Travis County Court at Law # 4 Election
I do not often speak out about my opinions on judicial politics, particularly in Austin, Texas, or Orange County, California, where I often personally know the candidates and have worked with them, side by side, or gone up against them in a proceeding.
My frustration lies when the public misunderstands the role of a judicial officer. All judicial officers should be impartial in the same way that any juror sitting on any type of case should be neutral. The primary role of a judge is to run a courtroom and a court's docket efficiently and effectively. It should never be to advocate for one side or another or one position or another. That is the role of the attorneys in the courtroom.
When a candidate for judicial office campaigns openly that he or she is an advocate for victims, it calls into question whether that individual has the temperament to sit impartially on the bench. The role of advocating for crime victims should remain with the prosecutor, victims' rights organizations, any attorney representing the victim, and the victim, him or herself, along with his or her support network. The role of the defense attorney is to zealously represent the accused. The defense attorney should always try to get the best result for his or her client within the confines of legal ethics.
This is particularly true in criminal cases where our nation's founders designed a system specifically to protect the accused from the State's overreach. The framers made their intent expressly known in Amendment VI.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
There is a place for victim advocacy in criminal cases, but that advocacy should not come in a robe. While there is undoubtedly a tension between ensuring that victims are heard and protecting the accused, the default position for everyone in the criminal justice system, including prosecutors, should be to protect the accused. (I have placed sections of the Texas Rules of Professional Conduct and the Texas Code of Judicial Conduct at the end of this post.)
Both Judge Malhorta and Margaret Chen Kercher are qualified to serve as a county court judge.
Judge Malhorta's credentials are impeccable and undeniable. She has been an attorney for almost 23 years and is an exceptional advocate. The issue is that she is aggressively campaigning for judicial office under the implied premise that this advocacy will continue if she is elected. (She is the incumbent based on an appointment by the county commissioners.) Irrespective of whether that was a campaign choice, her failure to clarify her position or her judicial role is tacit approval of the idea that she is first and foremost a victim advocate rather than a neutral arbiter of the rules of evidence and the rules of law.
Additionally, her campaign has engaged in a smear campaign against Margaret Chen Kercher designed to question and challenge the morality of aggressively representing an accused in a jury trial. It is important to note that a jury found this individual not guilty, and the court issued an expunction, which should protect the accused from having to explain himself in perpetuity, particularly against accusations made by an agent of the judicial system. Her campaign's insistence on sending out mailers condemning Ms. Kercher's representation reflects an ideology that questions the very integrity of the jury system. Had the defense's actions, in that case, crossed into the area of misconduct, it would have been incumbent on that prosecutor to ask for a mistrial and for that judge to potentially hold the attorneys in contempt. None of that happened. (I will not get into the minutia of trial tactics on either side.)
Unfortunately, the end result of that trial was that a victim felt underserved. The fault for the victim's feelings lies at the feet of the prosecutors, the victim advocates in that office, and potentially the judge. It is not the fault of Margaret Chen Kercher. Having a client - which incidentally the victim is not the client - feel underserved is something that those of us that have been in the system for as long as Judge Malhorta and I have, have to deal with daily.
Instead, the Malhorta campaign intentionally and knowingly jumped on an opportunity to mischaracterize what happened in that trial with the full understanding that attorney-client privilege, along with the expunction order, precludes Ms. Kercher from being able to effectively respond.
I can say this unequivocally, I have a tremendous amount of respect for Judge Malhorta as a lawyer, an advocate, and most importantly, a person. Based on the actions of her campaign, however, I now profoundly question whether she is the right person for Travis County Court at Law # 4.
Margaret Chen Kercher is the alternative. She is also an exceptional advocate, lawyer, and person. She has campaigned mainly on a platform of fairness to all parties and effective management of Travis County Court at Law #4's overwhelmingly large docket.
Having worked previously in the field, I know that politics on any level is an ugly business. Still, judicial politics should be about one's understanding of the law, the ability to apply it, and ideas about how to effectively manage the complexities of the day to day activity in a courtroom. Judicial politics should not be predicated on demeaning the role of your opponent in the criminal justice system, questioning the integrity of the jury system, or condoning a judicial function that supports a proposition of anything other than neutrality and a default position to protect the rights of those accused.
Texas Disciplinary Rules of Professional Conduct
3.09 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;
(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.
Texas Code of Judicial Conduct
Canon 5
(1) A judge or judicial candidate shall not:
(i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;
(ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or
(iii) make a statement that would violate Canon 3B(10).
(2) A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).
Canon 3B(10)
A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.