Do you believe that the defendant knows exactly what he is doing in taking a plea bargain?
I go through all the admonishments. ... I can tell from his or her response to me. It's a very long litany, and I have to be convinced. If I feel at any time that someone is being forced in any way to plead, I won't accept that plea bargain. That's, again, the responsibility of the judge -- to make sure it's done in accordance with the rules. If the court does feel that it's not appropriate, [that] the person is being pressured in any way -- and sometimes you get a feeling -- a long pause; you go into a question/answer with the defendant. The court does not accept that plea bargain.
How much does a judge know about a case?
Most of them, not very much at all. But let's say it's a plea bargain on an aggravated sexual assault of a child, and let's say the plea bargain is 10 years probation. The court would ask why this probation is being offered in that type of case. If the court feels that it's not appropriate, the court can stop that and not accept it. There are certain keys that will let the court know to ask more questions about a particular case.
But the great amount of cases, the burglary cases, the possession of drug cases -- They're standard as far as the plea bargains. And the judge will go along with most of them.
But plea bargains are not transparent in terms of getting at the truth of what happened.
In the great majority of the cases, they want to plead. They know they're guilty. They know they've got the goods on them, so they're trying to make out the best deal they can possibly make. That's the great majority of cases we deal with.
You certainly have to understand that plea bargaining only works if you have experienced competent defense attorneys, experienced competent prosecutors, and a judge who will oversee, make sure this is done correctly. The human element will always [need] be there in order for the plea bargaining system to work properly.
Can it work properly for poor people?
Certainly. A lot of times they don't have money for the bond. But in our court, and in the majority of the courts here in Harris County, that is the biggest myth out in the public -- that if you are unable to afford your own attorney, you get some court-appointed attorney that's just going to run you through the system without caring.
I've got three of the very best attorneys who work in the system, either retained or appointed. The appointed attorneys down here are better than 95 percent of retained attorneys that come through the courts. So in our court, anyone who cannot afford an attorney is given excellent representation.
As far as the bond, that's set by the judges. They want to assure this person showing up, so the bond has to be set on a standardized basis.
Do they have time and money for investigators?
I get bills for investigators' fees all the time for my court-appointed attorneys. To give you an example on the myth out there -- I have three attorneys who have been with me for a long, long period of time. They work only in our court. They're paid on a weekly basis. And out of the hundreds of cases these have tried, I have not heard one juror -- much less jury -- complain about that court-appointed attorney when I bring back the juries at the end of the trial.
In contrast, I'd say three out of five juries complain about the retained attorneys who try the cases out there.
See, that's the myth out there. We had a sleeping lawyer about 16 years ago, which Harris County is going to be known for forever. We're never going to get rid of the sleeping lawyer during a capital case. That person should never, ever have been appointed that case, and that case should have been reversed immediately. But because of that, we're known for appointing sleeping lawyers. It just doesn't happen. It's the biggest myth out there, as I said. We do a very good job of appointing competent, qualified attorneys.
But doesn't it stand to reason that O.J. Simpson's expensive defense team was a factor in the outcome of that case?
Well, O.J. Simpson was not acquitted because he had the quote, "dream team." They were anything but the dream team. They were an embarrassment to our legal system. He was acquitted because the jury had made up their mind a long time ago they weren't going to send any celebrity to prison. So forget about the attorney contrast in the Simpson case. That's hopefully an aberration, and it will be forever that.
What about times when innocent people plead guilty?
All I can do when I go out there is go through the admonishments. If I feel that anyone's qualifying in their response, [I say], "Are you pleading guilty because you are guilty?" There's a long hesitation, and they'll say, "No, Judge, I really just feel like I have to," I'm not going to take that plea; we're going to set up a trial. As simple as that. If at any time during the litany of admonishments that I give out there, if I in any way perceive this person pleading guilty because of other reasons than being guilty, I'm not going to take the plea. We're going to automatically set up a trial.
Don't defense attorneys decide pleas?
The defense attorney advises that person what this person's options are. They can say, "This is your option, this is what you want to do." It's always up to the defendant to make that decision. We can't make the decision for that person.
During the admonishments, as you'll see with us, I do everything in the world to try and find out [if] this person is pleading guilty because they are guilty. [I] give all the admonishments, and if at any time I feel that they are being forced into anything, we're not going to take the plea. It stops right there.
Can you revoke a plea?
Of course. I've done it on several occasions. When I found out that the plea was not in accordance with what I thought a jury would probably do, I won't accept that plea.
I've also, on occasion -- We had Hurricane Alicia here, back in the late 1980s, just demolish the town. I happened to be on vacation in San Diego during that time. I looked on the news. There were looters going through all the businesses. I called back and said, "If any of those looters end up in our court, no plea bargains at all. I want a jury of 12 people deciding what to do with this person."
We had two of them, and we had jury trials for both. No plea bargains in both of those cases, and the jury trials ended up in a long prison term.
What's the downside of plea bargain?
The mistakes that might be made by a prosecutor who over-evaluates his or her case, a defense attorney who does not do their case, or a judge who is lazy and doesn't supervise the case. There can be mistakes made in plea bargains; mistakes are also made during jury trials. The whole purpose of plea bargaining is for the prosecutor to assess what this case is worth, and then offer just a little bit less than what a jury would probably come back with, in order to move that case and dispose of the case at that time.
But it hinges on honesty and diligence
Anything in any profession hinges upon that, yes. The human element -- You can have [all] the set rules in the world. But if the prosecutors are not ethical, the defense attorney is not ethical, the judge is not ethical, it's not going to work. Anything is not going to work.
So we want to make sure that all facets are ethical, competent and experienced. Experience has a big role, because of judging that case on what the proper plea bargain ought to be.
What's the upside? Efficiency?
Sure. We have between 30 and 40 cases in our court on our docket every single day, and we're an average docket. We have 15 new cases this morning. If you spent a month on every case, again, these people would not have their case come up for years down the road. That's unfair to them; it's unfair to a lot of people who want their justice done right now.
So you do the best you can, because the numbers involved -- It's hard. I would love to be in a small jurisdiction. I'm sure there are some where you get one new case per week; spend all the time in the world on it. Really, in that type of case, it would be ideal to try every single case that comes in. You got plenty of time. Bring the jurors in. It tells the court exactly what the community wants to do in every single case.
That's not going to happen in a metropolitan area. You'd have to spend billions of dollars to have that many courts, to have that much time. Just not going to happen.
So, fundamentally, the system is the plea bargain?
The system right now is plea bargain, with a few cases being tried. Those few cases being tried set the standard for everybody in determining what to do with the 95 percent, 96 percent of the plea bargain cases. That's exactly right. I wish it were just the opposite, but it will never be.
There are things in trials which you don't examine in a plea bargain?
Plea bargains sometimes are made the day the person first comes in. The best deal, that type of deal.
Other plea bargains happen a long time down the system. Let's say it's set for trial, but they decided, rather than trial, to go ahead and plead. That gives the attorney -- either appointed or retained -- plenty of time to work on that case, and find out the problems of the case. You ask for dismissal, or you ask that this case be tried.
So, I mean, it doesn't happen in a vacuum. A lot of times, it happens over a long period of time. Sometimes the cases are disposed of immediately. Other cases take a long time to dispose of by way of plea bargain. So the longer it takes, the attorneys have a longer period of time to justify their position.
What do you mean, "justify their position?"
On whether or not to try the case; see if there are any problems with the case, in order to advise your client, "This is a good case, I think you can win it on trial," or, "I've checked everything. They've got all these witnesses that say you're the person. We need to plead."
Do you believe many innocent people plead, or plead no contest?
No. I really don't. I think most people that come in here that plead guilty are guilty. Sure, there are some. There's no question about it, and I wish there weren't. But the great majority of them, I'm sure, are guilty.
I wouldn't go to trial, I don't think, if I were innocent.
Why? That's the whole basis. I tell them out there, "If you feel like you're not guilty, you need to go to trial; either a court trial to have a judge decide this case, or a jury of 12 people deciding your fate. If you really feel like you're not guilty, that's exactly what these cases are here [for]. The jury is here, the court is here -- just for that."
But what if the defense lawyer says you don't have a chance?
That may happen with some retained attorneys. My three appointed attorneys here -- Even though they say, "Your best shot would be to go ahead and plead guilty, because they've got a good case against you," but if you want to try this case, they're going to do everything they can to find you not guilty. I think you're seeing some attorneys out there who represent the worst part of our profession. I think you're going to see some [of the] better attorneys here in Harris County.
But the plea is the easier way for the defense attorney.
A lot of times, the retained attorney gets more for going to trial. They're paid more. So they're going to want a jury trial rather than a plea at times.
They are paid upfront?
Sometimes. Again, it goes down to having quality people as defense attorneys who will do the proper thing -- either advising somebody, have them plead, or saying, "I don't think they got a case against you. Let's try this case. I think we got a good chance on a not guilty before this judge or this jury."
It goes down to the human element. We can have the very best procedure in the world set, but if you don't have good people in the system, it's not going to work. You can have a terrible system set up; if you have great people, again, it's not going to work. Right now, I think we have a good, good system set up. We just need the quality people, and the ones I've seen around our court are quality people. I think it works, overall.
What about good prosecutors?
The prosecutor -- The first charge shouldn't be to win every case. It should be to see that justice is done. They should be ethical, they should be competent. They should be very experienced, in order to judge these cases on what to offer. They'll think, "Well, I just tried a case two months ago. This jury from Harris County came back with a similar-type case. They came back with eight years in the Texas Department of Corrections. This is very close to the case I tried. So in this case that just came up before me, I'm going to offer seven or six, in order to remove this case a little bit less than what I think a jury would probably give."
That's the type of prosecutor you want in the court. But you want a prosecutor mainly to see that justice is done. Their sole charge is not to win those cases for the state.
Do they know that?
Yes, they do, and because they're told that all the time by the elected D.A. here in Harris County.
But I am talking about all America.
I can't talk for all America. I can only talk about really what happens in this court and this district attorney's office. Where I came out of is the district attorney's office as a prosecutor, and I know the people very well, so I can talk about this. I cannot talk about what happens elsewhere in the United States.
What are pros and cons of deferred adjudication?
Deferred started out as a legislature's response to help younger offenders who are charged with felony offenses, who would be given another break, would be placed on probation. If you serve that probationary period successfully, you would not have a felony conviction on your record. [You'd] still have a felony arrest you'd have to answer for the rest of your life. But at least you can say, when you're answering that question, "Have you ever been convicted or arrested for a felony conviction?" you can put down no. It just helped out the younger offenders.
Over the years, it's been spread out to cover just about everybody. Anyone, no matter what their age, can apply for deferred adjudication in the appropriate case.
But it has downsides?
Let's say you're given a first-degree felony offense, and between five years and 99 years to life. You ask for deferred adjudication, and the court grants it. So upon a violation, the court would have anywhere between five years and 99 years or life as the proper punishment on a proven violation. I can't remember one time on a violation, I've considered up 60, 70 --The upper range. It sounds good, as far as you know. You watch out, because the court can really pop you on the upper end. It just doesn't happen in the great, great majority of cases. You get offered deferred, you want to get deferred.
If you are offered a deferred adjudication for whatever, you best take it, because there's a good chance you'll be successfully terminated. Main thing is, you will not have a felony conviction on your record the rest of your life, which will haunt you forever.
Of the 96 percent of cases that are plea bargained, how many are guilty?
I'd say of that 96 percent, the great majority of them are probably guilty.
You want to believe that?
Certainly. And my communication with them during a plea is, if at any time I feel they are pleading for all the wrong reasons, or one wrong reason, I won't accept that plea. We'll put it on the trial docket where it should be disposed of.
But you don't have time to look at every case.
No. If we had an ideal system and Harris County, small jurisdiction, whatever, you'd work on one case for a couple weeks. Everybody would give all their consideration, their time, for that case, and then decide where this case should go -- either to a jury trial or a possible plea, court trial. If you had that much time and resources to put on that one case, then of course we'd be more reassured that the proper result will happen.
That's never going to happen. Certainly we would all like that to be the ideal circumstance. It's just not going to happen. With the number of crimes that are committed in the metropolitan area, that's a fantasy for all of us, just will never come about. I wish it was.
(Are judges ever involved in negotiation?)
Judges ordinarily do not get involved in any plea bargain unless the sides will come back to our office and say, "Judge, we can't agree on this plea bargain. We'd like to go to you without an agreed recommendation." The court would order a pre-sentence investigation report, which would take about six weeks to complete. Then the court would make a determination, based upon that. They're going to the court without an agreed recommendation, but in effect, it's a plea bargain to the court. That's about the only time we get involved.
It's not our job. Although you oversee it -- Again, if I have a feeling that this is not within the parameters of what the community would accept, I can say, "I'm not going to accept that plea bargain. We're going to set this case for trial." That's happened before, on several occasions.
You would not impose a plea bargain?
No. Can't. I can never tell the defendant "You've got to plead this case." There is no way in the world I would ever say that. The defendant always has the option on doing everything, once he or she enters the system. It's going to be their decision which way they go, certainly with the advice of the attorney, hopefully the proper advice. But it'll always be the defendant's decision on what to do.
So the system works if everyone does their job well?
And especially when you're dealing with the numbers [that] we are dealing with. I think that's when it becomes that much more important. If everybody does their job well, then it does work, or works about as well as it can. But you got to have the human element rise to those standards.
But that doesn't always happen? …
Well, we got to keep trying. I think here in our court -- and I'm sure in several of the other courts here in Harris County -- we're about as close as they come.