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?' "
The chamber conferences are not the only point of dispute between the D.A. and the judges. Shaver says the local judiciary has "spent years protecting Holmes from some of his own policies." He cites the D.A.'s ironclad rule that his prosecutors cannot recommend probation for a defendant charged with burglary of a habitation.
"Now, hundreds of times over the years, the prosecutors will let the court know, all on the up-and-up in the presence of everyone else, that they believe the remedy for the case, based on the facts of the case, is probation, but they can't recommend it," explains Shaver. That leaves the judges in the position of probating a defendant's sentence, while allowing the D.A. a sham policy that makes him look tougher on criminals than he really is. Shaver says the brouhaha over backroom conferences is equally spurious.
Holmes contends that if the judges must discuss cases with lawyers, they can do it at their benches in the courtrooms. Since bench discussions are usually conducted at a whisper level and are inaudible to courtroom audiences, Shaver claims that makes nonsense of the D.A.'s point that observers need to hear those conversations.
The loser in the squabble between the D.A. and the judiciary over in-chambers conferences is the public, claims Shaver. Court dockets will get longer and the jails will fill as taxpayers foot the $45-a-day bill as defendants await trial. Shaver figures Holmes is intruding into a policy area when he should mind his own operation.
"I don't go over to [Holmes's] office -- though at times I think I should -- and tell him how to run his business," says Shaver. "And he doesn't need to be coming over here and telling me how to run mine."
Holmes is equally unswayed by the judicial arguments against his policy. "This is my rule," declares the D.A. "The rule is based on what I think is a solid foundation.... Anybody who doesn't like it can go kiss my ass."
In a Huff
One of Mayor Lee Brown's major downtown political supporters has his dander up over an alleged snub by new City Attorney Anthony Hall. Fulbright & Jaworski law partner Richard Huff met with the mayor earlier this month to vent about Hall's alleged failure to show the firm the proper respect.
Huff was an early contributor to the Brown campaign at a time when most of the big downtown law firms had tilted toward opponent Rob Mosbacher. He did not return an Insider phone inquiry to clarify his beef with Hall, but one veteran lobbyist claims the city attorney had shifted city bond issue legal work away from F & J, triggering Huff's protests to the mayor.
Hall flatly denies that the firm had lost any work at his direction, and wonders whether Huff is suffering from a case of deflated political expectations after his man won the mayorship.
"Candidly, I also understand it is their feeling that as a [Brown] supporter, their business should have been enlarged some kind of way," says Hall. "I've been here three months and the mayor's been here four. I have not changed any of the basic representatives on our financing deals."
Huff complained that his firm was cut out of a $120 million bond issue where the bond counsel role went to rival Mayor, Day. In that issue, a Dallas-based law firm, Gardere, Wynne, Sewell & Riggs, also received a role. Assistant city attorney Susan Taylor says the recommendations came from staff, not from Hall.
Hall says he doesn't know "what Huff's bitch is.... Fulbright is in three of the goddamn five."
Hall goes on to say that he suspects the firm's real gripe with him has to do with a request by Jarvis Hollingsworth, a Fulbright & Jaworski attorney, for a meeting with the city attorney. Hollingsworth wanted to talk to Hall about getting Fulbright & Jaworski involved in representing the city in litigation, an area of city legal work the firm has not previously done.
Hall declined, and now says the meeting would have been a waste of time because the city rarely hires outside counsel. He says that when it does, he's already familiar with Fulbright & Jaworski and will keep them in mind. He also thinks another political agenda may have been at work.
Hall claims Hollingsworth promoted himself for the city attorney position before the mayor appointed Hall -- the former councilman and Metro chairman -- and may still think he carries special weight with the administration. "My sense is that it may be part of some expectation," says the city attorney. "I don't know." Hollingsworth did not return an Insider phone inquiry.
One thing Hall is certain about is that he doesn't like the way Huff has handled the matter. "If you think they're about to piss me off, they are," he says. "They haven't been mistreated at all."
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