Friday, January 15, 2010

Follow up to Judge Lynch interview

For anyone who missed it, here is the interview I did with Judge Mike Lynch, posted earlier this week. It provoked some great comments, and one person asked a great and very fair question, which I shall try to address (and Judge Lynch himself will respond to at a later date):

"In Texas we have a system that allows defense attornies [sic] to make political contributions to help judges get elected. Tell me how you can be objective when the defense attorney appearing in your court has been instrumental in getting you elected and lives in your neighborhood. As the father of a murder victim I find that very troublesome."

First of all, my condolences on your loss. I have dealt with a number of parents who have lost children to those committing crimes, from murder to DWI. Their pain is real and trying to bring them a measure of justice and some sort of closure is one of the main reasons I do this job.

Second, moving on to your question, I think there are a number of possible responses. No doubt I'll miss some, and feel free to take issue with those I do mention.

  1. Most, if not all of the judges I have met do what they do for the same reasons I do my job: they have a deep respect for the law and believe that by its proper implementation wrongs can be righted, to some degree anyway. This means that a donation three years previously, or even a week previously, by one defense lawyer will not alter a fundamental belief that they are on the bench to do the right thing, as best they can. Judges, in my view, simply aren't that malleable.
  2. Defense attorneys, like prosecutors, appreciate a fair and knowledgeable judge. We really do. The best thing I can say about the two judges I have practiced in front of here is that they are fair and know the law. Look at it this way: what would happen if a judge sided with the defense lawyer no matter what? First, he'd lose all respect around the courthouse and that does matter. Second, more importantly, he'd find a lot of his cases being bounced back by the court of appeals. And believe me when I say that matters even more! Judges like to get it right and hate to be reversed. And the only way to get it right is to apply the law evenly and fairly.
  3. The donating of campaign funds is only one measure of potential influence. Remember, I practice in front of the same judge day in and day out for months, even years. A defense lawyer, or defendant, could counter your concern by saying: "Jeez, those guys know each other and work together every day. Totally unfair."
  4. There is also the practical effect of incumbency. No judge I know is ever complacent about their position but it's a truth that a sitting judge is hard to remove in Travis County. I know of only one instance in the criminal district courts in 20 years (coincidentally, Judge Lynch replaced a sitting judge). This means that the potential effect of a campaign contribution is even further diluted - if the defense lawyer doesn't like a ruling and stops contributing, it doesn't matter too much.
  5. Prosecutors get to contribute, too. I think. Never done it myself because I have three little kids and don't make enough to be giving it away but as far as I know, we are allowed to make contributions, too.


  1. Some valid points, but I have to disagree with #2. The State has little right to appeal and Judges take advantage of that. I see this happening much more frequently on the County Court level than on the District Court level (blame it on the seriousness of the cases I suppose). County Court judges seem to hand out favors and lean towards certain defense attorneys, knowing the State can't appeal them in most instances (or won't because of budget restraints). This certainly leads to unfair trials. Thoughts? Is your opinion based mostly upon District Court experiences?

  2. I think that #5 is part of what the commenter is getting at. Private defense attorneys are in a much better position than a prosecutor (or public defender for that matter) to contribute substantially to a campaign. There have been incidents where judges ruled inappropriately, often many times. Although these incidents always make the news, I believe that most judges take their responsibility to be impartial very seriously.

  3. OTOH, "prosecutor" is far and away the most common background among district judges, according to the Office of Court Administration. That's even more true on the Court of Criminal Appeals, where the presiding judge campaigned for office by declaring herself "pro-prosecution." (Imagine a comparable family court judge who ran for office as "pro-husband.") So I think it's safe to say the electoral process hasn't unduly harmed prosecution interests!

    A bigger concern may be when an ADA is running for judge, should they accept contributions from lawyers on the cases they work? Should a defense attorney really be negotiating a plea deal then hand the same attorney a campaign check when they're done? The Dallas DA implemented a resign-to-run policy because of that alleged conflict. Personally, I think until we move to appointed judges, it's an unavoidable problem and the fix (reducing the already meager candidate field) is more harmful than the ailment.

    Finally, while it's true workaday prosecutors as a class don't contribute much to campaigns, the police unions pick up that slack quite nicely and elected DA's have an automatic megaphone with the press. Campaign contributions are just one way to influence races, and in these downballot elections not always the most important.

  4. Grits, leave your liberalness back on your own blog. The truth is that there is no good answer for the victim's question. The truth is that a judge on some level will give some favor to the donor.

  5. "The truth is that a judge on some level will give some favor to the donor"

    That's really a false and ignorant statement. When Mark points out, "I practice in front of the same judge day in and day out for months, even years," that's a level of influence with the court that no campaign contribution could ever buy. That's why they do it that way instead of just assigning prosecutors to the next case that comes up.

    Judicial appointment systems have problems with political influence, too, just different ones. A judge who's elected independently at least has the potential to be their own person. But chief executives can appoint cronies and hacks if they choose, and sometimes do, with awful results. There are pros and cons to both approaches, but if you're going to have elections, campaign contributions are a necessary evil.

  6. Thank you all for your responses which, naturally, were directed toward the majority of cases. However, I am only interested in one case so I should have made my question more specific: How do I make sure that my one case is handled objectively in light of the defense attorney's having made substantial political contributions to both the judge and the district attorney? Would a simple letter to both be appropriate or do I need to make my own political "contribution" - an offsetting bribe in my view.


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.