Monday, January 20, 2014

Judge Brad Hart's Take on the Differentiated Docket System

Editor's Note:  When I started this blog six years ago, I was a prosecutor who wanted to respond to criticism of Harris County D.A.'s Office during the Chuck Rosenthal scandal.  Over the years, as I've switched to Criminal Defense and the blog has evolved, my hope has been that the blog would become a forum where prosecutors and defense attorneys and anyone else in the CJC could share opinions and/or argue with each other without fear of repercussions for speaking out.   Most judges usually refrain from commenting (at least publicly), but I'm always glad when they offer their input.  Judge Hart has commented here before and I was glad to see him be willing to add this commentary about the Differentiated Docket System.  I wish more judges would enter the dialogue here, as well.  

Here's what Judge Hart had to say:


Alright, I'll throw in a few comments or 10. First, I would like to say that I appreciate HCCLA taking comments on the system. I hope that people will take Murray up on his offer, either here or offline. I think those of us trying out this system are more than willing to listen to ideas and comments. I know I am more than willing to listen to any and all constructive comments, ideas, etc. Just saying something sucks, though, with nothing else much to add, doesn't get as far. For years people have complained about this or that about the dockets. I can't even begin to count the number of times I've heard people say, "Something needs to be done." Well, whether you think it is good or bad right now, we are at least trying to do something. I realize that some people are not going to like it just because it is new/different and some people will never give it a chance because of that fact alone. Additionally, this is not something we just made up. We met with the HCCLA Board, the PD's Office and the DA's Office at least a couple of times before this. This particular system has been implemented in several other jurisdictions with much success, even after much initial complaint.  Several of the judges (I was not one of them) went to Ft. Worth to observe this system there. They talked with the judges and attorneys, both sides, and came back impressed, from my understanding, with how well it worked. Having said that, so far, there are several things I like about it, some things I don't and  a few things I am just not sold on. But since it is new and since it is a process, I try to keep an open mind about it, listen to constructive comments and ideas to improve and give it a chance. It is going to take more than a few months for a final verdict. It will also need adjustments, I'm sure, here and there. We have already made a few based on our observations and constructive comments from some.  

What really drives me to comment, though, are what I see as exaggerations and/or misconceptions out there in the public. Let me also say, I am speaking ONLY for me, not any of the other courts. Plus, I don't see the other DCM courts function. I only see what is going on in the 230th. 

Let me say this about ADAs getting their work done. If the extra office days, when they spend the whole day in their office, are not helping them get to do's done then they sure as heck are not going to get those same to do's done with only a half day in the office because the other half they were in court with a full docket. And the comment about ADAs needing to know their cases, I agree, yes they do. The comment about each ADA having 60+ cases a day being too much (easy enough?), not sure what you mean. M-Th we only have the PACA and new arrest MADJs, so maybe 10 or so cases a day that the chief alone comes to take care of. Not near 60 a day each. On my Friday docket day (Super Docket Friday we affectionately call it) I guess it is possible each ADA has 60 cases each but that is a far cry from 60+ each day each. But realistically, I seriously doubt each one has 60+ cases to be familiar with on Super Docket Friday.

Frankly, several of the comments people have made here, if accurate (and by that I mean not guesses or wild exaggerations) I agree with. IF there are 250 cases on a single docket, that is certainly WAY too many, in my opinion. My thought is 120 is about the max it should be. With the exception of the recent holidays, we try to keep it at about 90. We had 88 last Friday and currently sit at 65 for next Friday. That is certainly workable. Also, dockets are staggered 9,10,11. This is something I've heard people wishing about for years. But getting attorneys to actually show up and take care of business at their scheduled time is like pulling teeth. As for the crowd in the audience, I tell the audience almost every week that if your reset says 10 or 11, I do not expect them there until then. But the bonding companies tell them to be there at 8:30 no matter what. So, it still gets crowded. I understand what the bondsmen's issue is but still if the court says 11, 11 is the time to be there. The bailiffs, CLO and clerks not having help is not a good thing. My understanding though is there would be extras on docket days. I know we have extras of each on our Super Docket Friday. I agree standing in line to see everyone is not fun nor productive. Regarding the lines to see me and the coordinator, after a month or 2, we made adjustments, after some people came to me with constructive thoughts that have significantly cut down on both to the point that I am not sure you can even call it a line any more. That's half of the "4 lines" right there. 

Now for the line to talk to the ADAs, this has been and continues to be a problem in my view.  "Forget having any meaningful discussion about your case." "Might as well reset and deal with it out of court." Umm, EXACTLY! That is exactly what you are supposed to be doing under this system. This is exactly the way it works in those other jurisdictions. Do your work, investigations, discussions, requests, to do's, plea negotiations, meetings, etc. OUTSIDE of courtroom. In court should be to update the court, make sure we are progressing to whatever resolution we need to progress to, get the judges input, ruling if needed, etc. This does not happen. Even this past week, 3 different attorneys came by to see the #2 to talk about cases not on the docket, thinking it was a regular docket. We told them she was in her office and would be happy to talk to them down there. GO MEET WITH HER.  Did they do it? Nope. On Super Docket Friday, I've heard attorneys say that the ADA doesn't have time to talk to me. Every time I hear it, I ask them if they even attempted to talk to them before today. The answer is always no. 

For a while, I even took to emailing EVERY attorney, ADA and Defense, on every single case at a certain point in the settings, so they would have each other's emails, 7-10 days prior to their next setting asking them to please have to do's done and  discuss everything outside of court before the next setting to make things go more smoothly. Out of hundreds of emails I sent,  maybe 7 times people told me they actually did it. I have to say, because each week I would ask, it was usually the State who said they called or emailed the Defense and the Defense would admit they never responded, even after admitting they got my email.  But they would then complain about having to wait to talk to the ADA in court. I became so frustrated with spending a lot of time sending those emails and then being told that they were basically ignoring them that I stopped sending them. I have heard from several defense attorneys that they can't get ADAs in other courts to respond to them. I understand and don't doubt that happens. Again, I only know about my court though. Now, every single time the Defense has told me that they have done this or that and the State has not done what it was supposed to do, I have let the State have it. They are indeed held accountable for timely production of records, reports, etc. When the State tells me they will have something done by a certain date, it dang well better be done or they are going to end up with any non-exculpatory evidence excluded. Get it done or lose it. It has generally motivated them to stay on the ball. I've noticed though that when I have gotten on the Defense for not doing what they were supposed to, well, frankly they just didn't care. I've had people tell me that they just basically didn't feel like getting it done, or it doesn't matter to them. "Judge, if you give me a month I will provide XYZ to the State so we can resolve this." A month later, "Judge I didn't do it. My bad. Can I have one more reset to get it done." Heard that 4 times Friday. But Lord forbid you don't do something for them on time. In other words, I understand frustration.

As I mentioned above, another issue is that attorneys refuse to show up for the docket time that THEY picked. I have 9, 10, 11 am dockets. Pleas are set at 9 but otherwise attorneys pick which docket they want to be on. I get out there at 8:30 for anyone who wants to come early. Last Friday was a typical example of every Friday docket for the last 3 months. I came out at 8:30. With a 9am and 10 am docket, including pleas, it was 10:30 before I took a single plea or had someone approach me with something I needed to get involved with. But at 11, everyone shows up and wants attention all at once. Imagine if people came at the time they picked. Might help with the line situation. Just saying. It happens every week though. I point it out to people and next week it's the same thing. I'm sitting there from 8:30 to 10:30 asking the clerk if we have any prospects of work coming our way. That is frustrating also because the coordinator, CLO, clerks and bailiffs are ready to rock and roll by 9 and when nothing happens until between 11 & 1 they are still there way after the attorneys leave, doing things that could and should have been done first thing. Look, stuff happens to make people run late, I get that. People get stuck in other courts, I get that. But if you pick your docket time and you NEVER show up at your time and then complain because you have to wait, I just don't have as much sympathy for you. If you know you have a plea at 9 in the 230th, or wherever, come get it taken care of then on to the rest of your day because, so far, there is usually no line for anyone and ZERO happening then. On rare occasion I've seen attorneys come a day or 2 ahead of time, get plea papers done ahead of time, then have the plea done out of there by 9:15. Plus get paid for the out of court work. By rare, I mean that novel but seemingly awesome idea has happened twice.

As for the length of the resets, the lengths are based on reasonable time frames that cases should move along and are different for different types and complexity of cases. Generally 30 days for the first setting, 60 days for the second, and on out from there until trial setting. Really only one setting that might be less than a month. Again, the idea is to get to an appropriate resolution, whatever that may be, in a reasonable time frame. That is shorter for some types of cases and longer for others. It depends.  

I can't say it enough. I am certainly happy to listen to constructive ideas and make adjustments to help. This system has yet to prevent me from making a change or exception where it is appropriate. Having said that, it is my suggestion that people do their part as well. At least give it a shot. Work on and discuss the cases with the other side outside of court and show up on time for the docket time you pick. Try that out and see if works any better for you. If it doesn't, let me know. Like I said, there are things I like about it, things I don't and things I'm not sure about yet. 

One more thing, since Chris (Downey) brought it up and I have been called out on this in the past -- E-filing was going on in the 230th before I got there. When I got there, I kept it going. I was told that at some point it was going to be mandated by the CCA for all criminal courts in Texas. It is my understanding that it has in fact happened. E-filing will become mandatory for all criminal cases in Jan. 2016. I know it is a ways off but it is coming. So, folks need to start figuring it out. People complain that I will not let the clerks take hard copies. Well, first off, there are signs in the court saying we are an e-file court. We are listed on the district courts' website as an e-file court. If there is any way else to inform people, I am happy to do that. Additionally, despite the fact that yes, I make the State only e-file, I have yet to not take a hard copy from the defense when they "needed" to file it right then or need a signature right then. If something has come up in trial, or whenever, I let people do what they need to do. If they need help, I do my best to help them. If the clerk's or sheriff's office says they can't, I say not acceptable. But since this place is like a high school gossip ring, everyone thinks I refuse to allow any hard copy filing. If you try to file something and the clerk says it needs to be e-filed, if there is an issue with that, all you have to do is come talk to me. No one gets in trouble and everyone usually ends up in one piece. To me, though, being able to sit in your office and e-file a motion for discovery, or whatever, as well as print out certified copies of signed motions is a lot easier that printing off copies and bringing them down to the CJC. Maybe that is just me. Heck, we even finally got it set up were we don't have to print them for my signature. It can all be done online. 

Alright, I've commented enough. Not trying to offend anyone or discount the fact that people are unhappy at the moment about the DCM courts. I'm just giving my view from the elevated seating in the 230th. I've seen the lines and the bottlenecks. We've tried to adjust things to help. I am willing to listen to constructive ideas, etc. that might help. My questions are: have you tried doing things the way it was designed? If so, and it is not any better, will you come tell me why? If you haven't tried it, will you try? 
Thanks for listening.

Brad Hart

12 comments:

Anonymous said...

Great post by someone with a front row seat, and he actually gives comments that would help the system.

Anonymous said...

It is really bad from the defense perspective and your response basically states that you don't care what we think because it is our fault for being lazy. I am offended that you say you are willing to listen to ideas but then criticize every opinion or suggestion that is offered. Your experiment has failed. It is time to face it.

Anonymous said...

Well, Anon 8:12, obviously you can read what you want into anything you want. Your comment is a perfect example. YOU can say I don't care all you want. Doesn't make it true. You are entitled to your own opinion but not your own facts, as Stuart Varney says. The fact is, I do care. You can believe that or not. Up to you. YOU can say that I criticize "every" opinion or suggestion that is offered. Doesn't make it true. I do take issue with people who say this doesn't work but don't try to follow it as designed. Or make statements like there are 250 cases on a docket. Not true in the 230th. Or 4 lines out the door, not true in the 230th, at least not any more. Each ADA has 60+ cases a day. Nope. "Criticize every opinion or suggestion offered"? Have you been present at every meeting with HCCLA? Were you in my office when some attorneys have dropped by to talk about the system? We've had good discussions where concerns are voiced, addressed and ideas exchanged to make it better, if possible, better understanding of each other. If I didn't care, I would not have made adjustments based on suggestions from those few attorneys willing to come talk to me. That is a fact. I am willing to make further adjustments, as needed. THAT is a fact. Am I ready to declare it a success? Nope. Am I ready to say it is a complete failure? Nope. Not yet. I encourage people to give ideas to Murray, HCCLA or directly to me. FACT.

The things I pointed out though, like it our not, offensive or not to you, are FACTS as well. I didn't do it or make it up. Attorneys not showing up at the times they picked, my sitting there for 2 hours with nothing going on, attorneys telling me they have not tried to discuss the cases out of court, telling me that they got my email but did nothing at all, said they were going to do something but didn't are FACTS. Wish they weren't but they are. Hundreds of emails and about 7 actually responded. FACT. If you can't understand my frustration at that then I don't know what to tell you. If you have tried to do it as designed and are still frustrated at the system, I am genuinely interested in the how and why? I am sincere in that but if you don't believe me, that's on you. I'm trying. My post was not meant to offend but to point out what I am seeing. Sorry if that is offensive but it is what I am seeing. I offered my suggestions on how it is suppose to work. Have you tried those suggestions? If you have not, why? Will you? If not, why not? If you will, did it help? No. Why? Or have you given up and I'm just the jerk? (That last part is rhetorical.)

Brad Hart

Anonymous said...

Murray, when are you going to give us some enlightenment on AG candidate Barry Smitherman?

A Harris County Lawyer said...

Anon 8:12 p.m.,
Just because a suggestion is made doesn't necessarily mean it is a good one. Judge Hart is entering into a dialog about the pros and cons, but that doesn't mean he has to agree with the suggestions. I was hoping for more specific issues that could be divided and addressed rather than sweeping statements such as "Your experiment has failed. It is time to face it."

Anon 12:29 a.m.,
I don't usually weigh in on statewide races. I vaguely recall Smitherman from when he was at the Office, but he didn't stay long enough for me to ever work with him or get to know his reputation. I know he didn't honor his three year commitment with the Office, which is a big deal. Folks that don't honor the commitment can sometimes be viewed as using the office to pad their resume.

It does sound like he is greatly inflating his importance at the Office for a guy who didn't even stay there for two years.

Anonymous said...

I read back over my post, and I can see where some would take it as me saying attorneys are lazy. That was not what I meant but I can see it coming across that way. While what I said is true about the responses I get, the things I see, and I am frustrated by them, I think it has a lot more to do with this being a "radical" change over the way things have been done here for decades upon decades. I do not think the vast majority of attorneys that come through here are lazy. We all know there are indeed lazy ones, on BOTH sides, but the vast majority are not. Believe it or not I have tremendous amount of respect for most of you out there. The ones out there that know me and have dealt with me for the 17 years I have been down here know that, I hope. If you don't, well I hope to change your opinion on that.

I will say that I think another issue is lack of communication with the defense bar. We can talk to one person at the DA's office and the whole office knows what we are looking for in the system. We can talk to the PD's Office and the HCCLA Board and they can post on the listserv but does that mean all the defense bar gets the info? I've had a lot of attorneys tell me no. So, how to get the word out is a difficulty also. Another good reason to have this blog and to give your comments to Murray. By the way, is it ok that I mention the listserv? I mean I tend to call it the Big Footserv. I've heard of it. People say it is out there. Some claim it exists. Some say no. I've never seen it though. Anyway, it's been about 4 months after decades of doing things one way. It is a huge change for everyone involved. I understand that.

Brad Hart
P.S. Murray, one of these days I'll leave a short comment.

Steve Januhowski said...

I worked with Smitherman for a time and he was a good attorney, and a good guy. He left the office after getting appointed to the Public Utilities Commission by Rick Perry. He is from East Houston, went to A&M, then grad school at Harvard.

Anonymous said...

Sounds like a good response, and I can't believe that there are people who still only talk to prosecutors during a setting. However, there are prosecutors who are only available then. Judge Hart says he cannot speak for other courts, but the other courts are the problem. When commenting about courts generally, defense lawyers cannot find such an easy escape as "I'm only talking about my court..." They have to deal with every judge and every prosecutor in several courts.

When every judge dockets things like this, it'll get better. Until then, it may make things more difficult because you have several systems instead of a unified one. The admin. judge needs to piss or get off the pot, and make it the rule in every court.

I still think a huge reason for complaints by defense lawyers is that solos take too many cases. They're always late because they're always juggling too many balls. They can't focus on any one case, because they have dozens too many.

And I still think ADAs are less than properly acquainted with their cases, which contributes to frequent resets.

Anonymous said...

And getting the HCCLA board involved is a waste of time. They can't agree amongst themselves, much less speak for the bar.

Anonymous said...

In response to Judge Hart's comment on attorneys not appearing at 9, 10, or 11 as scheduled: defense attorneys don't have all that much control over setting dates. Some coordinators have very firm ideas about the date you can reset a case. As a result you may find yourself with several settings you didn't really want in other courts in addition to the super-docket court. It's not easy to manage this, especially if your super-docket setting is at 10 or 11 and you go somewhere else and get stuck there (as often happens).
Is there a way to allow some flexibility for something (getting stuck elsewhere) that happens to all of us?

Anonymous said...

Anon. 8:10, I see your point. I think I said in one of my comments that I know people get stuck in other courts. It use to happen to me when I had 8 courts to cover. So, I do understand. If I'm not swamped or focusing on something, I try to say hi or good morning to attorneys when I first see them. Certainly, when people let me know that they got stuck somewhere, I understand. Wish it didn't happen but I understand. Some are habitual about it though. Anyway, what really gets us behind is people not coming between 9am and 10am for their pleas. Again I come out at 8:30 for anyone who wants to get on with it early. If you are set for plea or sentencing at 9am and you come fairly close to that, I will try to get you on your way. If there is a hold up on our end to get you moving along, let me know. As for other courts, we, those of us doing this project, were told that the other judges had been asked and for the most part agreed to give us, the DCM courts, a "little" deference on settings and getting to our courts. We need that to see if this will work. Not saying we are more important than their courts, just saying it would help us to see if what we are trying it working. Reading between the lines, I am guessing that is not happening. I will bring this up at our next DCM meeting.

For the other comments about only speaking for the 230th, I get your point. My point in saying that, since the 230th was identified in the original post (rightly so since we are DCM court) is I did not talk to the other DCM judges before making my comments. I have not talked to them since making them. Heck, they may no longer talk to me since I broke kayfabe and commented publicly. So, again, I see your point. There are other courts involved, not just the 230th. I also understand the majority of courts are not yet in DCM. I do think that if more/all courts get in, it would make things more uniform and POSSIBLY better. I don't know if or when that will happen. For the time being, since most people post anonymously here, if there is a specific issue with a specific DCM court, tell it to Murray or post it here. If it is mine, I'll try to address it. If it one of the other courts, I will at least tell them about it at the next DCM meeting or they will read it here.

Anyway, good points. Next time we have a DCM meeting, I will share them with the others. Assuming, I'm not banned. (Just kidding. We are all friends. I think.)

Thanks,
Brad Hart

Guiney said...

I agree with Judge Hart's comments regarding the DCM. Like him, I welcome an open and constructive dialogue about issues anyone is having with this new system. We knew at its implementation this system would need to be tailored to fit some things that are unique to this county and the lawyers who practice here and we've always asked (begged actually) for suggestions to make it work for all of us.
Guiney