ABA Journal


Legal Ethics

Judge texted during trial to help state, says ex-prosecutor

Jul 9, 2013, 11:00 am CDT


Come all you defendants who's feelin' scared,
Of a former prosecutor who badly erred,
Kaycee Jones was the lawyer's name,
By a serious misstep she won her shame.

She heard from a judge and she copied that text,
God only knows what she may do next,
In the wheels of justice she chucked a wrench,
But now in Texas she is on the bench.

By B. McLeod on 2013 07 09, 12:27 pm CDT

Things like this are bound to slip through the cracks when you have 3.2 million judicial circuits.

By NoleLaw on 2013 07 09, 4:09 pm CDT

Judge Horton had an an answer ,

By Docile Jim Brady – Columbus OH 43209 on 2013 07 10, 4:01 am CDT

Of course looking at the insipid, suggested line of questioning, I am sure Judge Coker then sanctioned the prosecutor for asking the questions that Coker had suggested. The baby pooped on him?

By pablo on 2013 07 10, 9:53 pm CDT

I feel Judge Coker's pain here. All of us have watched an inexperienced attorney hashing up a case and wanted to intervene. ...And when a child's safety is at stake, the urge must become unbearable. At least for Judge Coker.

By Big Papa on 2013 07 12, 2:08 pm CDT

I don't know about Texas, but in New Jersey and Pennsylvania, a judge is allowed to ask questions of any witness during trial. The jury would then be given an instruction that the court's questioning of a witness should not be considered in determining the overall credibility of a witness and that the Answers given should be judged by the same standard used to judge all testimony. That being the case, if the judge was so hell bent to have certain questions asked, why didn't the judge just ask them and not go through an intermediary? Inasmuch as the case resulted in an acquittal, maye the judge was attempting to assist the defense!

By MJnevtS on 2013 07 12, 2:56 pm CDT

MJ, Federal Court judges can question a witness here in Texas, but not State Court judges. The system is entirely adversarial. The more paternal approach of judicial evidentiary engagement is rare in the southwest.

By Big Papa on 2013 07 12, 3:19 pm CDT

Texas Rules of judicial Conduct 2A: " A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and IMPARTIALITY of the judiciary."

My does the judge get off telling the DA how to prosecute the case? This conduct is a violation of the Texas Judicial Code...period. Coker needs to resign. Jones too. These two are "sorry" and only admitting these violations because they were caught otherwise they are just two more Texas judges bent on helping the prosecution obtain convictions. You cannot have any confidence in an impartial judiciary with judges like these two......

By WINGCMDR on 2013 07 12, 6:34 pm CDT

In California, a judge is permitted to question witnesses. And there is a similar instruction that "Nothing I have said or done should influence [the jury]...." But if such is not permitted in Texas, then a judge who does so, either directly or through an intermediary, should be subject to appropriate sanctions. When that intermediary is a lawyer (now also a judge), that lawyer should also be subject to sanctions. But what is likely to happen to these paragons of the bench? Not a blasted thing.

I had a case once where the judge did his level best to assist the prosecutor in getting a conviction. It felt so very sweet when the Not Guilty verdict was read. And the look on both of their faces--priceless.

By Faulhaber on 2013 07 12, 10:42 pm CDT

Yep! It's improper, but I once stood in a district court in Harris County (Houston) and watched the judge cue the prosecutor verbally with the proper objection - which, of course, she promptly sustained when it was made. I was just a youngster at the time, and I was appalled. But that's when I thought that judges knew the law and were neutral arbitrators.
Given how our courts have defined reversible error [reverse if and only if the federal courts will reverse for Constitutional violations - the cynic's interpretation] and what the Judicial Standards Commission is perceived to do, this is just a tempest in a teapot.

By George Renneberg on 2013 07 12, 10:54 pm CDT

This story reminded me of the time I was in my office when my secretary told me that a particular trial judge was on the line for me. When I picked and said hi, all I could hear was the judge kind of whispering. When I said I could not hear him he said it was because he was on the bench in the middle of a criminal trial and had a question for me. Without telling me which side had cited the particular case to him, he wanted to know if that was "really" what the case held. When I said 'yes, judge that's correct," he said thanks and before he hung up I heard him say 'sustained.'

By Fnlawyer on 2013 07 13, 12:03 am CDT

I've said it before and I'll say it again, I do not believe that State Bar Associations should have the responsibility of policing attorneys, or judges. This should be left up to the courts alone. Call me a libertarian. Call me jaded on the lawyer profession. Call me biased toward judges, who have to be balanced, who've seen it all, while learning to manage their calendars, learning how to appropriately value time.

Just don't call me late to supper.

By Tom Youngjohn on 2013 07 13, 10:50 pm CDT

"Jones adds, "I deeply regret that I acted in this manner. It was wrong and I knew better.""

Scary Bar Associations will ALWAYS get lawyers to testify against each other, to say things they might not actually believe. The defendant was acquitted. So what? In immigration court Immigration Judges interrupt counsel all the time to ask their own questions.

Y'all are nuts.

By Tom Youngjohn on 2013 07 13, 10:54 pm CDT

Is there really a difference between the judge texting questioning and a judge showing his detest for an attorney in front of a jury because he wants the other side to win. Even worse, what if a judge turns to the mic and breaths heavily in a boring fashion when an attorney is making a closing statement. The sigh was big enough for the jury to hear and the for jury to realize the judge didn't like the argument. This was an employment discrimination case, and he was is a Bush appointee.

Judges do little things all the time to push for one side or the others. So, it shouldn't be a surprise. However, it should be stopped.

By Ann Clark on 2013 07 16, 3:47 pm CDT

@ann Clark: yes there is a difference. When a judge demonstrates his or her detest for an attorney in front of the jury or breathes a heavy sigh to reflect boredom with the speaker's closing argument, this is all done on the record and is available for appellate review. In Judge Coker's case, it was done stealthily and in a deceitful manner which would never be known by the appellate record and thus, possibly subject to reversal. What Judge Coker did is far, far worse and, IMHO, is sufficient cause for removal from the bench.

By fnlawyer on 2013 07 16, 4:26 pm CDT

Calliny y'all nuts, that was a mistake for which I apologize. Reading fnlawyer's post in the context of Ann Clark's post makes me realize that what the judge did was wrong, and, I have to admit, was intentionally sneaky, so the judge knew it was wrong. So, well, maybe I was wrong. I'm wrong a lot of the time, I tell you.

That being admitted, I'd love someone cut and paste the rule(s) about judges themselves being able to question witnesses, in state versus federal court. Is it allowed? What are the limits? I think this is relevant to the article above, because apparently it is not allowed. Or it is frowned upon. Clearly the judge did not feel comfortable asking any questions. Immigration Judges ask witnesses questions often. This has been my experience for the past 18 years. Not only do Immigration Judges ask witnesses questions, at will, they are also the judges in immigration ethics proceedings, in a big way since 2009, when EOIR bumped up the rules comparable to the Rules of Professional Conduct (except with no attorney/client confidentiality.)

I'd love it if someone summarized the state vs federal rules about judges themselves being able to question witnesses. Thank you in advance if anyone bites.

By Tom Youngjohn on 2013 07 16, 4:55 pm CDT

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