Shame, Shame, Shame
Ted Poe, the judge who deals every day with junkies who can't kick their habit, is not given to doubt. At least publicly.
But maybe, just maybe, at three in the morning sometimes, a terrible dream comes to him.
He stands penitently in a dark courtroom. There are no reporters present. There are no TV cameras.
He is in front of a judge. The judge does not wear cowboy boots. He does not emphasize his Texas twang, because there are no crews from the BBC or French television here to impress.
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"Son," he says gently to Poe, "you have a problem. An addiction. Do you understand that?"
"Yes, sir," Poe says.
"You can't stay away from the spotlight, can you? You can't go a month without making sure you're in the papers or on TV, isn't that right?"
"Yes, sir. But I don't do it for myself, I do it for the betterment of the justice system -- "
"Son, I don't want to hear a speech," the judge interrupts. (Here the night sweats break across the dreaming Poe's brow.) "I have people in this courtroom every day blaming their addiction on anyone but themselves. Some crack addict will say his father never loved him. A heroin junkie will say he only does it so he can get through work. And now you're not addicted to publicity, you're only trying to help society."
"But Judge -- "
"Do you think that when you call every newsroom in town to tip them off that you've sentenced some poor shlub to carry a sign saying, 'I robbed this Kmart' that you're serving society?"
"Well, Judge -- "
"What's next? Forcing someone to make a public apology at City Hall in front of you, the press and bored bystanders?"
"Actually, Judge, I did that a couple of years ago."
"Well, Mr. Poe, your problem is more severe than I realized. I hereby sentence you to probation for ten years. During that time you are not to go on Oprah -- "
"But Judge -- "
"You are not to ostentatiously wear cowboy boots -- "
"Judge -- "
"You are to take down the 'I Don't Really Care How You Did It Up North' sign placed so prominently in your office for visiting reporters to see, and finally, Mr. Poe -- "
"What else, Judge? What else could you possibly do?"
"You are forbidden from casually tossing in the phrase 'Poetic Justice' in any interview with an out-of-town journalist."
At this point, with a start, Poe wakes up wide-eyed. He looks in the corner and sees his cowboy boots, he remembers the clippings that still adorn his office, and he realizes it has only been a nightmare.
There are 59 district judges in Harris County, whose names show up on the ballot every four years. The typical Houstonian would be hard-pressed to name any of them. But if there is one name he or she could come up with, it would be Ted Poe.
He's only 51, but in this day of younger and younger judges, he has served on the district bench longer than any other current jurist.
It's not his longevity that has made him a name, though. It is his own tireless efforts at publicity.
He has, indeed, appeared on Oprah, not to mention 60 Minutes, 20/20, and the British, French and German television networks. He has appeared in countless newspapers.
At first the media attention centered on Poe's penchant for such gimmicky sentencing as forcing a baggage handler who stole pistols from the guy who played the Lone Ranger to clean out the stables at HPD.
But in the past three years Poe has become the leading spokesman for what he calls "public punishment" and what others call "shame-based sentencing." Across the nation, shoppers these days may happen to walk by a glum guy parading in front of a store with an "I robbed this store and I'm sorry" sign. Other people convicted of crimes have to put up signs in their yards or on their cars or take out ads in the paper flagellating themselves.
There's a debate as to how effective all this is -- no real studies have been done -- but one sure result is that it gets a judge's name in the papers.
Poe is a fanatical believer that such publicity serves as both a deterrent to others and an effective rehabilitation tool to the offender. If the spotlight also happens to shine on the guy in the robe, well, Poe is ready to do his part.
And if that takes an Oprah appearance, so be it. If that means that Ann Landers writes a glowing column about you, it's part of the job.
And now Poe is considering a jump to a bigger stage. Legendary Harris County District Attorney John Holmes Jr. is not running for re-election in 2000; there is no doubt that the job is Poe's if he wants it.
"He wouldn't be so much elected as anointed," says one politically savvy lawyer.
"If Poe doesn't run, I'm thinking about running," says prominent criminal defense attorney Randy Schaffer. "But it's a waste of time to do anything about it until he decides, because if he runs, he clears the decks of everybody else."
Poe says he's thinking about it, and he doesn't have to decide until January 3. Being district attorney gives him a bigger shot at the spotlight, of course, but it also is a more bureaucratic position, with less freedom than that of a judge.
Poe at one point announced he was running for Congress but later backed out. He couldn't stand moving to Washington, he says; some grumble he couldn't take the idea of being a small fish in a big pond. But the D.A.'s office would require no such move, obviously, and after 18 years on the bench he might be getting restless.
What might surprise a lot of people is that the hordes of people urging him to run include a sizable contingent of defense attorneys, those who represent the people who get maxed out or pummeled in his court.
Under all the publicity-hungry, spotlight-grabbing antics, it seems, Poe -- much to the annoyance of those who sneer at his insatiable need for attention -- is a damn good judge.
In a criminal courthouse where just about every judge has come directly from the prosecutor's office, defense attorneys are constantly smarting from perceived bias against the defense.
Prosecutors get away with being unprepared, they say, they are allowed to present cases based on highly suspect searches, and the 100 judgment calls in any trial usually go their way.
Not in Poe's court. "He is one of the fairest judges down there in terms of the guilt/innocence stage," says appellate expert Brian Wice.
"He recently quashed two indictments for me and slammed the prosecutors for them," says defense attorney David Jones. "He really is a 'call it as I see it' guy."
"If it's a bad search, I'm going to throw it out," Poe says.
Once a defendant is found guilty, though, all bets are off. Poe revels in assessing the maximum penalties. Only the brain-dead defense lawyers choose to have Poe assess punishment rather than the jury.
"If you go to him for punishment, you're probably going to get a call from your malpractice representative," Wice says.
Poe's reputation for fairness, underscored by traditionally top-of-the-heap rankings in the local bar polls assessing judicial performance, was a surprise to many. He came to the bench in 1981 having already made a name for himself as a crusading prosecutor who never lost a jury trial in eight years and wasn't above grandstanding.
In one trial of a cop-killer, he read to the jury an imaginary Christmas card the dead officer might have written his young daughter. In the high-profile trial of two HPD officers convicted of negligent homicide in the drowning death of Joe Campos Torres, he loudly banged a police flashlight on the rail of the jury box to demonstrate the beating the cops had delivered.
He became famous for singing "Happy Trails" to defendants being escorted out of the courtroom to prison. He earned the nickname "Toothbrush" for his habit of tossing one to the guy he had just put behind bars.
And he earned the glowing press that would become another trademark. The headline on a 1981 Houston Post profile, just before Governor Bill Clements appointed him to the bench: " 'Toothbrush' Helps the Good Guys."
The profiles since then have all touched on the same highlights: a strongly religious upbringing in the Church of Christ, a childhood in Central Texas and Houston, a political science degree from Abilene Christian University and becoming a judge at the then-unheard-of age of 32.
After holding on to his seat despite being a Republican in a Democratic year in 1982, Poe has never had an opponent in either a primary or general election.
It didn't take him long to make his mark on the bench. In the midst of the recession that saw Yankees coming south for jobs, Poe sentenced a man accused of bringing a gun into the Summit to leave Texas and return to Michigan. Reporters lapped it up, citing Poe's fierce Texas pride, his office adorned with Lone Star memorabilia, his stationery highlighting the "I will never surrender" quote from the Alamo's William B. Travis. And the ever-present cowboy boots, of course.
He ordered probationers to help restore the Battleship Texas. He forced a hairdresser convicted of vandalism to cut hair at centers for the blind and mentally handicapped. He made other first-time offenders spend months in his courtroom, watching the proceedings.
Somehow the media dug deep and found out about all these things, just as they discovered -- on a Friday, generally the slowest day at the courthouse -- that Poe had wanted to begin a trial but couldn't muster up a jury, so he sent deputies to a shopping mall to shanghai people.
His fame began to spread. In a courthouse where every judge seems to have an autographed photo of some obscure astronaut who was called for jury duty, Poe's astronaut autograph is that of the reclusive Neil Armstrong. The wall also features Texas heavyweights Willie Nelson, Roger Clemens, Nolan Ryan and A.J. Foyt.
Poe's judicial brethren muttered to themselves a bit at his propensity for getting on television, but he has outlasted all his critics. The newcomers who serve with him now are no longer surprised by anything he does.
Poe makes no apologies for the carnival atmosphere his actions sometimes generate. Any publicity that shows the justice system at work is good publicity, he says. The public can relate easily to stories about criminals being forced to clean a historic cemetery or restore a rusted battleship, and can get a sense of justice being done.
Over time, the punishments Poe meted out began to take on an element that seemed based on shaming the defendant.
In 1994 a piano teacher who pled no contest to charges of fondling two preteen girls was forced to sell his piano and put a sign in front of his house for the next 20 years saying no children were allowed inside.
Three years ago Poe began to increase his use of what he calls "public punishments."
A wife-beater was ordered to apologize on the steps of City Hall, in front of his wife, Poe, police officers, baffled passersby -- and a dozen news cameras.
Since then 84 nonviolent first offenders have been ordered to carry signs in front of stores they've robbed, or apologize to co-workers, or otherwise inform the world what a wretch they are.
All but three of the 84 have stayed on the straight and narrow since then, Poe says.
He says, and attorneys agree, that he spends a lot of time interviewing defendants before deciding what conditions of probation to impose.
"It's usually a young, nonviolent first offender who is concerned about their conduct; they're concerned about what they did, and they're remorseful," he says. "They have an attitude you can work with. Some people just don't want to be bothered and say, 'Just go ahead and send me to jail.' The question I ask is can we work with this person and can they get their life together, because most of their lives are a mess."
The point of the public punishment, he says, is to make the defendant wake up.
"The reason for creative sentencing is to instill responsibility -- sending someone to a penitentiary doesn't do that," he says. "You have little Bobby Oglethorpe in front of you, and it's the most important day of his life. You've got to get his attention. You just can't hand him over to the probation department and let them take care of it."
Poe does, indeed, get intimately involved with many of his cases. If he orders someone to get a high school diploma, he makes sure they send him report cards along the way. His interviews with defendants before he imposes probation conditions can be lengthy; if the defendants' parents are in the courtroom, they're likely to get quizzed too.
Poe still manages to keep his docket as current as any in the courthouse. To some degree, that's because of his workaholic habits; it's also thanks to the fact that many of the "noncreative" sentences are doled out quickly. It doesn't take much time to put someone away for as long as the law allows.
Not everyone is completely enamored with the concept of shame-based sentencing, but the trend is definitely growing.
The atrium at Atlanta's City Hall features a "Wall of Shame" jammed with mug shots of convicted prostitutes and their johns. Drunk drivers in several counties across the nation are forced to wear colored wristbands denoting their crime. States such as Ohio, Oregon and Minnesota have special license plates for repeat drunk drivers.
And of course, there are the people forced to carry signs.
"I don't see the point of having someone stand around in public carrying a sign saying, 'I'm a jerk,' " says veteran legal activist James Harrington of the Austin-based Texas Civil Rights Project. "Maybe in one or two cases it might work, but it doesn't teach accountability as much as active community service does. If someone burglarizes a house, for instance, make them work for Habitat for Humanity. But carrying a sign saying, 'I'm a worthless toad' doesn't make much sense."
Poe, naturally, disagrees.
"The sign is not just for the benefit of the defendant; it's for the benefit of the community," he says. "People walk by and see it and they say to themselves, 'I ought not to steal, because it could be me carrying that sign.' "
Poe has become the poster boy for the trend. In 1997 he appeared on Oprah and in Ann Landers's column because of his sentencing of a 19-year-old who got drunk and slammed his van into another car, killing two people.
Poe gave him ten years' probation with the following conditions, among others: boot camp; erecting and maintaining a cross and Star of David at the accident site; carrying pictures of the victims in his wallet for ten years; observing the autopsy of a drunk-driving victim; placing flowers on the graves of the two victims on their birthdays for the next ten years; and carrying a sign outside a bar that reads, "I killed two people while driving drunk."
"I made him carry it on Christmas Eve, and he'll probably be carrying it somewhere this Thanksgiving, because the accident happened on a Thanksgiving Eve," Poe says.
Harrington wonders where all the shame-based sentencing is going. Even if Poe isn't motivated by publicity, other judges may be, and they'll have to think up more and more eye-popping sentences to get attention.
"These guys are all politicians," he says. "They run for election. They love it when there's a paragraph in The New York Times or something saying a guy has to put up a picture of a wrecked car in front of his house because of his crime."
Judges going too far in creative sentencing "is always a danger," Poe says. "It's always a problem if you go too far in any kind of sentencing. But some judges are too afraid to do something different."
He notes all his sentences have withstood challenges in the appeals courts.
There's no telling, of course, if Poe would, or even could, implement similar policies if he were the D.A. Judges, after all, are the ones who set the conditions for probation, although many simply sign off on whatever deal the prosecutors and defense attorneys work out.
Poe says simply that "a D.A. can do what he wants," whether that's trying the occasional high-profile case or serving mostly as an administrator. He's not saying much more about his possible run.
In fact, for someone so often in the media, Poe doesn't have a whole lot to say. Take him away from the Texas shtick and the public-punishment arguments and he clams up. He doesn't talk about his family. He doesn't expound at length on subjects he views as irrelevant.
Get an hour into an interview with him and he'll start drumming his fingers impatiently on the desk, saying, "You sure ask a lot of questions" and wondering where a questioner "is going" with talk about how judges seem obsessively docket-driven these days.
"He doesn't really have any confidantes that I know of; he always plays things very close to the vest," says Schaffer, the defense attorney who has been appointed to cases by Poe.
One thing Poe does want you to know, however: He does not care what people think about him. He says so four or five times. "What people think about me, I just don't care. If they like what I do, fine. If they don't, I don't care," he says.
Some attorneys and others raised an eyebrow recently at Poe's handling of the high-profile case of a Hispanic truck driver who killed four members of a West University Place family while driving drunk.
The jury gave the driver four 15-year prison terms; Poe, saying from the bench that the man had killed "an all-American family," stacked the terms instead of making them concurrent, in effect creating a 60-year sentence.
"The whole culture of sentencing based on the victim rather than the defendant is wrong," defense attorney Jones says.
You can ask Poe about the case and mention that it was the driver's first offense of any kind. "First four offenses," he'll growl.
A motion for rehearing is still pending, limiting what Poe can say about the case, but it's clear he feels he did nothing wrong. " 'All-American family' is something that can have many definitions," he says. "I know my motives were good....Not every first offender ought to be released back into the community. The jury first sent him to prison, not me. They gave him 15 years in each case, and they know the terms could be served consecutively. That was my call."
It's not the first time that Poe's sensitivity to minorities has been questioned. When he was in the hunt for a federal bench in the 1980s, FBI agents doing background checks asked about Poe's record on the matter, says one lawyer who was interviewed by agents.
Nothing solid ever emerged, though. Poe didn't get the federal seat, but that was because the big-firm civil lawyers, the ones who donate prodigiously to the politicians who choose the judges, always prefer that one of their own get the post rather than a criminal judge.
The drunk trucker was one of three high-profile cases Poe has presided over this year, including the Hindu priest accused of sexually abusing his followers and a cop-killer trial that was broadcast nationwide on Court TV.
For years there has been grumbling that Poe finesses the system to get these cases, or puts the squeeze on other judges to transfer such trials to him, but all judges lust after the big-publicity trials and wouldn't put up with much tampering with the random-assignment system.
For now the only question Poe is facing is where does he want to go from here. He can remain a judge and continue to be a proponent of his philosophy of deterring crime, or he can take to the bigger stage being vacated by Holmes.
Holmes and his mentor, Carol Vance, have held the office for 35 years or so, longer than most of the lawyers in town have been practicing. Defense attorneys would much rather see Poe in the job than a veteran of the current regime, hoping he'll shake things up.
"It would be the best thing that ever happened to the defense bar -- there would be the illusion of some sort of tough hombre on the job, while at the same time you would have someone who was the toughest disciplinarian of assistant D.A.'s," Jones says. "We would have the benefit of a guy whose actions on the bench show he's as tough on them as anybody in terms of demanding perfection and excellence. So the slackers who gum up the works and bring bad cases would be gone."
Schaffer, who might run for the job himself, isn't sure if Poe will seek the post. "He's very secure in what he's doing; he has a bird's nest on the ground," he says. "He's the king of the courtroom, and I don't know whether he wants to give that up and all the ass-kissing that goes along with it for the job of supervising 400 employees, some of whom will be found sniffing coke or hiding evidence. He's going to have to take the heat for all those people."
Poe, of course, isn't ready to divulge his intentions. Rumors that he already has a big-firm job lined up to tide him over during his run -- he'd have to resign his post once he files -- are just that, as far as he's concerned.
"I'm certainly thinking about it," he says. "People have asked me to run. I enjoyed being a prosecutor; it's a good job.But I've always enjoyed sitting here, too."
Of course, if he wins, another nightmare may take hold. He'll still be able to command the spotlight, picking and choosing the cases he wants to prosecute personally.
But another courtroom scene might haunt him. This time he's at the prosecution table, ready to call down the thunder of righteousness on this year's serial killer or cold-blooded murderer.
But now he's not the one giving the orders. Instead he's in the domain of another judge who runs the courtroom as he or she sees fit. With alarm Poe looks to see that somehow there are no cameras present. No one to record his melodramatic arguments for the evening news.
Oh, well, he thinks, I'll save it for a press conference outside.
"In this case," the judge says, "we'll be enforcing a strict gag rule...."
E-mail Richard Connelly at email@example.com.
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