Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment

By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair


Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment.


In 2008, Emiliano Escobar, convicted by a jury of the sexual assault of an 18-year-old college student, elected to have 177th Criminal District Court Judge Kevin Fine decide the punishment he should receive. To arrive at a punishment that fit the crime, Judge Fine obviously believed he had a duty to closely question the victim about the nature and circumstances of the alleged sexual assault. At one point during the Judge’s examination of the victim, he commented that “sending a man to prison in the name of law and order is the greatest injustice this society can do.”


We agree. 75 percent of the nearly 250 DNA exonerations in this country over the last two decades involved mistaken eyewitness identification. In Texas, the mistaken eyewitness identification percentage is 82 percent in exoneration cases. Two recent Houston cases, Ricardo Rachell and George Rodriquez, come to mind. Both were wrongfully convicted based on false and/or mistaken eyewitness identification. 1/


Various reputable studies, including a 1996 study by the U.S. Justice Department, report that anywhere from 25 to 40 percent of all rape allegations made in this country are false. 2/


But Houston Chronicle columnist Lisa Falkenberg did not agree with Judge Fine’s questioning of the victim—not just with the manner of the Judge’s examination but more with the fact that he even conducted the examination. 3/


After reading the trial transcript of the Judge’s examination, Ms. Falkenberg conducted a telephone interview with the victim who also believed the Judge had “crossed the line” as she told the newspaper columnist.


Ms. Falkenberg and the victim were particularly disturbed that Judge Fine not only challenged the victim’s version of the events but questioned her detailed description of the actual sexual assault itself. According to Ms. Falkenberg, the victim was “shocked” that Judge Fine found it “odd” the alleged rape actually occurred with the victim on top of Escobar during the sexual intercourse.

“I know these are tough questions and I don’t like to have to ask them,” Ms. Falkenberg quoted Judge Fine as telling the victim. “It’s just you understand that most rapes take place with the man on top so he has complete control of the female.”

Ms. Falkenberg reported that Judge Fine has apparently told the Houston Press’ Hair Balls blog he could have handled the examination more tactfully by expressing his concerns in private and letting the prosecutor and defense attorney “flesh” the matter out.


But that candid admission did not satisfy Ms. Falkenberg. She made a point to note that Fine is a “newly elected Democratic judge who previously worked as a defense attorney.” The bias in the statement is evident: being “Democratic” and “a defense attorney” translates into a pro-criminal mindset. The fact that Judge Fine is a Democrat and was a former defense attorney had absolutely nothing to do with whether or not he should have conduct the examination of the victim.


The association between being a Democrat and a defense attorney reinforces a popular misperception that defense attorneys who happen to be Democrats are anti-victim bent on “getting criminals off.”   This is a sophomoric a simple conclusion and has no merit.


Ms. Falkenberg lent more credence to the misperception with the following sentiment:


“Whether he meant to or not, Fine has sent a troubling message about sexual assault. Coercion comes in many forms. By gunpoint or perceived threat. From a stranger, or a boyfriend. And in various positions.


“Juries, even in Houston, don’t convict in rape cases easily, and when they do, it’s not the judge’s place to second-guess the verdict.


“In the end, the judge apparently reconciled his concerns about conflicting time lines and other testimony and acknowledged the compelling evidence that led him to sentence Escobar to 25 years in prison: After listening to the 911 tape of the screaming girls ‘for the sixth time,’ Fine told the court, ‘there’s no doubt in my mind’ that ‘no means no, period.’


“If only he’d come to that conclusion without having to re-victimize the victim first,” Falkenberg concluded.


Ms. Falkenberg is a fine journalist.  Her opinions as a columnist have garnered both respect and disdain from all political corners. But, we question the source of her information that Houston juries “don’t convict in rape cases easily.” We suspect she would have a difficult time trying to convince the six inmates exonerated by DNA after being wrongfully convicted by Houston juries of this premise. Perhaps Ms. Falkenberg has data to support her claim. If so, defense attorneys would appreciate her sharing it with the general public.


Finally, we take issue with Ms. Falkenberg most excruciating point that Judge Fine’s examination somehow “re-victimized” the victim. The judge’s admitted lack of tact may have made the victim uncomfortable but to characterize the examination as “re-victimizing” the victim as though the judge re-sexually assaulted her with the examination really crosses the line.  It is commendable that the Judge insisted on knowing all the facts before imprisoning a man for 25 years.  To do otherwise, as some Republican, tough on crimes, judges do routinely, is inhumane and against the interests of justice.


More judges should have the courage Judge Fine exhibited. He had a duty to ask hard questions in order to arrive at the appropriate punishment. He fulfilled that responsibility—and to criticize him for not only fulfilling that duty but to also indict his professional integrity because he happens to be a “newly elected Democratic judge who previously worked as a defense attorney” undermined any legitimacy the Ms. Falkenberg’s column may have had.


Criminal defense lawyers are not pro-crime or anti-victim.   They are trained professionals who demand that the rule of law be followed, no matter the popularity of their client.  Their function in the judicial system is to prevent government oppression and falsification.  To disparage the Judge because of his past service as a defender of the Constitution is ridiculous.





2/ https://www.johntfloyd.com/comments/july09/17a.htm

3/ http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/6585779.html

By: Houston Criminal Defense Attorney John Floyd and Billy Sinclair