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The unashamed attempt of a presiding judge to advise prosecutors on strategy via text message in a Texas court has garnered national attention over the last 6 months. But much less has been said about the role of the assistant district attorneys involved in the incident.

The Houston Chronicle recently obtained a copy of a letter sent by former assistant prosecutor Kaycee Jones to the State Bar of Texas, in which Jones confesses to passing on the text message of a Polk County judge to the lead prosecutor at a criminal trial.

Judge Elizabeth Coker sent the text message during the trial of David Reeves, a defendant charged with injuring a child. In the message, she apparently suggested that the state ask witnesses what Reeves was capable of, given that he allegedly threw a puppy off his bed after it urinated. A Polk County investigator who was observing the trial, David Wells, was interrupted when Jones asked him if she could use his notepad. He watched as Jones wrote the following message:

“Judge says… baby pooped on (Reeves) – if he threw a dog off the bed because the dog peed on bed what would he do if baby pooped on him?”

Jones then passed the note to lead prosecutor Beverly Armstrong. Though Armstrong didn’t use the line of questioning, Wells and first assistant prosecutor Joe Martin apparently felt that the communication was “very unethical” and Wells subsequently filed a report with the District Attorney’s office.

Upon receiving the report, Polk County District Attorney Lee Hon rightly recognized that an investigation was required. But he declined to have the investigation handled by a special prosecutor from outside the office, and instead handled it himself. He found that the communication did not have an adverse impact on the outcome of the case (Reeves was acquitted).

Hon’s finding is too narrow to address a number of outstanding questions about the incident, such as:

1) Whether Beverly Armstrong’s contention that the judge was regularly interjecting herself into trial proceedings via text messages was accurate, (Hon found that Armstrong was unable to substantiate this, but a local attorney points out that we still haven’t seen the phone records);

2) Why ADA Jones passed the message onto Armstrong even though she now says she was wrong to have done so and “knew better,” (Hon says he has taken “administrative steps” to prevent future occurrences like this, but has not addressed whether his staff similarly engaged Coker in other cases before these steps were taken);

3) Why, as Grits for Breakfast notes, neither Armstrong nor anyone else from the prosecution team at Reeves’s trial raised the alarm that a sitting judge was engaging in such behavior.

More is required from District Attorney Hon’s office. This sort of conduct undercuts the core assurances of our adversarial system; strong, transparent leadership from every corner is needed to repair the damage. The situation warrants an investigation that will answer lingering questions about the role of Hon’s staff in the incident, and in other incidents if they occur. Hon also needs to explain how he will ensure that his office will not aid and abet such unethical conduct in the future.

The Houston Chronicle reports that the Texas Defense Lawyers Association is conducting its own review, as is the Texas Bar Association’s Office of Disciplinary Counsel.  The Chronicle is also calling for the State Commission on Judicial Conduct to offer swift action against Judge Coker and former ADA Jones, who has since been elected state district judge for Polk, Trinity and San Jacinto counties.

Hon said he expects the case to be reviewed by the State Commission on Judicial Conduct. But a judicial commission investigation would only address the conduct of the judge involved.  For the reasons outlined above, a more comprehensive investigation is required. Hopefully the Bar Association will answer the call if Hon won’t.

 

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