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On The Merits

Immigration Judge Prevails in Recusal Dustup

A recently resolved dispute between an Iranian-American immigration judge and the U.S. Department of Justice illustrates how easily one can get carried away with the idea that some judges cannot fairly hear certain cases.

Judge Ashley Tabaddor has heard immigration cases since being appointed to the bench in 2005 by the U.S. Attorney General’s Office. She also is a former Assistant U.S. Attorney and former federal law clerk. She has taught courses and written extensively on immigration law since beginning her legal career. In other words, she is eminently qualified to hear immigration cases after 10 years on the bench.

In 2014, Judge Tabaddor sued the Justice Department in response to a recusal order entered against her in 2012 after she attended a roundtable hosted by the White House Office of Public Engagement and attended by Iranian-American community leaders. The order, which the judge said violated the U.S. Constitution, prevented her from hearing any cases involving people from Iran.

Whether it was xenophobia or something else, the Justice Department stood behind its position through a series of court filings and hearings until finally agreeing to drop the recusal order and pay Judge Tabaddor $200,000 to in attorneys’ fees and nearly $6,000 in damages.

This situation is not unlike a case in 2009 when San Francisco Judge Vaughn Walker found that banning same-sex marriages was unconstitutional. After the ruling, Walker faced a chorus of undeserved (and often vitriolic) criticism because the judge himself is gay. As pointed out by the California Attorney General, no attempt to bar a federal judge from hearing a case because of race, gender, or religion has ever succeeded.

Think about it: Should Baptist judges be barred from cases involving Baptists? Should Hispanic judges be barred from hearing cases involving Hispanic litigants? And if you think that’s okay, then who would hear divorce cases between a man and a woman?

The fact is that family law judges rule against litigants of their own gender every day in this country. That’s because they are chosen in part for their judicial temperament, which means keeping an open mind and going where the law dictates, regardless of which litigant most resembles them. Judges who can’t do that – and it’s more likely loyalty to money than any personal characteristic that leads them astray – have no business being a judge.

Kudos to Judge Tabaddor for standing up for what’s right. She could have just accepted the unfortunate insult and moved on. Instead, she spent her time and money fighting what is clearly an injustice. Good for her, and good for all of us.

Posted: 11/23/2015 10:37:30 AM by On the Merits Editor | with 0 comments

Texas Bar Foundation Celebrates 50 Years of Giving Back

We’ve said it before, but it bears repeating: a single lawyer behaving badly will get far more attention than thousands of lawyers doing great things for, say, half a century.

Case in point: the Texas Bar Foundation. The Texas Bar Foundation is the largest charitably funded bar foundation in the nation, and its members – Texas attorneys chosen for their dedication to the profession and the administration of justice – have awarded more $16 million to charitable organizations throughout Texas since 1965. The funds are provided by lawyers and law firms who care deeply about their communities and wish to provide legal services but cannot afford them.

Recent contributions include the Texas Advocacy Project, which provides free legal services to victims of domestic violence, sexual assault and stalking all over the state. In 2014, the Project provided legal services to nearly 10,000 Texans. The Foundation also provided assistance to the Metroplex Military Charitable Trust, which provides economic support to local regular, reserve and retired military personnel. Over 70 percent of those who attend the Trust’s legal clinics are unemployed, and some are homeless.

Those are just two of the more than 1,100 grants the Foundation has made since 1965, including 72 this past year. And all was made possible by the lawyers of Texas getting together to make the world a better place.

Today is the Texas Bar Foundation’s 50th Anniversary.  Congratulations to the Foundation on 50 stellar years of serving the profession and the state of Texas – we look forward to the next 50!

Posted: 11/19/2015 11:08:29 AM by On the Merits Editor | with 0 comments

Judicial Transparency Report Finds Few Conflicts

Every year, The National Law Journal publishes a “Judicial Transparency Report” based on financial reports filed by federal circuit judges from across the U.S. The report reveals who pays for judges’ expenses when they travel for speaking engagements, judicial workshops, and other events in which they participate.

The most recent report --- which covers the 2013 calendar year – reveals that only six of the 802 reimbursements that judges reported for 2013 came from legal advocacy groups, and those groups took positions in only three cases heard by the judges in the following year and a half. In each instance, the advocacy groups had filed amicus briefs and were not actual parties to litigation. 

The National Law Journal interviewed the lawyers who lost the three cases; significantly, they unanimously agreed that they saw no conflict based on the judges’ reimbursements for travel expenses by the amicus filers.

Federal judges often come under intense scrutiny for their subsidized travel for speaking and interacting with legal groups, but such criticism is often painted as being much more sinister than reality. While judges need to be impartial and willing to fairly consider all sides of an issue, that doesn’t mean that they should be locked up in chambers for fear that the outside world will somehow taint that impartiality. By contrast, the best judges are active in both the legal community and the outside world because so much of what they are asked to do depends on their understanding of the context in which the cases and controversies arise.  

Lawyers generally understand that notion, and most are intensely interested in hearing from members of the bench on a variety of issues so long as judges avoid the appearance of impropriety and don’t cover cases or issues that are (or may end up) before the bench. But judicial polls will tell you that the really good judges have attorney approval ratings in the 80-90% range, numbers the average politician will see only in their dreams. Numbers that high mean that even most of the lawyers who have lost before that judge believe the judge is doing a good job.  

When most lawyers think that a judge is impartial, regardless of outcome, that’s usually a pretty good sign that’s exactly the case.

Posted: 11/18/2015 4:44:01 PM by On the Merits Editor | with 0 comments

Targeted Judges Illustrate Occupational Dangers

The recent news of a shooting that targeted a Texas state district judge and a series of death threats mailed to five Chicago-area judges are important reminders of the dangers often faced by the jurists, lawyers and law enforcement officials who work in our civil and criminal justice systems.

Judge Julie Kocurek of Travis County’s 390th District Court in Austin suffered injuries after being shot at in her car in her own driveway on Nov. 6. The judge survived the nighttime attack after being hit by shrapnel and broken glass during what authorities called an assassination attempt. Police in Houston questioned a man who Travis County prosecutors were proposing locking up for violating his probation in a plea deal over fraud charges. That motion was pending in Judge Kocurek’s court.  

In Chicago, court officials are reporting that five area judges recently received mailed death threats, including one that warned, “You are on a kill list.”

Threats against judges, lawyers and police officers are not uncommon, but violence against these groups is rare. According to statistics compiled by the U.S. Marshals Service, there were 768 threats made against the nation’s 2,000 federal judges in 2014. No such statistics are recorded on the state level. The incidents in Austin and Chicago are the most recent, but most Texans still remembering the 2013 Kaufman County murders of assistant DA Mark Hasse and DA Mike McLelland and his wife Cynthia. Defendant Eric Williams was sentenced to death last December.

Any time a member of our legal system is targeted, it represents an extreme threat to our system of justice. Criminal court judges and prosecutors probably face the greatest dangers, but others, such as family law judges and lawyers, are just as susceptible when they work in emotionally-charged environments. We all should be concerned when intimidation and violence are used to prevent our courts from carrying out their duties. 

Here’s hoping for a speedy recovery for Judge Kocurek and eventual justice for those responsible for her shooting. And a hearty thank you to all those attorneys and judges who man the front lines of our criminal justice system.   

Posted: 11/13/2015 3:19:26 PM by On the Merits Editor | with 0 comments

Houston Lawyer/Legislator Making Push for Jail Reforms

A recent article published by the Houston Press details the ongoing battle between Texas bail bond industry and Houston Sen. John Whitmire over the senator’s proposed reforms to prevent nonviolent offenders from remaining in jail simply because they cannot afford to post bond. Whitmire is a lawyer and Chairs the Senate Criminal Justice Committee, which recently met to discuss potential solutions for the state’s overcrowded jail system. 

During the meeting, Whitmire specifically focused on Houston jails, where 70 percent of the approximately 9,000 inmates have not been convicted of a crime and are awaiting trial. The senator delivered a sharp rebuke to the bail bond industry, saying bail bondsmen often allow nonviolent-offender clients to languish in jail in hopes that a family member will be able to secure a high-risk loan to pay their bond.

At least some in the industry do not agree with the Senator.  Glenn Strickland, vice chairman of the Harris County Bail Bond Board, told the Houston Press that those who can’t afford a $500 or $1,000 bond should remain in jail because their inability to borrow enough money from a relative or friend means they “in all probability burned everyone they've come in contact with. They're just those kinds of people.”

There are many side issues and back stories percolating behind this ongoing debate – from concerns about how bail bondsmen conduct their business to why courts in some Texas counties regularly allow personal recognizance bonds and others do not. But the underlying issue that Whitmire is attempting to address – whether non-violent offenders should remain in jail simply because they are poor – is an example of lawyers who work in the justice system trying to improve the justice system.    

Posted: 11/6/2015 9:32:42 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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