Tuesday, April 17, 2007

A New Day: Texas Lawyer-Mark Donald

A New Day: Democrats Make Their Presence Known at the Dallas County Courthouse

By Mark Donald
Texas Lawyer
Monday, April 16, 2007


For those lawyers who believe that the Democratic takeover of the Dallas County Courthouse won't make a difference in the kind of justice dispensed within its many courtrooms, for those who believe that the voters' banishment of 34 Republican judges last November won't make a difference in the tenor of judicial proceedings, or for those who believe that the law is too rule-bound to allow much change in the way judges conduct their business, step into the 301st District courtroom of newly elected family law Judge Lynn Cherry and prepare to be amazed.

The soothing sounds of classical music may be wafting through her courtroom — a Bach concerto, a Beethoven sonata — spun softly by her bailiff during pre-trial hearings. Its purpose, of course, is to relax the litigants and their lawyers, easing the conflict that, if protracted, can poison relationships and damage children.

"It's just light background music — nothing glaring," says Cherry. "The first time I played it was in a custody case. Opposing counsel was being so aggressive, it really did make a difference in his anger level."

If the classical music doesn't relieve the stress, Cherry may invite an uptight lawyer into her chambers for a relaxing sit-down on her massage couch, which along with other furniture and knickknacks in her chambers, she brought from her former law office. "I tell everyone that my space is your space, so make yourself comfortable," she says.

Most courtrooms are laden with aging photographs of former judges; not so in Cherry's space. Potted plants bring life into the sterile environs; her courtroom has a coffee station and breath mints to sweeten even the most distasteful rulings. "I have heard the judge say that she has lit candles and handed out smelly lotion to try to ease tension between lawyers," says Michelle May O'Neil, a Dallas family law solo and Republican Party loyalist. "Having a courtroom spa is something you have to get used to."

With the regime change that saw the election of 42 Democratic judges, lawyers have had plenty to get used to. The first 100 days of a Democratic majority in the Dallas County courthouse, which actually is housed in two buildings, has not been without its altered egos and rookie mistakes. New boundaries between lawyers and judges are being drawn daily, as each tests the limits of the other. And with the election of Craig Watkins, a criminal-defense attorney, to the position of Dallas County district attorney, a cultural sea change has occurred within the entire Frank Crowley Courts Building, which houses the criminal courts.

In interviews with more than 35 lawyers and judges, Texas Lawyer has attempted to discern just how these changes are affecting the practice of law. Some lawyers would speak only on the condition of anonymity, fearful that a judge might retaliate against their clients. Others had no trouble going on the record, seeing the change as a breath of fresh air. Those lawyers were usually Democrats.

Others are less certain, guardedly optimistic about the solid work ethic and ramped-up energy they see in the new judges, but worried that partisanship and a judicial philosophy that favors plaintiffs in civil suits and defendants in criminal cases will inform their judgments. For these lawyers, the jury is still out on the Democratic judges.

The Criminal Courts

Hanging from the wall of every prosecutor's workroom in Crowley is a large, black-framed blow-up of Art. 2.01 of the Texas Code of Criminal Procedure titled "Duties of District Attorneys." Within its long paragraph, only one sentence is highlighted in bold type:

"It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict but to see that justice is done."

Watkins says he had the code provision framed and mounted for his 234 assistant DAs to serve as a daily reminder of their ethical obligations and a message to criminal-defense attorneys that the era of what he terms "a conviction at any cost" has ended.

"Basically we wanted to put forth the message that this is a new day in Dallas County," Watkins says.

For the soft-spoken Watkins, this new day includes reducing the acrimony between his office and the defense bar, boosting morale by giving prosecutors more discretion to dispose of their cases and moving cases more efficiently through the system by granting criminal-defense attorneys greater access to discovery and making more reasonable plea offers.

Says Watkins, "Our philosophy is we don't have anything to hide here. If we can prove a case, we will. If we go to trial, we will kick your ass. But when it is over, there are no hard feelings. There is no need to harbor a combative mentality toward defense attorneys."

Prosecutors might be hard pressed to harbor that attitude, because Watkins, until he became their boss, was a practicing criminal-defense attorney in Dallas, as were most of the newly elected Democratic criminal judges (12 district and 12 county).

During the bitter campaign that preceded their election, Republican Party mailers praised their incumbent judges for taking a no-nonsense, tough-on-crime approach to sentencing. A telephone call seeking comment on this article to Kenn George, chairman of the Dallas County Republican Party, was not returned before presstime on April 12. But rather than simply focusing on the deterrent aspects of punishment, many of the new Democratic judges are seeking ways to incorporate alternatives to incarceration, such as substance abuse treatment and drug courts, into their punishments — the same kinds of sentencing options they advocated for their clients when they were criminal-defense attorneys.

"As defense attorneys we saw the system repeatedly send the same people to the penitentiary, and nothing ever changed for them," says newly elected Judge Lena Levario of the 204th District Court. "Now as judges we are more interested in trying to help people with their drug addiction or trying to deal with their mental illness. . . . We won't try it with the dangerous folks."

Several criminal-defense lawyers say that practicing law has become fun again. With the "us vs. them mentality" of the old regime waning, they say they no longer feel demonized for representing the guilty. Rather some indicate a shared sense of purpose that they too play a vital part in the administration of justice. "Prosecutors seem to realize we are all members of the State Bar of Texas, and even if we are on different sides of the case, that we can all behave like professionals, says David Finn, a partner in Dallas' Milner & Finn who himself is a former Dallas County criminal court judge.

Part of that fun may be due to the pay raise that court-appointed attorneys received when the criminal district judges voted to increase the fee schedule on Feb. 16. Part may be due to the fact that judges understand the problems of being a defense attorney (i.e. getting paid) and are more likely to be sympathetic to those problems. Part of it may be that, with their brethren on the bench, they feel a renewed pride in their calling. And part may be due to the fact that they have more tools with which to work: plea bargain offers have gotten downright reasonable.

"It's not like they are giving away the farm," says Finn. "You just don't have to gear up for trial to get their best offer, and you don't need to fight at every step of the way to get discovery. That means I can advise my client about the strengths and weaknesses of the state's case earlier, and they can move the freight more efficiently."

"The previous administration spent an inordinate amount of time sweating the small stuff — whether a 17-year-old charged with a state jail felony should get deferred [adjudication]," says veteran criminal-defense attorney Reed Prospere, a partner in Dallas' Prospere, Russell & Dean. "This administration is more concerned with the violent offender."

Wall dÈcor aside, few things seem more emblematic of this new day than Watkins' prosecutorial philosophy toward DNA testing. "Prior administrations would routinely fight DNA testing," says Robert Udashen, president of the Dallas County Criminal Defense Lawyers Association and a partner in Dallas' Sorrels Udashen & Anton. "They might say they were only upholding the law or that a request didn't fit within the statute."

Not so with Watkins.

He has agreed to review 434 convictions where DNA has played or might yet play a role. Since 2001, Dallas County has seen 12 convicted defendants exonerated with the assistance of DNA testing, and a 13th is awaiting final approval from the Texas Court of Criminal Appeals. Three of them have been released under Watkins' watch. Not only has he apologized to these defendants, says Udashen, but Watkins supports their requests for compensation from the state for the years they were wrongly incarcerated.

"We are just trying to restore credibility to the DA's office," says Watkins, "credibility that has been lost when you have 13 individuals out of the 35 tested who have been wrongly convicted."

What Watkins may be risking is the public perception that he releases defendants from prison rather than sending them there. "The perception that Watkins is soft on crime may present a political risk," says Udashen. "Or it may be a matter of educating the public that things are being done differently."

That risk was driven home in February when the Texas Commission on Jail Standards threatened to shut down the Dallas County jail, because it was understaffed.To achieve compliance with state standards, the jail population had to be reduced by 1,000 inmates — and fast.

"The [Dallas County] Commissioners Court asked the judges, the district attorney and the Public Defender's Office to work together on a plan that would lower the population," says Dallas County Chief Public Defender Brad Lollar. "I proposed that we offer a 180-day sentence on all state jail felonies regardless of prior criminal record since these cases were the ones that were clogging up the system."

The District Attorney's Office bought into the plan, recommending the plea bargain, says Lollar, and many within the private defense bar took part in the deal. About 400 inmates snapped it up; another 300 or so were released on personal recognizance bonds or after their cases were reduced to misdemeanors or after they pleaded guilty and were given credit for the time they had already served in jail. And the jail avoided a shut-down, at least temporarily.

But not everyone was on board with this Kumbaya consciousness. Watkins says the plan drew fire from some in law enforcement who saw it as a giveaway to criminals who would just re-offend after hitting the streets. "I don't think the criticism was warranted," says Watkins.

Watkins also found himself in challenging waters over an incident reported in a Feb. 22 article in the Dallas Observer, which left the impression that the DA's office had cut a favorable deal for a client of Anthony Lyons, a criminal-defense attorney and member of Watkins' transition team.

According to the article, Lyons represented a Dallas Police officer accused of filing a false report with the Desoto Police. When a Desoto police captain learned that the case had been dismissed, he phoned the lead prosecutor on the case and asked him why. The captain taped the conversation with the prosecutor, who stated that he had been told by "a member of the transition team at the DA's office that [the defendant-officer] had lost her job and maybe they wanted the case dismissed." According to the article, the DA's office later admitted that the transition team member was Lyons.

Lyons did not return a telephone call seeking comment, but Watkins says that "all district attorneys have friends who are defense attorneys, and no one questions whether or not they have given favoritism." There are 6,600 misdemeanors filed each month in Dallas County, adds Watkins, "and there is no way I can pay attention to one case. . . . Why would I jeopardize everything I am trying to do for a piddly misdemeanor?"

What Watkins hopes to do is implement cutting-edge initiatives that he believes will attack the root cause of crime. Among these will be a deferred prosecution court for first-time misdemeanor offenders between the ages of 17 and 25 who will be diverted out of the system if they live up to certain conditions, such as obtaining a GED or getting job training or drug treatment; and a community prosecutions system that will deal with crime at the neighborhood level by impaneling a group of community mediators to mete out restorative justice. "The victim will have his day in court and be made whole, and the defendant will be restored to the community," Watkins says.

Of course, the new judges have their own ideas about how best to reduce recidivism and administer justice.

Although Dallas County has a hybrid court-appointment system that employs private lawyers and public defenders to handle indigent cases, the new judges have added six public defenders in the trial courts, which is not surprising, says Lollar, since nine of the judges previously worked for the PD's office.

To remove the appearance of favoritism and patronage in the private court-appointed system, the judges have voted to establish a central appointment office, delegating the power to appoint attorneys, except in special situations, to a central administrator. "A central appointment system was a nonstarter with the former judges, says Criminal District Court No. 4 Judge John Creuzot, a Republican who serves as the presiding criminal district judge.

Creuzot, the driving force behind Dallas County's first drug court, shares a similar judicial philosophy with many of these new judges. He doesn't find them partisan, but rather focused on "getting better results," he says. "They are more willing to take an active role in judicial administration and are more aggressive and energetic" than his former Republican colleagues. If a jury trial washes out, says Creuzot, judges are actively recruiting jury trials from the other courts.

"Previously, each judge was solely responsible for the court's docket," says Levario. "Now, all of the judges make themselves available to handle cases out of other courts. . . . [This availability] to try cases has increased the number of dispositions. Attorneys know that regardless of whether I am busy in a jury trial, [other judges] are available to try cases on my docket."

With so many new criminal judges, few criminal-defense attorneys will hazard an opinion about the judges' performance on the bench, other than saying the judges are working long hours and seem happy — even surprised — to be on the bench.

Some lawyers, gambling that the judges will call upon their own criminal-defense backgrounds, have expected the judges to be lenient toward their clients in sentencing hearings. "A lot of defense lawyers have allowed us to decide punishment in certain aggravated cases, putting open pleas before the court," says Levario. "They get real surprised when we slam them. We might be Democrats, but we are still human."

The Family Courts

Darlene Ewing is in a precarious position. Not only is she the Dallas County Democratic Party chairwoman who presided over her party's electoral coup in November, she is also a Dallas family lawyer who must litigate before the same judges she helped elect.

"The new judges represent the Democratic Party, and if something is going on that a bunch of lawyers tell me they are unhappy about, I pass it on to judges," Ewing says. "But I don't take a position, because I don't want the politics to bleed over into my professional responsibility."

Ewing says lawyers seem surprised by the long hours kept by the five newly elected Democratic family law judges. A sixth Democrat, Dennise Garcia of the 303rd District Court, won her bid for re-election. Overall, Ewing says, the reviews have been favorable, except for some concerns about David Hanschen, judge of the 254th District Court.

"You have to understand, a lot of family lawyers are nervous about David, because he is not a conformist," says Ewing. "Lawyers don't like change, and he is changing the traditional way we do things."

But it's not his ponytail or his refusal to wear a robe that has some lawyers rattled. It's more the way he manages his docket and their schedules.

"He wants it known that he is not granting agreed continuances," says Dallas family law solo Lisa Mc-Knight. "He has told lawyers that each side can only have an hour in contested [parent-child] modification hearings, and they can only have one day for a jury trial." But McKnight remains uncertain whether Hanschen will follow through. "It's more like he is trying to set a tone that he is not going to be pushed around," she says. "He wants lawyers to know there is a new sheriff in town."

Hanschen says he "has found a series of abuses with continuances that have enabled cases to drag on for years." No longer will he rubber-stamp agreed continuances, he says, but if the parties have a good reason such as "reconciliation or a genuine medical emergency," he will grant them.

Regarding his giving each side an hour to present its case, Hanschen says he was "misquoted," and he would not require such a "simplistic rule." But moving cases is a priority for him, and one of his goals is to give litigants a trial within 30 days of requesting it. "I haven't gotten there yet, but I am working on it," he says. "I have told lawyers we can even have court on Saturdays if they want."

"Judge Hanschen seems determined to show lawyers that his is a judge's docket not a lawyer's docket," says Brian Webb, a partner in Dallas' Webb & Ackels. "But in some cases a judge has to manage it, and in other cases a judge has to stay out of the way."

But Hanschen seems unlikely to stay out of the way. He believes that the child support guidelines promulgated by the Texas Attorney General's Office and used by the family law courts have become a "fossilized rule" rather than the guidelines they were intended to be. To Hanschen, they are just a starting point, and if the evidence suggests otherwise, he will not hesitate to depart from the guidelines to "serve the situation."

"The criticism I have received is that if the guidelines are not predictable, lawyers can't get their clients to settle," he says. "But I tell lawyers it gives them an opportunity to come up with creative solutions and think outside the box."

Webb says that Hanschen is bright — strong in complex property cases — and he expects him to settle in "after he gets sufficiently bludgeoned by the drudgery of pots and pans divorces."

Six family lawyers interviewed have given favorable reviews to family court Judge Tena Callahan of the 303rd District Court ( "hardworking," "well-reasoned decisions," "good judicial demeanor "), Judge Lori Chrisman Hockett of the 255th Judicial District Court ( "low-key," "serious," "getting control of her docket ") and Judge David Lopez of the 256th Judicial District Court ( "open-minded," "a pleasant surprise ").

One family lawyer has had an encounter with Lopez that has caused some attorneys concern. On March 5, Darlene Darensburg, a partner in Cato-Miller, Darensburg & Associates in Mesquite, entered the office of Lopez's court coordinator Cathy Sanchez and became irritated, because Sanchez had taken a case off the docket without Darensburg's consent, Ewing maintains.

When Lopez learned of the incident, he sent a notice to Darensburg titled "Show Cause Hearing" that stated, "The Court has reason to believe that you have violated the independence and integrity of this court. . . . Hurtful and inappropriate comments made to my staff in the performance of their official duties reflects on the court and ultimately on me." Lopez scheduled a show-cause hearing on why he should not sanction Darensburg. At the hearing, Darensburg apologized, and the judge took no action, Ewing says. "He could have handled it less publicly, but it was just a young judge trying to establish himself."

Neither Lopez nor Sanchez returned telephone calls seeking comment.

Darensburg's lawyer, Rhonda Hunter of the Law Office of Rhonda Hunter in Dallas, says her client declines comment. But Hunter says, "I think the judges are not secure in their victory. They think the lawyers are not treating them the way we treated the other judges, but we are treating them exactly the same way."

Callahan says she is committed to starting a family drug court, which would change the way Child Protective Services handles its family law court caseload. "Rather than terminate the rights of a mother or father with a substance abuse problem or segregate parent from child, the mission of a family drug court is to rehabilitate, offering intensive judicial intervention to families through treatment that gets parents off drugs and keeping the families together," she says. Harris County and El Paso County have ongoing family drug courts, and Callahan hopes to get hers up and running by summer

Judge Cherry brings her own brand of unorthodoxy to her court proceedings. "The biggest complaint about Lynn is that she likes working through lunch," says Ewing. "Most judges do prove-ups [uncontested matters] at 8:30 in the morning, but she is not an early person, and she will do prove-ups any other time you want."

Cherry admits that her approach to analyzing cases is different, and she has no qualms about jumping into the fray and asking questions. "I am also not afraid to interview kids. . . . I am much more hands-on than most judges," she says.

But some lawyers worry that Cherry may micromanage their cases, says Ewing, overly scrutinizing prove-ups and agreements that the lawyers may have spent considerable time hammering out. Cherry also expects to draw fire for the pretrial information sheet she has lawyers fill out. It asks the parties to disclose how much money they have already spent on legal fees, which some lawyers may be reluctant to reveal. "When attorneys see how much they have spent in writing, it makes them think, "What are we doing, and where are we really going with this?' " Cherry says.

Although a few lawyers worry whether her unorthodoxy will translate into unpredictability, several say her heart is in the right place. "Lynn brings a lot of passion to anything she does," says Webb. "She is flamboyant and gregarious. She's the one with loud earrings and always has the right sweater for Christmas."

The Civil Courts

When Rod Phelan, a partner in the Dallas office of Baker Botts, heard that newly elected Democratic judge Carlos Cortez of the 44th District Court had asked to meet with his firm after the election, he thought, well here is another "catch the last train" fundraiser for a victorious judicial candidate his firm hadn't supported.

Cortez had taken a fiery tone during the campaign, says Phelan, and his firm was hearing that there was a lot of anti-establishment rhetoric coming from the Democratic candidates. "So when you are a tall-building lawyer and you represent the establishment, which is supposedly being targeted by these candidates, you find a change at the courthouse — a huge change — pretty scary," he says.

Of the eight civil district benches and four civil county court-at-law benches that were in play in the 2006 election, the Democrats swept all 12. Of the four remaining Republican incumbents on the civil side, two ran unopposed, and two weren't up for re-election.

Republican Judge Mary Murphy of the 14th District Court, who was not up for re-election, says she has "worked hard to help get the new judges up to speed and if the new judges were asked, they would say that those of us who were here have made their transition as smooth as possible." Still, Murphy does, at times, feel a bit isolated. "I haven't always felt as if I was included in meetings, but I haven't been shy about speaking up," she says.

When Cortez came to Baker Botts in December, says Phelan, "there was no request for funds. Just a new judge who had given a lot of thought to the way he wanted to run his court."

Phelan says he found Cortez a bit edgy, "and it's a lot scarier when someone is edgy who has a lot of power."

In late January, Phelan used an opportunity at a continuing legal education reception to "gently rebuke [Cortez] for being so militant even after the election."

Cortez still seemed stuck in election mode; a few weeks earlier he had spoken out against the Dallas Bar Association at his own DBA-sponsored investiture. During the investiture, Cortez castigated DBA leaders for remaining silent in the face of Republican Party attack ads against the Democratic candidates. Cortez and other Democratic judges felt that these ads, which had been financed in large part by incumbent Republican judges, had violated the DBA's judicial election creed that candidates had agreed to uphold. [See "Boycotting the Dallas Bar Association," Texas Lawyer, April 2, 2007, page 1.]

At the CLE reception Phelan recalls telling Cortez, " "Judge, you won, ease up,' " but Cortez remained unapologetic, instead telling Phelan, "Watch what I do from the bench — that's what counts."

"It was kind of contentious," says Cortez. "He thought I was going to hurt my reputation as a judge, but I thought my judicial demeanor should be judged by what I do on the bench."

One of Phelan's partners was defending a case in Cortez's court, and Phelan followed the trial through closing arguments in early February. "Both sides thought he tried the case fairly and gave him high marks," says Phelan. "But it was a business case, not big guy-little guy. It might be more revealing if there was only one deep-pocket."

But Cortez wasn't the only new judge who conjured up nightmares for big-firm lawyers. "Each of us in large firms had a different bad dream — whether we thought the new judges were inexperienced, plaintiffs lawyers or knee-jerk liberals," Phelan says. "We had gone from judges we knew to judges we didn't know."

Which is fine with Jeffrey Tillotson, a partner in Lynn Tillotson & Pinker. "It's nice for a change that the people who have been swept into office don't have long historical ties with the big firms in Dallas," he says. "The vast majority of the Dallas bar doesn't have a personal connection to any of the judges, which gets them where they need to be — focusing on the law."

Tillotson has had one jury trial before Judge Craig Smith of the 192nd District Court, and he is impressed with the judge. "It was a business dispute, and the judge was well prepared and worked hard. He let the lawyers try their case yet he kept the case moving," says Tillotson. "He gave us a wonderful trial, although we lost."

Four lawyers interviewed single out District Judges Emily Tobolowsky, Bruce Priddy, Marty Lowy, Jim Jordan and Martin Hoffman, and County Court-at-Law No. 2 Judge King Fifer for acclaim.

"Most of the new judges have kept the staff of the old judges, which has made things seem pretty seamless" at the George L. Allen Courts Building, says Roger Mandel, a partner in Dallas' Stanley, Mandel & Iola.

But civil Judge D'Metria Benson created a public relations situation for the Democrats recently. According to a March 9 article in The Dallas Morning News, Benson, who presides over County Court-at-Law No. 1, placed herself in the middle of the national debate on immigration reform during a motion for summary judgment. Lawyers representing a credit card company had not translated their requests for admissions or summary judgment motion into Spanish, the native tongue of the plaintiff-debtor. In a transcript, Benson stated she had "concerns," because the defendant didn't speak English. Rather than grant the summary judgment motion, she sent the case to mediation, raising the ire of an immigration reform activist and state Rep. Will Hartnett, R-Dallas, chairman of the House Judiciary Committee, who says he is prepared to introduce legislation that would prevent a court from denying a motion because the documents upon which it was based were only in English.

"I have drafted the bill, but I believe it does not merit legislation yet, because it was an isolated mistake," says Hartnett. "Texas law does not allow a judge to require one party to translate the pleadings of another party."

Benson did not return a telephone call seeking comment, but Ewing says credit card companies are used to getting their way quickly in court, and all the judge was trying to do was "stop the railroad" by sending the case to mediation.

Even if this might be considered a pro-plaintiff decision, Randy Johnston, a founder of Johnston &f Toby in Dallas who handles professional malpractice cases for plaintiffs, believes that the number of wins for the plaintiffs and defendants is not going to change in any significant respect under the new regime of judges. What will change, he insists, is how the lawyers feel about participating in the judicial process.

"I would be willing to bet that lawyers of every practice area and every political party are finding themselves more welcome at the courthouse," says Johnston, who adds that he contributed money to the campaigns of several Republican judges in the hope they would remain judges. But it is only in hindsight, he says, that he realizes how much he used to dread going to the courthouse for a hearing. "I knew I was going to be treated like a child by some judge who thought it was my fault for bothering him with a discovery dispute or that my request for a jury trial was me being unreasonable."

Certainly there are Republican judges who were opposed to lawyer-bashing, says Johnston, but they came from a political party where lawyer-bashing was part of their tradition. "For me, the practice of law has become fun again," Johnston says, because he is going before judges — some of whom are his friends — "who are committed to the right to a jury trial and who view lawyers as being part of an honorable profession."

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