Another Special Project

protecting the hapless from themselves

How do I find special projects to pursue?

Sometimes someone comes to me having been done wrong, and I try to fix it for him, which means fixing it for everyone else as well. That’s how I got started attacking Texas’s Online Solicitation of a Minor statute: TRJ came in to the office; he’d been sentenced to probation after a jury trial; in voir dire a juror had asked, “does it really not matter whether TRJ believed that the person he was talking to was underage”; the judge had (correctly) said “nope!”; and TRJ had been convicted despite very real doubts about whether he was engaging in ageplay with the Perverted Justice volunteer on the other end. I saw that that was a do-wrong, and set about fixing it.

Sometimes it’s lawyers calling to my attention problems that don’t affect my clients, but affect theirs. That’s how Darrell Jordan’s policy of unlawfully holding people in contempt for violating their terms of probation came to my attention.

Sometimes it’s just noticing. That’s how I started the action against Mike Fields’s bullying unrepresented defendants into guilty pleas in 2014.

The latest special-projects victory, though, wasn’t primarily about the accused at all. It was about the integrity of the system, about forcing lawyers to comply with norms that benefit the bar generally as well as defendants.

The problem was that certain lawyers were sending text-message solicitations to newly released defendants. This is legal, at least in a positivist sense: the State Bar, the authority charged with enforcing the broadest laws that might apply, thought it was okay. But it is unseemly.

A matter more of aesthetics than of ethics.

People just released from jail are vulnerable, often panicky, and likely to make bad decisions such as “hire a lawyer based on an unsolicited text messages.” Defendants might suffer from the hard sell, and better lawyers who are unwilling to engage in the hard sell might suffer from not being hired.

Other lawyers complained to the State Bar (which said something like, “as long as there is no way for the defendants to reply directly to the text messages, it’s just like sending a postcard!). Mark Thiessen and Ed McClees wrote an article for TCDLA’s Voice for the Defense. The text messages continued. A defendant might get out of jail to find 20 or 30 text messages advertising lawyers on his phone. It was a recipe for a race to the bottom, gleefully fueled by the marketing companies selling the service.

I pretty much ignored the whole mess, until one lawyer called me to commiserate. I love a problem that nobody else has been able to solve!

So I solved it. (Below the payline: How I Solved the Texting Problem.)

My crusade against Darrell Jordan’s holding people in contempt for allegedly violating their conditions of bond is personal.

On this problem, so far I have filed:

• A petition for writ of mandamus in the First Court of Appeals;

• An amended petition in that court (after Jordan amended the charging instrument we were seeking to force him to amend);

• A petition for writ of prohibition in the Court of Criminal Appeals;

• An amended petition in that court (after Jordan reset the hearing we are seeking to prohibit); and

• A petition for writ of habeas corpus in the Court of Criminal Appeals.

I’ve got another little treat that I’m filing Monday.

I had nothing personal against Jordan before. In fact, I would have said that he’s one of the good guys. He ruled the right way on my First Amendment challenge to the Online Harassment statute when few other judges were willing.

And I think he’s trying to do what he thinks is the right thing. I can imagine the frustration of being a judge faced with multiple people who, on bond for serious crimes, put themselves in a position to be charged with multiple additional crimes.

(Not everyone charged with a crime is guilty, but people mostly aren’t charged with crimes because they’ve made all the right decisions.)

And trying to do the right thing might be a defense, or at least a mitigation, to doing the wrong thing if you’re an ignorant schlub with no power.

But if you’re a judge, it is neither defense nor mitigation. If you are a judge you must cleave to process, regardless of whether that outcome suits your own preferences.

And if you’re a judge, you cannot rest on your own laurels, relying on your past good acts to justify your doing the wrong thing now.

And Jordan is doing the wrong thing now to suit his own preferences. I don’t want to get him removed from the bench, necessarily, but because he’s a person with power doing the wrong thing, this experience should be memorable for him. (And I aim to make it so.)

Ours is an adversarial system. It is adversarial in part because we—Americans—are an adversarial, individualist (vs. collectivist) culture, and in part because an adversarial system is the best system for deciding how to deploy state force against the people.

It’s modern trial by combat: send your prosecutor who thinks he knows what justice is; we will do battle before a judge who will make us both follow the rules; if your champion can beat me, you were probably right. If not, then you weren’t.

The adversarial system is a check on power. Without a check on their power, powerful people doing evil to others can always justify their actions as “the right thing.” Hitler and his cadre thought that exterminating the Jews was the right thing to do.

Jordan is wiring around the adversarial part of the system to do what he thinks is the right thing to do.

If I were a judge, I would not wire around the system to do what I thought was right. So I see no distinction between the judge who is wiring around the system to do what I agree is the right thing, and the judge who is wiring around the system to do what I feel is not the right thing, but Jordan is doing what I feel is not the right thing.

Darrell Jordan is doing evil.

It’s a really strong word. Why evil?

• (To recap) Darrell Jordan is using violations of bond as a reason (a pretext is a reason, right?) to put people in six-month inpatient drug-treatment programs.

• We know that involuntary treatment is ineffective, so, first, most of his victims will not get better. You have to be at rock bottom to get help.

• Second, most of the people he sticks in WHO or YMAC will lose their jobs, their apartments. Many will lose their families. Some will have loved ones die, and will be unable to hold their hands or make their peace.

• Jordan is taking people who aren’t at rock bottom, and sending them hurtling that way.

• So Jordan has been, and still is, wiring around the adversarial foundation of our system in a way that is guaranteed in at least some cases to have evil consequences.

• Some of Jordan’s victims will get better, perhaps; that makes his actions no less evil: he’s using those who won’t get better as instrumentalities to help those who will get better.

There are people incarcerated right now because Jordan decided to play this game. This has been going on for months. I reached out to Jordan through a mutual friend, and explained what I’ve explained above.

And yet he persists. So now it’s got to sting, and more importantly now it has to be seen to sting, lest some future judge get this same cute idea.

Below the payline: Mean-Girls Warfare.