Open Season on Open Seats

If last week's primary elections proved one thing, it's that having a reputation for being tough on crime and criminals is a plus, especially if you're running for a criminal court judgeship. Last Tuesday, seven working prosecutors on the staff of Harris County District Attorney John B. Holmes Jr. competed for a chance to be in this fall's general election for criminal court positions. Six of the seven won their party's (Republican, mostly) nomination, and the one who didn't make it lost in a squeaker.

And if last week's primary elections proved another thing, it's that it's nice not to have strong competition. Of the county's criminal court judges who wanted to keep their posts, not one had to face a working prosecutor. And when this fall's election comes around, the judges will again get a bye when it comes to prosecutorial challenges. The prosecutors have only entered races where -- generally because a judge has decided to retire -- the judgeship is open. Why? Well, because John Holmes told his people that if they wanted to move up the ladder, fine. But if they wanted to move up the ladder by pushing aside a sitting judge, not so fine. They'd have to quit their job.

Actually, for the prosecutors this was a step up. In previous elections, if they wanted to run for any office at all they had to say goodbye to their paycheck. "The rationale for [Holmes'] change was prosecutors don't really get paid very much money," explains former prosecutor Cathy Herasimchuk, who served as an assistant Harris County D.A. for four years. "Prosecutors basically have been shut out of the process of being able to be considered for a judicial position through the election process. It's the kind of thing where [you had to ask], was it fair to penalize prosecutors and make them ineligible to run just because they are prosecutors?"

Holmes' rationale for letting his staff run for judgeships only if they didn't threaten to kick a sitting judge off the bench was that there might be problems if a D.A. had to try a case in front of a judge he was running against. Aside from the notion that any judge who would rule differently because a D.A. was facing him in an election might be a judge who should be replaced, some legal experts wonder just how reasonable Holmes' position is.

Criminal defense attorney David A. Jones is one who thinks that having D.A.s run for any post while still on the public payroll is a bad idea. "They're still handling cases, some that will come up again," Jones notes. And if as a judge they face a case they'd worked on as a prosecutor, he says, there could be ethical problems. One judge at the criminal courthouse, who asked to remain anonymous, agrees somewhat with Jones. "There may be some problems that occur because of [the open-seat policy], but I understand, overall. They're just trying to get ahead. [The D.A.s] are qualified."

While not dealing with the question of whether the open-seat policy ends up protecting sitting judges, Eric Hagstette, a ten-year veteran of the D.A.'s office now in private practice, wonders if Holmes' policy really covers all the bases. What happens, he asks, if a judge who has created an open seat by deciding to retire suddenly dies, or has to retire early? In that case, the governor could immediately fill the seat, and the new appointee might decide to try to hold on to the position. So what happens to the prosecutor running for that office? Does he have to quit the race, or quit his job?

"It very well could happen," says Hagstette. "So I don't know if the policy answers all the questions.


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