by Matt Clarke

In 2009, former Harris County, Texas state district judge Woodrow “Woody” Densen was caught on surveillance video keying a neighbor’s car, causing significant damage. The video received widespread media coverage. He pleaded guilty to a misdemeanor charge of criminal mischief and agreed to pay a $1,500 fine and over $6,000 in restitution. [See: PLN, June 2010, p.50; Aug. 2009, p.1].

Six months later, in October 2010, the State Commission on Judicial Conduct (SCJC) imposed disciplinary sanctions on Judge Densen: It gave him a public warning.

The slap on the wrist that Densen received was infinitely more discipline than the SCJC meted out to the vast majority of judges who were the subject of complaints. Less than 4% of the 1,192 complaints against judges received by the SCJC in fiscal year (FY) 2011 resulted in any disciplinary action.

For example, on August 4, 2011, PLN managing editor Alex Friedmann filed a complaint with the SCJC against Angelina County Judge Derek C. Flournoy, related to comments made by Judge Flournoy in a criminal case. Following a sentencing hearing, Flournoy was quoted in a news report as saying to the defendant, Marco Sauceda, “I haven’t heard from you and I have no idea why you didn’t speak [at the sentencing hearing]. That causes me some trouble.”

According to Friedmann’s complaint, “In drawing a negative inference from Mr. Sauceda’s decision not to testify or speak, Judge Flournoy ran afoul of over four decades of Supreme Court jurisprudence that prohibits courts from penalizing or drawing negative inferences when defendants exercise their Constitutional right not to speak or testify.” The complaint noted that the Supreme Court had specifically addressed this issue in Mitchell v. United States, 526 U.S. 314, 330 (1999), and the Texas Court of Appeals had acknowledged that defendants have a right to remain silent during sentencing hearings in Lucero v. State, 91 S.W.3d 814, 816 (Tex. App. 2002).

Regardless, the SCJC declined to take any disciplinary action against Judge Flournoy – a typical outcome for most complaints filed against Texas judges.

“Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” said Earl Musick, president of the Harris County Criminal Lawyers Association. “And it’s very secretive if anything ever does happen.”

“Our judicial conduct commission has operated as a kind of black box,” added Andrew Wheat, research director for Texans for Public Justice. “All but the worst punishments of judges for all but the worst abuses are kept secret from the public,” he said.

Musick and Wheat are correct. Of the 31 SCJC complaints resulting in disciplinary action in FY 2012, most – 24 – were “private,” leaving few traces in the public record regarding details of the underlying allegations. Not even the names of the judges who received private sanctions were disclosed by the Commission.

In FY 2013 the SCJC imposed discipline on 24 judges. Only one was public – a warning issued against Aransas County Judge William Adams on September 4, 2012. Adams, who also received a one-year paid suspension by the Texas Supreme Court, was videotaped viciously beating his then-teenage daughter with a belt in 2004. The SCJC found that the video “cast reasonable doubt on his capacity to act impartially as a judge.” Adams remains on the bench.

One recent private sanction was imposed by the SCJC on September 23, 2013 against a judge who touched a female employee “and/or made comments to her that he knew, or should have known, she would find offensive.” Further, the judge “ultimately entered a plea of nolo contendere to criminal charges that were filed against him.” In spite of the serious nature of the misconduct and the filing of criminal charges, the judge, who received a private reprimand, was not identified.

The SCJC has claimed that criticism of the Commission’s secrecy when imposing private sanctions is unfair because its mission is to protect the public, not to discipline judges – although those objectives are not necessarily mutually exclusive. SCJC officials also cited confidentiality provisions in the Texas Constitution and state statutes.

“We don’t see it as our role to remove judges or to publicly discipline judges in the situations where it’s not really warranted,” said SCJC chairman Tom Cunningham. “On the other hand, I think our record bears out that we are not here to protect judges.”

Cunningham noted that the SCJC does not review judicial rulings, which is the job of the appellate courts. The Commission also does not act on complaints that are political in nature or filed for political purposes. Finally, it believes that since the person filing a complaint can remain anonymous, baseless allegations should not be part of the public record.

Critics counter that the lack of transparency at the SCJC is contrary to the public and open nature of the court system. It also allows repeat judicial offenders to escape scrutiny if individual complaints are kept secret, and makes it difficult to determine why some judges are disciplined more severely than others and whether the SCJC is imposing discipline consistently.

“We’ve got the very best judiciary in the nation,” Musick said, with no small measure of sarcasm. “They don’t ever do anything wrong.”

Justices of the peace tend to receive a disproportionate percentage of complaints. Of course there are more justices of the peace than any other type of judge in Texas, and the fact that they are not required to have a law degree leads to many errors.

“There are almost 4,000 judges in Texas, half of which are not attorneys,” according to SCJC executive director Seana Willing. “So, we have some education limitations that we try to address.”

Willing claims that most of the SCJC complaints that are sustained relate to clerical issues, such as not using the most recently updated legal forms. In such cases, she argues that providing additional education and mentoring, rather than public humiliation, appropriately corrects the problem.

“We’ve done our job, by protecting the public,” Willing said. “The fact that it was done privately does not harm the public.”

“It’s a rare thing to come across a bad judge or a judge who is acting in bad faith or criminally,” she added. “But those are cases that find their way to us and we address them.”

Of course Willing’s assertions are impossible to confirm due to the secret nature of the private sanctions imposed by the SCJC, which don’t even mention the judges’ names.

“The public wants to know about its servants, its judges, its leaders, its legislators – and they’re entitled to know,” Cunningham acknowledged. “The question is ‘what is the proper balance to maintain the integrity of the judicial system?’”

Perhaps the question should be, “how can the integrity of the judicial system be maintained by covering up the incompetence, corruption or lack of education of judicial officials?” Doesn’t the public have a right to know whether elected judges are performing their duties competently – and ethically – while in office?

The SCJC apparently doesn’t think so; Willing told state senators in February 2013 that the SCJC intended to oppose a proposed bill that would make public some of the Commission’s confidential documents and meetings. Thus, it appears that the SCJC is more interested in hiding private disciplinary sanctions against judges under the guise of “maintaining the integrity of the judiciary,” rather than publicly disclosing complaints concerning incompetent, unethical or corrupt judges.

The legislation, Senate Bill 209, was passed by the Texas legislature and signed into law on June 14, 2013. Although it requires the SCJC to hold an annual public meeting, to provide certain records to the Sunset Advisory Commission and to explain “in plain, easily understandable language, each reason the conduct alleged in the complaint did not constitute judicial misconduct” for complaints that are dismissed, the SCJC can still issue private sanctions and withhold details concerning such disciplinary actions from the public.

“If you have judges who are not publicly sanctioned but are sanctioned in closed meetings it doesn’t give the public the ability to evaluate whether those judges are doing a good job,” noted state Rep. Rafael Anchia.

Further, even if the SCJC decides to publicly discipline a judge, that decision can be overturned. Consider the case of Texas Court of Criminal Appeals Presiding Judge Sharon “Killer” Keller, whose September 2007 decision to promptly close the court before a late death penalty appeal was filed, resulting in the execution of Michael Richard, led to a firestorm of criticism and numerous judicial complaints. The SCJC issued a public warning to Keller on July 16, 2010, finding that her conduct was “clearly inconsistent with the proper performance of her duties as a judge of the Court of Criminal Appeals.” [See: PLN, Sept. 2010, p.20; Aug. 2009, p.34].

However, a special court of review dismissed the SCJC’s public warning against Keller in October 2010, finding the Commission was not allowed to impose that type of disciplinary sanction.

“So much for the public’s confidence in the integrity of the judicial system,” Jim Harrington, an attorney with the Texas Civil Rights Project, stated at the time. “It says that judges protect their own.”

In an unrelated matter, on August 13, 2013, Keller agreed to pay $25,000 to settle a $100,000 fine for an ethics violation after the Texas Ethics Commission found she had failed to disclose all of her personal finances. She was not disciplined by the SCJC in connection with the ethics violation.

“I represent lawyers, doctors, teachers [before other occupational boards], and it’s all public,” said Musick. “But with the judicial conduct commission, the process is too protected. The public has no faith in the system anymore.”

Sources: Houston Chronicle, www.keranews.org, www.statesman.com, Associated Press, SCJC complaint concerning Judge Derek C. Flournoy

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