Most judges favor prosecutors. No secret about that. A visit to any courthouse in America during a criminal trial will reveal this fact.
The notion that judges are to be fair and impartial arbiters in a criminal case morphs when attorneys became enthralled with the power, status, and influence of being a prosecutor and/or a judge. The bio of at least two out of every three judges reveals their journey to the bench began as a prosecutor. That creates a natural affinity between prosecutors bent on convictions and judges who issue rulings that make the pathway to conviction easier.
That’s the kind of relationship Polk County District Judge Elizabeth Coker had with then Assistant District Attorney Kaycee Jones in August 2012 when she was presiding over the trial of David Reeves who was being tried for injury to a child.
Reeves’ case was being prosecuted by Assistant District Attorney Beverly Armstrong. Jones was an “observer” in the court. Coker was patently biased against Reeves, either for personal reasons or repugnance against the crime for which he was being tried. And she obviously did not like the way the prosecution was being handled, so she sent a text message to Jones instructing her to tell prosecutor Armstrong about a specific line of questioning she should ask that would prove Reeves’s guilt. Jones conveyed this information to Armstrong by writing it out on the top of a legal pad the two prosecutors were sharing.
The text message was clearly an ethical breach. The two prosecutors knew it, as did the judge. Neither of the prosecutors shared the unethical message with Reeves’s defense counsel. In fact, the unethical conduct would have gone unnoticed had it not been for David Wells, an investigator in the District Attorney’s office, who witnessed the texting exchange between Coker and Jones, and who was asked by Jones to give the message to Armstrong. Immediately after the trial Wells wrote a letter to the Texas Commission on Judicial Conduct reporting the incident.
Canon 3 of the Code of Judicial Conduct specifically states: “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to a judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.” Texting a private message to one of the attorneys about a contested matter before the court is ex parte.
The Commission launched an ethics investigation into Coker’s conduct. The judge and Jones, who became a judge herself after the investigation was launched, did not deny the ex parte text communication they shared during Reeves’s trial. The investigation quickly expanded into other claims that Coker, according to the Commission, had “engaged in other improper ex parte communications and meetings with Jones, other members of the Polk County District Attorney’s Office, the San Jacinto County District Attorney, and certain defense attorneys regarding various cases pending in her court; Judge Coker allegedly exhibited a bias in favor of certain attorneys and prejudice against others in both her judicial rulings and her appointments; and Judge Coker allegedly met with jurors in an inappropriate manner, outside the presence of counsel, while the jurors were deliberating in one or more criminal trials.”
It did not take the Commission long to resolve the Coker complaint. On October 21, 2013, the Commission released a “voluntary agreement” between Coker and the Commission, calling for the judge to “resign from judicial office in lieu of disciplinary action.” The agreement was forged because the Commission had “concerns” that Coker had not been “candid and truthful in her testimony before the Commission;” therefore, the parties agreed to forego “findings of fact” on the judge’s alleged ethical breaches if she would simply resign and never serve as a judge in Texas again, either through election or by appointment.
In other words, Coker was ordered out of “Judicial Town.” The Coker/Jones case substantiates the numerous complaints made by defense attorneys across the country about the “unholy marriage” between judges and prosecutors: “you scratch my back and I’ll scratch yours.” But Coker’s case leaves some serious questions unanswered. Why were disciplinary charges not brought against Jones and Armstrong: Jones for engaging in the ex parte text communication with Coker and Armstrong for not informing defense counsel about the communication?
The Commission left unresolved those allegations that Coker routinely had ex parte communications with other members of the Polk County District Attorney’s office, with the District Attorney of San Jacinto County, and with certain defense attorneys. Who are these officers of the court who trampled on the Texas Disciplinary Rules of Professional Conduct? They should not only be identified, but thoroughly investigated by the State Bar. They do not deserve a free pass.
And even more disconcerting are those alleged “inappropriate” contacts Judge Coker reportedly had with jurors “outside the presence of counsel,” even while the jurors were deliberating. The defendants in those cases, if convicted, are entitled to a new trial before an impartial judge. The Commission should have ascertained the name of the defendants being tried and attorneys defending them, and apprised them of the judge’s impropriety. The Commission should have also determined whether the prosecutors involved in those cases had knowledge of the judge’s inappropriate contact with jurors, and why they did not report this patently unethical conduct to the Commission.
Trying to avoid a fate similar to Coker, now Judge Jones issued a statement that she acted in a wrongful manner, that she knew better, and that it would never happen again. Now, as a judge, Jones added that she regrets her actions and can “now fully appreciate the importance of the impartiality of a judge in a trial and my responsibilities as an attorney not to engage in such conduct. I was wrong and nothing like this will ever happen again.” And don’t forget: God bless America!
Perhaps the Texas Criminal Defense Lawyers Association, which is now investigating the Coker/Jones affair, will be more forthcoming. Association spokesman Stanley Schneider was quoted in the media as saying the incident was “unusual.”
We don’t find anything “unusual” or extraordinary about any of the allegations presented to the Commission about Coker’s behavior as a judge. In fact, in many Texas counties, and in many other counties in other states, the “unholy marriage” like that between Coker and Jones is “par for the course.” We, therefore, would suggest that the TCDLA identify those defense attorneys and prosecutors who engaged in inappropriate ex parte communications with Coker about cases they were defending/prosecuting and report any unethical conduct to the State Bar.
This conduct, which most defense lawyers will confirm is wide spread, does not serve either the integrity of the judicial system or the interests of justice. No wonder confidence in our judicial system is so low…