted Poe in name ID, and the public's loved his stances. I don't think he needs to be worried."

Voigt is equally impressed. "He doesn't play all this political bullshit -- my hat's off to him for that."

"He's obtained his own independent base of support, so he doesn't need the ward heelers and the hacks to stay in office," attorney Jones says. "I'd rather somebody be that way, regardless of their judging abilities, than be beholden to political operatives. He's his own man."

It is the kind of survival that could make Jesse Bushyhead proud, even along a Trail of Tears.


Sponsor Content

Newsletters

All-access pass to top stories, events and offers around town.

Sign Up >

No Thanks!

Remind Me Later >