There’s been lots going on at Fort Bennett:
Promotion of the First Amendment Funding Organization (FAFO).
Filing of certiorari petitions in Barton/Sanders, Moore, Chen, and Soto (the State has filed responses in Barton/Sanders and Moore; below they payline, what I think it will mean if the Court denies certiorari).
A girthy brief in Ex parte Couch, in the Court of Criminal Appeals (have you ever thought about the difference between “manner or means” and an element, I mean really thought about it?).
Petitions for discretionary review in Claycomb (the Online Solicitation statute) and Owens (stalking by threat). PDR has been refused in Owens; we’ll probably file a cert petition on that one, since it’s the same issue as in Counterman v. Colorado.
I’m doing more leisure reading as well. You might enjoy Stacy Schiff’s biography of Samuel Adams. I had learned nothing of him in school, perhaps because the man left almost no record of his own existence, but he was arguably the instigator of American independence.
(And perhaps you would support FAFOrg through Amazon Smile.)
All of the litigation in the first paragraph is aside from my regular practice of law; it’s what I call special projects—battles, often pro bono or low bono, that I take on not because of their effect on the client, but because of their broader effect on the world. Sometimes it’s high-level litigation; sometimes it’s ordinary trench warfare with a higher-level strategy. Often the trench warfare becomes high-level litigation—I’ve shepherded Sanders, Moore, Chen, and Soto from the trial court to SCOTUS.
One of my favorite special projects ever was against Mike Fields, of Harris County Criminal Court at Law 14, in the summer of 2014. My contemporaneous account, to the Harris County Criminal Lawyers Association Executive Committee:
Every day in Court 14 people are pleading guilty at arraignment without counsel. Fields is telling them that they have the right to counsel, but then not asking them if they want counsel before asking them for a plea. (He asks them afterwards, so that they can get counsel for punishment.)
…
I also think that we can quickly derail this train, and give Fields a much-needed whack across the knuckles (which might deter him from looking for other ways to screw the accused), by distributing cards warning defendants against pleading guilty without counsel. Please see the attached, which would be the front and back of the card.
We printed these cards (Spanish translation on the back), and distributed them outside Court 14 one morning. The press showed up:
https://abc13.com/judge-lawyers-rights-legal/144942/
Fields claimed to the press at the time, “I'm following the law to the letter and the spirit as well.” And then he … stopped doing what he’d been doing, because he knew he was wrong. Fields publicly accused me of being untruthful about the event, but later admitted to me privately that I—and by extension HCCLA—was right. Obviously I was right, or his ego wouldn’t have permitted him to stop.
He claims now:
I disagree with your recollection of history. I didn't bully anyone into pleading to anything and never addressed you as lying about anything to anyone.
The topic of bullying came up because Judge Darrell Jordan of Harris County Criminal Court at Law Number 16 is bullying defendants unlawfully, and I see Fields’s fingerprints all over his conduct.
After we put an end to Fields’s bullying lawyerless defendants into pleading guilty, he devised a new method, which worked even when they had lawyers:
That’s a show-cause order charging Mr. Flores with contempt of court for failing to abide by his conditions of bail.
It’s not a valid show-cause order. Due process requires that a show-cause order give the alleged contemnor enough notice to defend the case, and this order is plainly insufficient. Any contempt order based on this order is void.
The same day, Fields held Mr. Flores in contempt, sentenced him to 180 days in jail, and probated the jail sentence for a year:
This order is false. This “disrupting the proceedings of the court” language applies to a direct contempt, not a failure to follow a court’s orders, which is an indirect contempt. Flores was not “present in” the court when he failed to follow his conditions of bond. A defendant does not disrupt the proceedings of the court by his conduct outside of court. (Have you noticed yet that Mike Fields is a liar?)
Indirect contempt triggers the full panoply of constitutional protections: the right to due process (notice and an opportunity to be heard), the right to counsel, the right to cross-examine one’s accusers, the right to remain silent, the right to have witnesses testify on one’s behalf, and so forth. An indigent defendant in an indirect-contempt proceeding gets appointed counsel.
Flores had counsel on the underlying case, Gerald Francis, but appears not to have been represented at this show-cause hearing:
Even aside from the legally insufficient show-cause order (a deficiency that cannot be waived), there is no way that, held in contempt the same day the show-cause order issued, Flores had sufficient opportunity to be heard.
There are many other such cases. Some provide a little more notice, some less. Here’s a good one:
The same day that was issued, apparently also without a lawyer, Mr. Andrus was held in contempt (180-day jail sentence, probated for one years) for … nobody can tell.
I say “without a lawyer,” but most lawyers don’t know anything about indirect-contempt proceedings, so even if these defendants had lawyers, they didn’t have lawyers who saw the obvious defects in the show-cause orders, or in the process generally.
Over a period in which all 14 other County Criminal Courts together had about 120 docket entries on show-cause orders, for things such as “juror didn’t come back after being ordered to” and “defendant broke holdover window,” Fields had more than 450, mostly for violations of conditions of bond. There will often be multiple docket entries for a single case, so this is not “number of cases,” but “general scale.” I know of no other court in Harris County that ever held a person in contempt for violating conditions of bond.
I don’t think the law even allows a court to hold a person in contempt for violating conditions of bond (there’s no clear authority, but I’ve got an argument) but even if it does, it requires notice (a sufficiently detailed show-cause order) and an opportunity to be heard, neither of which most of these defendants received.
(I realized, as I was researching this post, that I’d been told in an email in 2018 that Fields was holding people in contempt for violating conditions of bond, but I guess I’d had other things going on, because it hadn’t clicked that there was something I could do about it. Mea culpa. Anyone know what the statute of limitations for a Judicial Conduct Commission complaint is?)
I thought of Fields when I heard what Darrell Jordan, the judge in County Criminal Court at Law 16, is doing: holding people in contempt for violating their conditions of bail, with insufficient notice, sentencing them to six months in jail, probated for a year.
Again, the show-cause orders are insufficient notice, resulting in void contempt judgments; again, Jordan is sentencing contemnors to six months in jail, probating the sentence for a year.
Jordan’s hearings, when there is an alleged new law violation, are the State offers into evidence the new charging instrument, and the judge finds the defendant in contempt. Lest you think I exaggerate, here is a transcript.
We don’t know what Fields’s hearings looked like, but that transcript shows no proof beyond a reasonable doubt. (Jordan, of all people—indicted in Fort Bend County for official oppression—should know that an accusation is not proof.)
And again, the judge is lying in the judgments, which is a shame, since Jordan (unlike Fields) has a reputation as an honorable man, and not a sociopath.
This is a lie from the first word. The alleged bail violation didn’t occur on December 13, 2022; it occurred on December 5, 2022. The hearing took place on December 13, 2022. And Estevez was not present before Jordan when she committed the new law violation; that’s why Jordan had the hearing in the transcript above.
(Devil’s Advocate says “they’re just using the only contempt-judgment form they could find.” I say, “these are experienced lawyers and judges, who must be held responsible for their magic words.” I suspect them of doing it deliberately, to obfuscate the fact that they are sentencing people for indirect contempt, which requires more process than direct contempt; I think Jordan’s reputation as an honorable man is likely specious.)
Now, Fields has been sitting as a visiting judge in Court 14 while Jordan serves in the reserves, and Fields is the only other Harris County judge whom I know to have used contempt to punish bail violations. The dots between Fields’s conduct and Jordan’s are not hard to connect.
And even if they were, one of my colleagues reported that Fields was in the courtroom when the colleague was arguing one of these hearings, and Fields even commented afterward about one of the colleague’s arguments.
Fields absolutely knows what Jordan is doing, and by all appearances is counseling him.
But when I confronted Fields with Jordan’s conduct, he denied knowing anything about it. Fields is sociopathic, and should by no account be sitting in any court; he ran for Attorney General last year, which I think would be the perfect position for him.
Below the payline: What we are doing about it. Also, what cert denial in Barton/Sanders will mean.
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