Thursday, November 19, 2015

Leaving the World a Better Place for the Next Generation

The Baby Boomer “Me” Generation is Retiring…….

Hallelujah.  If there is one thing that rings true, it is putting others and most notably our kids first. For all the Baby Boomers who did this- this article does not apply to you. Thank you. You are the exception. Bravo for making the world a better place. You get that the unspoken obligation of every generation is to make it better for the next. Starting with all the Baby Boomers who forced your kids to pay their way through higher education when you could have helped- shame on you. “I wanted them to value it more by earning it themselves” is just a lame excuse to cover up a selfish agenda. The world is never a better place when others place their happiness above all else, especially an entire generation. Kids by nature need help. Those who do not get it are at a great disadvantage. Sure, some rise above it all, but trust me- they have no love lost for the Baby Boomers who spent a lifetime indulging themselves at the next generation's expense.

The irony of it all (some would say hypocrisy). Born in 1968, I am a part of the no name generation literally called “Generation X”. My kids are now the “Millennials”. My generation was raised by the Baby Boomers.  So what was that like? One word: ironic.  I grew up in a time where Ronald Reagan’s “war on drugs” filled the prisons for decades based on possession of  the tiniest amounts, yet the Baby Boomers who passed such laws grew up in the  Woodstock era: free love, drugs, LSD, you name it. Forget arrests or prison, they prided themselves on such rebellion as a badge to be proud of in the name of open-mindedness. Yet it is they who passed the current laws where you can’t even have a social drink without seeing highway signs that scare the piss out of you with ominous messages of “Drink. Drive. Go to Jail.” 

It was generally accepted that my generation had to get a college degree to provide for a family. The Baby Boomers were raised when jobs were a plenty and a blue collar father with a high school education could raise a family of four. Speaking of which, the Boomers experienced college tuition at rates that anyone could afford ($15 a semester hour, are you kidding me?). Now a college degree costs more than an average house, so kids have mortgaged their future before they even begin. Shame! Look at Germany where higher education is free! How are we to compete worldwide and on an equitable scale, not just the kids of the wealthy? As the Boomers got into power, they tightened the belt in every department. A ridiculous example would be the curfew laws in many major cities where young people can’t even be out on the streets after a certain time after dark.

Yet the irony of it all is that the government debt shutdowns prove there is not enough money for the Boomers’ social security, Medicare, and other services.  While Generation X and the now the Millennials have clawed for everything they have earned, we are now being told nothing will be left for us.  What goes around comes around. It’s hard to have sympathy for the seniors with Porsches in their garages gripe about the government when they refused to help their own kids when they needed it most. People must reap the repercussions of their own choices. There must be accountability in policy. “X”ers and Millennials are too busy figuring out how to reverse Baby Boomer death knells such as unaffordable higher education and curbing a health care and insurance debacle free for all to worry too much about the Boomers’ retirement accounts disappearing due to a greedy, unregulated Boomer Wall Street meltdown that started in 2008 from overvalued mortgages and inequitable reverse mortgages that benefitted, guess who?

Many Boomers spent a lifetime indulging themselves at the expense of their kids and future generations. The national debt has spiraled out of control while the Boomers are grateful it is not their generation that has to pay it back. I for one am making choices that look forward.  I view my kids’ education as a privilege and obligation I am honored to fund, not a sacrifice. I view my future grandkids’ happiness (health care, education, robust economy) as more important than going into more debt for insolvent government programs that Boomers should have otherwise planned for. Boomers have always preached with social security “there will be none left for you.” I don’t think they realize the rest of us don’t expect it. We are too busy focusing on contributing to a better future so our progeny won’t experience what we experienced. The Boomers have spent a lifetime focusing on their present. That present is almost gone. Time to look towards the new millennium and not repeat the same mistakes. Society is not bettered focused on itself. Time to leave it to the generation that in altruistic fashion will certainly leave an “X” marks the spot in all the right places. Let that be the mark of Generation “X”.

Moral of the story, as these Boomers age into the sunset- they should expect exactly what they have given.  As for me and my husband, we thrive off sacrifice. We don’t view kids as a burden but a gift. We could care less about Caribbean vacations if that means our kids struggle. All 3 kids currently in college and grad school have received our full support and they have earned excellent grades and never had to suffer due to lack of support, a fact I am most proud of. My happiness will never ever come before theirs. That is what each generation owes the next. As the Baby Boomers retire, all I can say is- good riddance to the “Me” generation. I am looking forward to righting the course of history for future generations. To sacrifice is to live. May America learn to value again the “Giving” generation, not the one caught up in themselves. Let history prove which one betters the world…

A few blog pieces that reference the Boomer “Me” Generation

Monday, October 26, 2015


Mothers Against Drunk Drivers started out as a good thing. There was a sincere concern that there needed to be more attention focused on the dangers of driving while intoxicated in order to prevent more deaths. What has happened; however, over time is not. A campaign which originated to encourage responsibility has morphed into an anti-drinking campaign at all costs. Now there are cottage industries economically dependent upon the number of DWI convictions, such as the interlock, home monitoring, and SCRAM companies. It is these industries that are writing and passing the DWI laws in legislatures all across the country. It is no surprise that the laws they pass require more of their products even when it makes no sense. For example, why should a citizen convicted of DWI under the intoxicating influence of a drug or medication be subjected to an alcohol interlock device?

The State of Texas is also dependent upon the DWI surcharges to the tune of billions of dollars in order to keep out of the red (although only a fraction of people ever pay it, which has created more uninsured drivers on the roads). Judges and elected District Attorneys feel pressured to cater to the demands of MADD lest they receive bad press. This affects judges’ decisions, district attorneys’ policies, and police priorities. Have the DWI fatalities gone down? Yes, but the numbers of arrests have gone up exponentially and disproportionately. “Tough on crime” advocates argue that the ends justify the means. They argue that it is ok if a few innocent suffer if it benefits the many. This circular logic is unconstitutional. 

Our system of laws guarantees that every citizen is afforded the protections of the Constitution and its laws. DWI victims are often paraded around by MADD as a battle cry in justifying the present day war on social drinkers. No one would ever justify the sufferings of any DWI victim. In that same vein, no one should justify the sufferings of a citizen accused where there is unjust punishment.

In 20 years, I have had misdemeanor and felony clients so stricken with grief and shame that even though their arrest did not involve a victim, nor had they been convicted yet or even received due process, they took their own life. Some of the many real repercussions that my clients suffer due to their arrests and subsequent convictions include: job loss, divorce, loss of housing opportunities due to a criminal record, loss of insurance, forced career changes, permanent unemployment, depression, anxiety and attendant health problems. These costs are often borne by not just the DWI accused but their families, friends, loved ones, employers, and of course the taxpayers. The 1.4 million DWI arrests in the US every year compared to the approximate 11k DWI fatalities do not add up. If the death penalty was the law for every DWI in which a victim died, this still would not prevent DWI deaths. Draconian judicial measures only serve to penalize the unwarranted.

The “one size shoe” policy does not fit all. Most first time misdemeanor DWI offenders never re-offend. They self-punish. The costs of putting all of them on traditional probation or incarceration is not justified when put on the scales, nor does it accomplish anything. The same for felony offenses. Some offenders require a different approach for corrective measures than others. To punish all for the deaths of an irresponsible few is not what our Founders envisioned when they created a system of “Innocent until proven guilty” and an 8th amendment prohibition against cruel and unusual punishment. 

I deal with the repercussions of this systematic knee jerk reaction of “tough on DWI policies” every day. I have seen countless lives destroyed in so many different ways, all without necessity where better means could be employed. It is time for judges, jurors, and prosecutors to take to heart that every case is different. Every person has a different way of being reached and many teach the lesson of having made a mistake to themselves. We need options available in the judicial system that treat each case appropriately. There needs to be diversion programs which result in dismissals that can be fully expunged. There needs to be different levels of probation from unsupervised, to deferred to long term probations with treatment. Not every social drinker who made a mistake is a future killer on the road.

It should be a given that where the police made an unconstitutional stop without probable cause, that case will be thrown out. It should go without hesitation where there is a reasonable doubt about the case, regardless of purported alcohol level, the law will be followed and a Not Guilty returned. We don’t live in a true democracy when people fear following the law due to political hype. If MADD was truly a charitable organization it would promote following all laws, not just seeking convictions. MADD has no business has no business supporting campaigns like: “Buzzed Driving is Drunk Driving” and “Drink. Drive. Go to Jail.” when this is not the law. A society ruled by passion rather than laws finds itself ruled by lawlessness.

I think often about my few clients who took their lives. I wish I could go back and reassure them that everything will be okay. I think back to my conversations with them and my staff, my availability after hours, how everyone gets my cellphone , how my staff passes out my “compassion letter” and “challenge letter” which emphasizes hope. What I keep coming back to is the need for the system to change. Good people should not feel desperate over a DWI in a country with the best Constitution in the world. It is time we start placing the law, wisdom, and prudence above politics and furied passion. MADD’s victims are not the only victims. It is time we stop creating more unnecessary ones.

Thursday, September 24, 2015

Praising a Judge that Does it Right: David Rippel

Making the World a Better Place

Judge David Rippel
Collin County Court at Law no. 4
As a people’s attorney (defense lawyer standing up for the citizen against the government in the defense of one’s constitutional rights) for 20 years, the wisdom I have gained in what makes the world a better place is truly invaluable. Here are a few nuggets and observations.

A court focused on their statistics (how many trials they have a year, how old their oldest cases are, the number of dispositions), is not one that is attentive to the needs of the citizen accused or society as a whole. You can’t force justice. Most of the time, it is like baking a cake. For all the parts to come together perfectly- it takes time. Courts that harangue defense lawyers by not allowing them some say in scheduling, do this to everyone’s (including theirs) detriment. This is a court concerned about bragging rights to their fellow colleagues. The fact is- hardly anyone knows the judges they are voting for, much less their court statistics. I applaud Dallas County courts for being efficient by not requiring citizens accused to show up to every court date when a lawyer can do it. Many Tarrant County courts (particularly felony courts) are not respectful of the citizen accused’s rights or time when they require a mandatory appearance for every court date which could be handled by the attorney. Judges and court staff need to remember rule number one: don’t treat someone like a criminal before they are convicted.  

The number one thing I observe wrong with the jury system is jurors not actually following the law. Jurors need to stop disassociating themselves from the case. The whole point of the jury system is to keep it real for the citizens. When jurors ignore reasonable doubt, issue guilty verdicts because they think they are suppose to, they render  the system meaningless. A trial is not a rubber stamp process, it is a due process evidential hearing. Follow the law, reasonable doubt means NOT GUILTY. Listen and respect the evidence and law as if your own child were on trial. I walk away from many a guilty verdict knowing that the jury would not convict based on the law and the same evidence had it been their loved one on trial. Unfortunately the last 20 years has been quite the age of hypocrisy. Most trials have serious factual dispute issues. We would not have jury trials if the police were always right, prosecutors always honest and reasonable, and judges beyond reproach. Not to mention, most cases are resolved by plea bargain so a trial is the first indicator of  serious issues at play that merit serious attention. When jurors don’t follow the law, they should know their verdict isn’t fooling anyone. They should not hope too hard if they should ever become accused, as repercussions breed a societal mentality. The general consensus of the last 20 years has been “tough on crime.”  It has bred the overcrowded jails, millions of broken homes, and billions in federal poverty subsidies. When a justice system is concerned chiefly with “the stick” approach (retributive “eye for an eye” mentality), solutions and improvements lag behind retarding society from progress. Love, compassion, mercy and understanding is a far more effective answer and approach in reducing crime, and the  civilized one.

Today I handled a few pleas in Collin County’s Court at Law no. 4. My repeated pleasant experiences with Judge David Rippel merits mention. The judge reminds me of what works in bettering society. Some may call his sentences given to my clients slaps on the wrist, but this is misdemeanor court where for many (a wise judge once told me), people self correct. Not only did he treat me along with  all the other defense lawyers with the utmost respect (defense lawyers are too often treated like redheaded stepchildren receiving the brunt of a court’s venom and frustration), he treated my  client with dignity, compassion and humanity. He even reached out to my client and asked caring questions (no, he did not preach or get on a soapbox about drinking).  His judgments were the kind that produce good effects.  Much akin to child rearing, the greater the love and positivity- the better the results. Inevitably, I have seen strict parents have the worst results. Life is about trust, respect, and encouragement. Who doesn’t make a mistake? The secret for those in power is not pleasuring in the negative (very indicative of low self esteem) or control, but gaining one’s happiness by encouraging and helping others. The justice system works when those caught in it want to turn it around for good by being good themselves. You just don’t do that when you fail to recognize basic humanity in the process. I would love to see  all the courts more full of positive, forgiving, hopeful and compassionate people (judges, their staff , law enforcement and prosecution). It’s time to trend positive and reject what has clearly not worked in this new age of record number prisons. We have ailed as a society when cops feel like they have to arrest every violator they see. There was a time when a cop would warn a DWI to call a ride and not do that again and they wouldn’t. We live in an age where people parked in parking lots intoxicated (because they don’t want to endanger others by driving) are arrested and convicted.  

Judge David Rippel, you change the world for the better. You focus on hope and the positive. You are a beacon and with heroes like you, others will follow. One day, cops will feel free again to let people who made mistakes call for a ride and they will be thanking people who pull over in parking lots to do the right thing. Good always wins over evil and society will be better for it.

Sunday, September 20, 2015

False "Science": DWI Hypocrisy

Where do I begin? Judges, jurors, district attorneys, cops, MADD? Let's start where it belongs: the National Highway Safety Administration (NHTSA). Back in 1977, the government gave NHTSA a grant to create some roadside tests for DWI arrests. Dr. Marcelline Burns, who holds a Ph.D in psychology was given carte blanche authority on this project. She came up with the field tests we know today. Her research was so bad (flunking on both the validity and reliability scales researchers measure tests against), that she reattempted her same research in 1981 with the same scientifically unacceptable results. This time she refused to release the validity data. Same story-  when the feds lowered the legal limit from .10 to .08 she conducted three "studies" (San Diego, Colorado, and Florida) in an attempt to justify her tests to the lower legal limit. It was such a massive failure she refused to release the validity or reliability data. Federal judge Grimm in an exhaustive review of her data and current scientific peer review research held in U.S. v. Horn, 185 F. Supp. 2d 530 (D. Maryland 2002),  that what law enforcement calls as the "standardized" field sobriety tests are unsuitable for use. Yet, law enforcement all across the country continue to use these substandard tests and imprison people on this basis. Throughout the years, although the tests have not changed (that is why they call them "standardized") NHTSA has removed critical limiting language. For example, the portion that warns that the "validity of the tests may be compromised" if the tests are not given in a standardized manner has been removed. In a brazen move, they have even now inserted a provision that these tests are not affected by varying environmental conditions. It does not take a Ph.D in psychology to know that ice, wind gales and wet, slippery surfaces will affect the tests despite their catchall disclaimer.

I am ashamed we have a federal agency that is so dishonest. I am ashamed that law enforcement does not reject research and tests that do not meet basic mathematical and scientific peer review standards. The fact we allow our fellow citizens to be arrested, convicted and have their lives ruined on this is unacceptable.  This is reality. This is truth and this is wrong.

* I have a paper and presentation both published and presented nationally on this subject. Feel free to request a copy.

Monday, July 20, 2015

Missouri Hospitality: Great Lawyers

St. Augustine said, “The world is a book and those who do not travel read only one page.” The same goes for law. This past week I travelled to Missouri to speak at their annual DWI conference. It was held at the Tan Tar A Resort in Osage Beach, Missouri. On top of work, I spent weeks in advance preparing my talk entitled “DWI Defense- Texas Style.” Little did I know, I would be the one be learning. The Missouri lawyers were so hospitable even providing me with two of their kind lawyers personally taking time out of their schedule to provide me with rides to and from the airport (a two hour drive!) Their magnanimity was sweeping. If I wasn’t in my room fine tuning the speech, it was only to sleep and shower. They graciously hosted me to dinners, happy hours, late night parties. They even invited me to swim (they have a slide at their big pool). Travis Noble, one of the state’s most respected DWI lawyers approached me with a big bag of cigars informing me he knew of my taste for repose (had never met him before).  I got to enjoy the inspiriting company of one of Missouri’s most well respected Supreme Court Justices as well as a top appellate judge over smiles and cocktails. They regaled me with scintillating  stories and quick-witted humor. The congeniality in the “show me” state was exemplary and warmed my heart.
Amidst such hospitality, I was able to learn about Missouri law. What gems of justice they possess ! If a person has not been convicted in ten years, they can apply for an expunction that will wipe their previous conviction clean.  They have “SIS” which is a probation that applies to DWIs in which no conviction results. I met Denise Carter, a practicing Missouri lawyer who is also licensed to practice law as an advanced solicitor advocate in Great Britain. She explained to me how in Great Britain the police are not allowed to give opinions. They can just state facts. Their Not Guilty verdicts are viewed and argued differently. An acquittal in Great Britain is when they avoid an “unsafe conviction.”  Learning from these differing perspectives expanded my creative pools. This is the pinpointed type of progressive logic needed to combat the illogical “tough on crime” cultural milieu expected in Texas courtrooms. Particularly impressionable on judges and jurors is the concern for a safe community, but true democracy cannot be attained unless one is just as diligent in avoiding “unsafe convictions.” It is always an honor for me to be invited to speak to other lawyers; however, I have learned that unless you spend the time to meet, learn about and truly care for the people, it is a shallow venture. 
So thank you Missouri for your open hearts, time and red carpet hosting right down to the parting succulent breakfast buffet in the company of the sweet moderator and DWI lawyer Denise Childress and young public defender Judson Wall. I have to say that the dinner with O.J. Simpson lawyer F. Lee Bailey was an added bonus enjoyed inimitably, much less in the congenial atmosphere of one of Missouri’s top DWI officers. The camaraderie shared amongst all the players in the criminal justice system regardless of hats worn was uplifting. So to St. Augustine I say, “Page by page study with fervor, the most interesting chapters are sometimes better than the whole book.” Missouri, you are one hell of a chapter.

Thursday, May 21, 2015

Private Lawyer Versus a Public Defender

THE law entitles a citizen accused to a public defender if they are indigent. Indigent would be defined as receiving government assistance for subsistence (unemployment, food stamps, and public housing). The courts require proof of this and to receive a public defender without financially qualifying is a theft offense, which is a crime of moral turpitude and serious. Most people think that a public defender is free to them. It is not. Although the taxpayers pay for this legal service (some counties have a public defender’s office- others use a wheel court appointment system), it is not free to the citizen accused. The law allows the court to order the defendant to pay back the services (at a much discounted rate) back as a condition of the plea or sentence. If it is a dismissal, the judge can order these fees paid back (proof) before the dismissal is signed. The court appointment system does not amount to getting a “free lawyer.”

People in prison make the distinction of “free world” lawyers versus court appointed lawyers. If you ask anyone in prison to share the horror stories of public defenders, undoubtedly you will hear stories of how the public defender “works with the system” (and not for you). Although this is not true, the perception remains. Do judges prefer to use court appointed lawyers and public defenders that plead cases to lessen their dockets? Although this is not always true, once again the perception remains. So what is the difference between a court appointed lawyer and one that is privately retained?

The fact is most public defenders are not specialized in one particular aspect of criminal law (DWI, for example). A public defender’s workload is generally heavy and it is a fact that they make less per case than a privately retained one. Does this translate into getting lesser service or results? Not necessarily. But training, resources, and specialization are very important considerations to factor into choosing representation.

The Coffey Firm associates and I purposely do not take court appointments. We do not feel that it is fair to unduly burden ourselves with our resources when we have retained clients that are paying for our time, attention and reputation. In addition, we provide physical facilities and ample staff to accommodate our clients and their needs during normal working hours. Being available for our clients is part of the fee they pay us for, versus getting paid a court appearance, which is typical for a court appointed lawyer. Court appointed lawyers must fight to get paid for non-court time and often are not compensated fairly for such. This is not a problem with privately retained lawyers. Court appointed lawyers also do not have the resources available for top continued legal education (for example, expensive specialized seminars). Often it is this difference in training which results in drastically different results given the same set of facts.

Much like in the field of medicine or taking your car for repairs at a shop that specializes in that brand of car or car repair, court appointed lawyers as a general rule do not hold the level of knowledge or specialization in a particular field which can make all the difference in a case result. It is vital that our courts continue to appoint lawyers to the indigent who cannot afford specialized retained counsel; however, it is just as important for the public to understand the distinct disadvantages of such.

Knowledge is power. Lawyers are not “one size fits all.” Court appointed lawyers are critical in democracy to uphold the rights and protections of those who cannot afford to defend themselves, but this does guarantee they will get the best representation or even have a say in who is appointed (courts determine this). My personal favorite quote on hiring lawyers is by Red Adair, “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.”

Wednesday, April 01, 2015

College Letter to My Son Spencer Crawford

Yesterday the Ivy League schools announced their acceptances. Tens of thousands of students like my son anxiously awaited by their computers at the magic hour of 4 pm east coast time to log into their portals. I have dreamt my whole life of this moment.   I have worked hard, survived two divorces raising four kids, built a specialty law firm from the ground up expanding to two offices in two cities and three counties, spent countless of hours giving back to my industry and justice by unpaid volunteer work speaking and educating others across the country in my field, all while trying to balance being the best possible mom I could be. We all want the best for our kids. We all think that we are responsible for them, and then one day we wake up and realize we are wrong. We are privileged guests in witnessing the amazing life they create.

Spencer grew up in the midst of challenges. He has no memory of his father ever living with him as we were divorced when he was two. He embraced a stepfather, who after ten years, left in a text message never to return. As the youngest of three brothers, he learned to be tough. He had to be, as his oldest brother was an offensive lineman and currently a two time world champion UT quidditch player. He grew up nurturing a younger sister, watching over her like a protective brother would, whose father had left. He learned to be resourceful, as half the week was spent with his grandmother watching over him due to my work and living in two cities. He never cowered as his older brothers always attracted the spotlight due to their overriding achievements. Kiki, the oldest, was the high school drum major after playing football his freshman year and the valedictorian. Sparky, his middle brother, was the star varsity tennis player and the salutatorian. He is reminded of these facts every day of his high school career as he walks to class past the "Wall of Honor" with pictures of valedictorians and salutatorians since the schools' inception in the 1950s, to include mine as the salutatorian in 1987. No small feat for a large public high school of west Fort Worth with a present graduating class of near 400.  Of worthy mention, out of all my children, I have never seen him lose his temper once. Not even when Sparky broke his prized ping pong racket that was made  by a German ping pong champion. He curtly announced, "I'm going to spend the night at Coop's house" and returned the next day. This young boy grew up to be a champion, not only of character, but in every way.

His senior class voted him the highest honor, "Mr. Brewer High School". He was also voted Homecoming King. These past 4 years he has served in the student council. This year he was voted both Student Council and National Honor Society President. He was the JV football quarterback, and played varsity tennis (placing in several tournaments), as well as varsity basketball.  The Davey O' Brien Foundation honored him as one of the top 5 student/athletes in all of north Texas awarding him a $2500 finalist scholarship. For the White Settlement Independent School District (WSISD) kindness week, where each school selected its best representative of kindness and charity towards others, he was chosen
to represent the high school and was honored on the football field in a balloon releasing ceremony. True to his perfect 800 math SAT score, he has won several area math tournaments (his picture in the local Bomber News). On standardized testing, he is one point away from perfect on the ACT and superscored (best of all his scores) 30 points from perfect on his combined reading and math  SAT.

It's not just his outer accomplishments, which reads like a Bill Clinton (an idol of his)  high school resume, it is his character. Despite heavy courseloads of AP classes, he spends his precious spare time attending games and functions he is not a part of  like soccer, volleyball and baseball, to support the teams. But it's not just the traditional. Having a passion for basketball and being concerned with a public high school's limited budget, he envisioned a new basketball college-style locker room and made it happen. He raised over $5k alone, and arranged for further fundraisers and the coordination of professionals and suppliers to make it happen. Today, it exists as the finest high school basketball locker room in all of the metroplex. Growing up spending his summers at Camp Stewart for Boys, he spent 2 summers as an LT (counselor in training) and last summer gave back as a full fledged counselor.

As a mother, it is the stories of him giving up his special seats at a Dallas Mavericks game to someone who could not otherwise attend at a school function  that warm my heart. He is so open hearted that when this year's German foreign exchange student needed a home to live in because the host family did not work out, he volunteered ours and has been spending his senior year being a great host brother.

So this brings me to yesterday. He and I toured the Harvard campus twice. We also made a special visit to Stanford. In addition, we made special trips to New York City (Columbia) and Philadelphia (Penn). He cherished these experiences and the chance to broaden his outlook. Despite a recent Huffington Post article referring to the trend of ivy league schools focusing on students specialized in one area (a trapeze artist example was given) and the overwhelming advantage of being a female or  minority (40% of most ivy league schools' student body), we still held out hope that a Caucasian, well rounded leader who  met and exceeded all the academic thresholds still had a shot. Stanford and Harvard declined. Penn and Columbia waitlisted him. University of Texas accepted him months ago (the new Harvard of the South, only accepting the top 7%).

I was crushed when I saw his fingers on the mouse as he breathlessly awaited his last school portal: Columbia. With everyone checking at once from a pool of over thirty four thousand students, the server was overwhelmed. A screen flashed momentarily (in which he thought he read acceptance by mistake) only to have the wait list message appear.  I had prepared for this moment. No one school or a slew of ivy leagues was going to crush his spirit.  I told him there would be a surprise. I had arranged at 4:30 (once he got his results) for him to receive a flight lesson. We littered our yard with signs like "The Sky is the Limit"and drove him unknowingly to Meacham field. He was all smiles. The skies gave him a taste and reminder of always reaching high and that anything is possible.

                                       (Willy, our German exchange student and Spencer)

Spencer, this is my letter to you. I can't possibly be more proud of you.  There is not anything more you could have possibly done to increase your odds. You are an amazing leader, and much more importantly a fine young man of the most noble character.  No school, no one person, event or act can control your fate. These ivy league schools have a history and tradition that makes our country proud. I thank them with much respect for their consideration of you. As our country ages; however, we are proving by the numbers, that the highest levels of success are being obtained outside the ivy leagues. Out of the top Fortune 500 company CEOs, only one came from an ivy. I have found at the courthouse, it is the scrappers, much like in any business, that are making the most lasting impressions and contributions to society regardless of where they went to school. Embarassingly as a sidenote, it was Harvard's President Larry Summers who only a few years ago, declared that women and girls were not as good at math and science. The number of Rhodes Scholars from other (non ivy) universities is growing (28 alone from UT) and taking command.

Spencer, you already possess all the attributes that matter. Whatever school gets you will be blessed. Remember when you fell down and busted your chin at the State Fair (pic below) ? Do like you always do and pick yourself right back up, flash that million dollar smile, and forge ahead. Do the best you can wherever you go. And as a sidenote, just know that  Dallas-Fort Worth loves electing Longhorns to Congress if you find that in your path.  I love you so much. Mom

Thursday, March 19, 2015

DWI Asleep & Parked in Your Car

You decide you have had too much, and you feel the right thing to do is pull over and sleep it off. Is this a DWI? According to a Tarrant County judge in a bench trial in case number 1366316, decided on February 12, 2015- yes it is. Do I respectfully disagree with the decision? Yes.

Here are the facts: my guy (Mr. "H") was asleep in his legally parked car at a QuikTrip in Keller, Texas. No one saw him drive. No one called the police on him. The QuikTrip attendant had no idea as to how long he had been there, but it had been "a while." The seat was in recline with Mr. H fast asleep. After waking him up, the police interrogation went like this:

Mr. H:    "I personally think I did the best thing."
Cop:       "What's the best thing?"
Mr. H:    "Where I'm at right now."
Cop:       "Which is what?"
Mr. H:    "Well, it damn sure ain't drinking, damn sure ain't pulling somebody over and hitting 'em head on collision, right? You're really going to take me to jail for DWI?"

In Texas, DWI stands for intoxication "while operating a motor vehicle." Funny thing is, the Texas Penal Code does not define "operate a motor vehicle"- the juries and judge get to decide. The Court of Criminal Appeals (highest Texas criminal court) has laid out the parameters of the definition in Denton v. State (911 S.W.2d 388): "The totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." There are a few cases where the appellate courts use common sense and hold the following:

Texas DPS v. Allocca (301 S.W.3d 364, Tex. App. -Austin 2009):
Asleep with the seat in recline and vehicle in park although running is not operation

Murray v. State (07-13-00356-CR, Tex. App. - Amarillo 2014):
Asleep, truck parked off the roadway although running with no evidence as to how long the driver was there is not operation

The issue of admission to the act of operating a motor vehicle is a legal one. Under corpus delecti, the law requires additional evidence beyond the defendant's admission. This is a basic safeguard in our law. This prevents a conviction based on accusation alone or a confession. The premise is to prevent a false conviction based on a false accusation, forced confession or false confession. Whether or not the admission is true is not sufficient in and of itself to provide the corpus or "all" of the evidence. There must be more. A driver, such as Mr. H, cannot legally provide all the evidence to his own conviction (here the issue of operation).

So what is the big picture? Napoleon once remarked, "In politics stupidity is not a handicap." Gaining as many DWI convictions as possible is good for campaign statistics to pander to the "tough on crime" voters and insatiable members of MADD (Mothers Against Drunk Drivers who are influential in drafting DWI legislation). It makes no logical sense to convict someone of DWI when the evidence is a parked car showing no evidence of intent for movement (e.g. flickering brake lights, vehicle in gear). Is the State of Texas so desperate for the $3-6k DWI surcharges that accompany each DWI conviction, that it is willing to convict people who are not even legally operating their vehicle? There are currently 1.3 million Texas drivers who do not have valid insurance because they are a part of the 60% who can't afford the $1.7 billion Texas DPS surcharge.
Sure, in a perfect world no one would drive while intoxicated. The argument that one should not drive while intoxicated to begin with does not negate that is responsible and logical to pull over in a safe place and sleep it off when one finds one's self intoxicated. To do otherwise, is to risk harm to one's self and others. Shame on the society which would rather argue semantics for financial and statistical gain over being concerned about others' welfare. A simple fix since the law is not defined?

Operation should be "causing a vehicle to function in the manner in which it was intended to function." Who buys a vehicle to use as a motel room? If the law is not fixed, every running RV parked at Nascar or a camping ground with alcohol involved is a possible DWI. It is time for some common sense in our court system when it comes to DWI. Long overdue.

Do you want to know who is a DWI hypocrite? Someone who wants DWI enforcement to "keep the streets safe" yet at the same time would rather have a DWI conviction opposed to actually keeping the streets safe. Society is better off and lives will be saved if people who are driving while intoxicated will pull off the road and do the right thing. The only way we can do this is not convict people who are doing the right thing in these circumstances. Shame on illogical law enforcement decisions.

Wednesday, January 28, 2015

An Open Letter

To all my past, present and future clients, and for anyone who is curious:

If you ever wanted a nutshell version of "DWI at Night, Coffey in the Morning" here you are straight from the source. I have practiced law for 19 years. This defines who I am. At the age of 12, my father encouraged me to be a lawyer after helping me write and practice a Student Council Treasurer campaign speech (I ended the speech, "Vote Me Me for You You" and won, so it's true I come by my marketing quite honestly).

In my wildest dreams, I never could have fathomed how much injustice there was in the world of criminal law, particularly DWI. As a new lawyer, I heard about the National College of DUI Defense or NCDD (celebrating its 20th anniversary this year) training held at Harvard every July. I went to it and my world was lit on fire.

It was shocking to find out how inaccurate breath testing was; how the National Highway Safety Administration skewed statistics and conducted experiments that don't meet scientific parameters in developing the standardized field sobriety tests which every year falsely convicts so many people. Also, how forensics did not include the reporting of uncertainty (just now coming to light but still not mandated for breath testing) among other glaring red flags despite people's liberties and lives at stake.

I delved into research, publishing, speaking, and became board certified all in an attempt to learn and help as many people as I could, including lawyers. The NCDD asked me 3 years ago to become Regent. This is an unpaid, serious 13 year commitment that involves a mandatory 4 seminars every year. On top of this, there are mandatory Board meetings, workshops, and other pressing time commitments. I accepted this position without flinching. I have sacrificed many family vacations (being a busy trial lawyer these commitments take up the majority of my free time I have every year), time away from my family, and important events and dates in my personal life to carry out this commitment for a full 13 year term. When I accepted, my oldest was going off to college and my youngest was in the 5th grade. Sure, it is painful missing college events and sacrificing family vacations as they age in critical years, but it is an honor to be able to effect change for the betterment of humanity. It allows me to help others positively (outside my own clients) across the country.

Since becoming a Regent, I started a forensics committee. We have plans to send a metrology expert on mathematical uncertainty to the National Forensic Commission committee hearings so that the public interest can be represented. I hope one day to see breath testing reported in uncertainty units. I am proud of all the work I am able to accomplish with and through the NCDD for the greater good of our country when it comes to fairness. We not only put on excellent educational seminars for lawyers, but we hold numerous training sessions for public defenders across the country at no cost to them. This is an important necessity as most public defenders offices have deficient budgets. I have taken it upon myself to show appreciation and inspire my fellow defense lawyer colleagues by showcasing special and accomplished members with a "Member in the Spotlight" segment sent out to all 1500+ of our membership, as well as to educate the public on what leaders DWI defense lawyers are in their communities. In addition, I take great pride in educating our members and the public on justice related issues through my blogs (both NCDD and otherwise) and social media. This influences prosecutors, judges, jurors, and voters all for the betterment of humanity as we seek justice for all.

This defines me. Not just my words, not my marketing, not my certifications or education, but what I do. Just as our fellow Americans sacrificed family and their personal lives to fight for the founding of our country and serve in important positions as Founding Fathers. I view it as an honor to give and sacrifice with my talents to keep their vision of fairness and constitutional protections alive. Whatever contributions I can give, I view it as my duty to do so and practice doing so. My four children and family understand. How can I expect them to give their best and make the world a better place if I don't sacrifice? So sacrifice I do! It is a very good word to describe me.

So the next time, you drive by my billboard or hear some crazy rumor that is normally a product of someones jealousies or inadequacies, just look at my work. I was chosen a Regent because the leadership of NCDD and its Founders saw the truth, I work hard, and sacrifice to do the right things. You can't get to my position unless you have earned it the good old fashioned way. You can't stay at my level unless you are made of the right stuff. You can't effect change unless you are a leader. Thank you NCDD for choosing me to lead and lead I shall.

Wednesday, December 31, 2014

Mimi Coffey's New Year's Eve Formula

Yes, it's that time of year- where everyone wants to party on New Year's Eve but fears a DWI. If I wasn't a DWI lawyer, I would not know what to do, so in that spirit here are my tips based on 19 years of experience. Please be advised that different states have different laws and if you are on probation, these tips don't apply as most probations condition you fully cooperate with a DWI investigation. If you are in Texas and NOT on DWI probation, take heed. First I would like to add, that the best thing is to try to avoid putting yourself in this situation. I highly advise UBER, a cab, or a designated driver. Speaking of which, if you TRULY have not consumed too much make sure you have a portable breath test device (you can buy them in the automotive section of Walmart) in your car. Blow into it if you get pulled over, show the cop. It is one of the smartest ways of avoiding being arrested. I have a fellow Regent in the NCDD who did this. No cop wants to realistically take a .04 to the station. If you do get pulled over here are the basics:


1. You don't have to answer questions. You do have to provide drivers license, registration, insurance and step out of the car when asked.  THINK HIGH SCHOOL GOVERNMENT: REMAIN SILENT. Tell the cop "I would like to decline all questions." I would recommend you wish the public servant a "Happy New Year!"

2. You don't have to do ANY tests. Yes, they may arrest you but that does not mean you are guilty. The law is PROOF beyond a REASONABLE DOUBT. You are not obligated by law to provide ANY evidence.  The field tests are not scientific and they are designed for you to fail (much published, including the HGN). Unless you can nail them, I would not advise you do them.

3. The cop chooses breath, blood or a urine test.  If you have had one 12 ounce normal beer within the hour ONLY, you are pretty safe to blow otherwise know that there are many issues with the breath test recognized by courts that may affect you (temperature, the length of blow, etc.). If you cooperate, you have a right to your own independent blood test. Remember on most holidays, if you refuse they will get a warrant for your blood. You have the right to ask if they are going to get a warrant and to be shown the warrant.With that being said, here are some additional tips with the caveat that the best thing to do is to avoid getting in the situation as there is much grief to a DWI even if you are ultimately exonerated.

Things to DO:

1. Throw away all open containers (They are illegal anyway).  If you bring alcohol to a gathering (yes, even that expensive bottle of Johnny Walker Blue) LEAVE IT there. Throw away all empty containers. Yes, those empties from last weekend will be used against you...

2.  Leave the breath mints, tongue strips, and mouthwash at home. As crazy as this seems, most DWI cops will try to say you were "attempting to mask the odor" of alcohol.

3. Take pictures of your receipts and email them to yourself. This is your private business. Throw the real receipts away. Cops often don't return them or show up the day of trial with them. If you try to explain the receipt, it won't help prevent you from getting arrested, no matter how many people were on the tab.

4. Lock your phone with a passcode. Don't tell the officer your passcode. Even though the courts have ruled cops need a warrant to go through your phone, don't tempt fate. I have had cases where pictures of text screens were a part of the police report. Keep some numbers handy in your wallet or purse written down for "in case of emergency" so you can bond out or you may find yourself in jail a long time (some cops will graciously let you use your phone, but not all).

5. Tell your friends not to text you until later the next day. If you are arrested your phone will be in police custody. Nothing like "crazy time last night" popping up as a text as you are getting booked in. You want to value your privacy.

6. Keep your mouth closed. There are cameras in the squad cars. I can't tell you how many cases are destroyed due to unwise comments made while handcuffed in the back of a squad car. Yes, you are being taped even when you are alone! Don't fall asleep. Sure, it's late but I promise you some prosecutor will say you were "passed out" due to drinking.

7. Do not bring medications with you! Cops give DWIs on medication now, even if it is prescribed and you are taking it according to proper dosages. Some prosecutors could care less about the meaning of a "therapeutic level".  When asked if you are taking medications, you have the right to politely decline all such questions. YES, YOU CAN GET A DWI EVEN WHEN YOU HAVE NOT BEEN DRINKING AND ARE JUST ON MEDS.

8. If you got pulled over for a nonexistent traffic stop, make sure to politely ask the cop why you are being pulled over and state in nice terms how you disagree (this will get you a probable cause jury charge). Sadly, many cops will turn down the volume during this stage, so make sure to ask if you are being recorded as you can file a complaint later if they pull this one on you. Destroying evidence is serious business.

9. If you do the responsible thing and pull over- make sure it is in a parking lot and turn the car OFF. Turn off all lights and TAKE THE KEYS OUT OF THE IGNITION. The best thing to do is to hop in the back seat. Some (not all, thank God) judges will find you guilty even if it is only to have the heater on. Keep a blanket in your car. The law does not define "operation" hence the issues making each case circumstantial.

10. Be friendly and nice to the police officer but leave it at that. No need to start apologizing and start giving confessions. It won't change the arrest decision I assure you.

10+. Once in a blue moon (very blue moon, call it turquoise), a cop will ask if you have someone that can get there to get you in 10 minutes. Always try to keep an arrangement of this sort handy (yes, tell grandpa to keep the ringer on the night you go out). I'm always pained to see these rare instances of not having anyone end up in my office.

Big NO NOs:

1. If you have been drinking don't deny it. It's a cop's number one pet peeve. Regardless of how sober you are, he will take you in. You might as well have called his mother stupid- denying drinking just means the fight is on.  Remember to politely decline to answer all such questions as to how much or what you have had.

2. Whatever you do, don't say "I couldn't do these tests even if I were sober!" If that phrase pops up in your mind, don't even think about doing the tests.

3. Don't mention if you know a cop or have a family member that is a cop. Juries hate name dropping and with most cops, it won't do a lick of good. Some cops live to arrest other cops. Yes, sadly this is what differentiates DWI cops from the others too often...

4. If you refuse a specimen test and they get a warrant, don't fight it after they have shown you the warrant (which you have a legal right to ask). Resisting will get you another charge.

5. Don't get in fights at bars, I promise you - you will get pulled over for a DWI as they will be looking for you.

6. Don't get rowdy in bars- same deal. See above. Bartenders don't like to call on patrons, but believe me THEY WILL and DO.

7. If you are refused service at a 24 hour restaurant or drive through- park your car and start walking. I assure you the cops are on their way. Be sure to be polite when refused service. Arrange for someone to pick you up somewhere. Take yourself off the obvious path.

8. If you have an accident, pull over and do the right thing. Running from it will get you two charges with failing to stop at the scene of an accident being a more serious charge, one involving a crime of moral turpitude.

9. If you know you are going out drinking, leave your favorite beer shirts and other such loud non judge and jury friendly attire at home.

10. Don't challenge the cop to do the field sobriety tests (yes, they only do a measly partial demonstration compared to you). They have practiced them a gazillion times, trust me. You won't get what you are looking for.

10+. Whatever you do, don't tell the cop "I'll see you in court." You have just lost your license buddy. Some of the compassionate cops knowing the DWI will kill ya, may let you slide on the license hearing out of benevolence, plus juries don't like an ass. Please know that there is a wide political spectrum of opinions and powerful lobbies when it comes to social drinking. No one wants anyone hurt or killed on the road, but unfortunately there are plenty who don't mind responsible social drinkers getting persecuted. You don't want to be on any side of it where it involves handcuffs and your life.

Have a safe and happy new year from all of us at the Coffey Firm.  Happy 2015! May it be filled with happiness, good health and good cheer!

-Mimi Coffey, Sr.

Wednesday, November 19, 2014

Jury Misconduct

The Court of Criminal Appeals (the highest court in Texas) rendered that a rushed juror who regretted his decision and cooperated with the defense in a motion for new trial is not good enough evidence to overturn a verdict. In Colyer v. State, 428 S.W. 3d, 117 (2014), the jury foreperson testified that his verdict was not a true verdict because he was rushed into judgment. He detailed that the late time of day, distance to the parking lot, approaching inclement weather, and amount of time it took for the Judge to respond to the jury’s notes, caused him to rush to a guilty verdict that he later regretted. He meticulously described how he received an emergency phone call from a doctor regarding his daughter. After this, and worried about her serious condition, he stopped deliberating. He hurriedly rushed the other jurors to judgment, agreeing with them without forming his own true opinion. This information later came to the court's attention. The defense made a proper motion for new trial. The trial judge denied it. (Why would the trial court want to reclog the docket?) The appellate court granted it based on juror misconduct, only to have it finally reversed by the Texas Court of Criminal Appeals.

The purpose of appellate courts is to right wrongs. This is clearly a miscarriage of justice. Trial stats and judicial efficiency do not justify injustice. This decision makes very clear that Texans cannot always rely on appellate courts to do the right thing. Having a new trial with a jury who is committed under oath to fairly and impartially deliberate is the law. There is no way to substantiate a forced and hurried verdict to make it legally proper, whether it ultimately turns out to be guilty or not guilty. Who will ever know in this case- without the defendant getting a new trial with a jury who renders an unbiased verdict based on the law and evidence, not “outside influences”? For the highest court to take it upon themselves to determine what is fair and just without hearing all the evidence, which is not their job, is a misappropriation of the appellate court’s role. It demonstrates that a guilty conviction and judicial expediency is prized more in the system over a citizen’s right to a fair day in court.

Clearly this was jury misconduct. People make mistakes. Honest people of courage admit them and correct the situation. Kudos to this jury foreperson. He did the right thing in honestly admitting his misconduct to ensure the defendant would get a fair, new trial. The highest criminal court in Texas is wrong. This may have just been another ’run of the mill’ DWI case to the Texas Court of Criminal Appeals, but this was this citizen’s life, reputation and denied justice. This erosion of trust and integrity in the system provides yet another reason why judges should not be elected. Texas needs to realign with states like Missouri, whose judges are peer reviewed chosen followed by retention elections. There desperately needs to be some measures which ensure qualifications of proficiency of the law, coupled with a proper judicial temperament analysis by those in the know, such as bar panels, to qualify judges for the bench.

Being a judge is one of society’s most instrumentally important jobs for democracy to flourish. When one judge (the jury foreperson) admits a mistake, it is time for the other judges to fix it. That is their job, not their choice. Lesson to all: it is a sad day in America when someone’s personal life and agenda determines another’s fate. It is an even sadder day when the courts won't do their job to fix it.

Wednesday, November 12, 2014

If You Drink Alcohol, You Should Read This- They Will Get a Warrant for Your Blood and Then.....

The Texas Department of Public Safety laboratory in Houston was responsible for thousands of botched results (some completely fraudulent) because of lab analyst Jonathan Salvador. This occurred from 2006-2012. The Texas Forensic Commission got wind of his questionable work and launched an investigation. One of the commissioners in the investigation, Dr. Nizam Peerwani concluded that the Texas Department of Public Safety lab's office "tolerated under-performance". So this was not just a problem from the analyst, but the whole lab shared culpability. Rather than properly address the problems after this scandal in order to improve testing, Texas DPS convinced our legislators to restricting test results in court only to them. Hence, Texas Code of Criminal Procedure 38.35 was enacted that restricts test results admitted to court to be limited to those of a lab with the Texas DPS certification. Laboratories like Max Courtney's was shut down immediately. Max Courtney's lab was instrumental in exposing the bad lab problems of Texas DPS. According to Dr. James Booker, an expert witness, the shoddiness and problems of Texas DPS continue unabated. It is just more difficult to see and expose because independent labs can't retest the samples. No lab seeking DPS certification wants to jeopardize it by exposing problems with Texas DPS testing.

One would think that Texas DPS would have fired Jonathan Salvador after his fraudulent work was exposed and District Attorneys across the state were dismissing his cases. They did not. More sickening, a grand jury in May of 2012 refused to indict him despite the Texas Forensic Commission's findings. He finally resigned on his own in August of 2012. What does this state for society? Sometimes there are bad juries, no two ways around it. It's a pipe dream to expect Texas DPS to monitor themselves. We are only jeopardizing and denying due process to those accused of crimes in Texas by limiting forensics to an entity with a proven bad track record. Justice requires truth. Truth requires trust. A lawyer's job is not to trust the government, but the public should have some amount of trust- trust that can't be had in our present framework. It is time for the legislature to amend this problem. There are better labs with higher standards that the people of Texas should be, as a right of law, entitled to.

Friday, October 31, 2014

Judge Chastises Jury After Verdict: Tells Them They Got It Wrong

Ohio Judge Amy Salerno is under heat now for approaching and chastising a jury after they found the defendant (name protected for expunction purposes the defendant may pursue) Not Guilty of Assault and Disorderly Conduct. She told them “99% of the time the jury is correct. Now it’s 98%. You got this wrong.” One juror, feeling berated, burst into tears and another juror requested an escort home for safety reasons as the judge’s outburst was made in the midst of the alleged victim’s agitated family and friends. The judge further went on to state she would have her chance to get the defendant regardless of the jury’s verdict because he had other cases pending in her court (which were later dismissed by the prosecutor).
Here is what is wrong with this picture:
1. The Code of Conduct for U.S. Judges states in Canon 3: A judge shall perform the duties of the office fairly, impartially and diligently. It further states under Canon 3 A (3): A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses and lawyers. The official comment states, “The duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment, prejudice, or bias.” We all have opinions. The difference is the jury’s opinion is all that matters in a court of law. Just because a judge may disagree, this does not open the floodgates of a judge’s first amendment right to free speech. The judge is acting in an official capacity and the ethical rules prohibit a judge from engaging in behavior under the cloak of a robe that disrespects a jury’s verdict in any way. The jury’s verdict is law.

2. The Code of Conduct for U.S. Judges states in Canon 3 C (1) (a): A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned including: the judge has a personal bias or prejudice concerning a part, or personal knowledge of disputed evidentiary facts concerning the proceeding. Clearly, without even hearing the evidence in the defendant’s other cases- which were eventually dismissed, she had formed an opinion of guilt. One cannot make a proper verdict without the evidence. This is law school 101 for judges.

3. The Ohio Supreme Court (whom Judge Amy Salerno answers to) has its own more specific ethical canons. In Canon 3 B (10) it states on point: A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. This is cut and dry. The appending caveat exists for judges to legally address juror misconduct issues. It certainly is not a license for judicial misconduct.

Thankfully the jurors in this case filed a complaint. The Ohio State Bar has now filed a complaint with the Ohio’s Supreme Court’s disciplinary board. Following the hearings, the Board of Commissioners on Grievances and Discipline will determine what if any punishment should occur from removal of the bench to loss of law license. This is more common than people realize and totally unacceptable. Last year it happened in Tarrant County, Texas. After a Not Guilty verdict on a DWI, visiting Judge Jerry D. Ray lashed out at jurors in a diatribe accusing them of deciding to “ignore the law and your oath” comparing the verdict to the O.J. Simpson trial. The presiding juror, an elementary school speech therapist, stated:
“It was horrible. He was horrible. I mean, we were absolutely chastised like children. Like we were total idiots.”

So how does this happen- and why? In all professions, there is a bell curve of performance. The problem is judges don’t answer to bell curves. They are in a unique position, in that their success isn’t measured by the strength of their abilities. This is further complicated by their professional isolation. Once in office, judges are independent. There are no checks or balances. They are rarely disciplined or admonished by state bars or state supreme courts for unethical or inappropriate behavior. As a matter of fact, in Texas the majority of the judicial complaint process is secret. Once they serve a term, they are rarely challenged at the polls due to an incumbent’s edge. A case in point, Judge Amy Salerno was elected in 2005. If she can’t control her temper and impropriety after ten years, the public has no reason to expect her to now or in the future.

As for isolation, you don’t have to learn how to play with the schoolchildren on the playground, or even understand schoolchildren, when you are the playground. It’s called the “God” complex. Lawyers are the first to tell you that a disproportionate amount of Federal judges (appointed for life) suffer this. One of the reasons why it is so rampant is because of how legally insurmountable it has become to have a federal judge impeached and thereby removed. As for accountability, rarely are judges ever reversed on appeal in today’s “tough on crime” world, where so many decisions are politically based. As for performance, judges don’t have to answer to a bell curve. They are the bell curve. For lawyers, those who are good do well. Those who are not, don’t and are forced to contend with the repercussions. Once judges get elected or appointed, they have no measuring scale because there is no need. Judges like Ohio Judge Amy Salerno don’t fear repercussions. They have been groomed to believe they are always right.

Does this apply to everyone? No. Recently, six judges retired from my county serving an aggregate 120+ years. A retirement reception was given by the defense bar in which each judge had the opportunity to make remarks. The old phrase of "we are what we think" gives a truthful window to the soul. What I discovered was the best two judges said basically the same thing. They emphasized kindness and doing things for the right reasons. Unlike Judge Salerno, they would never be caught chastising a jury. Moreover, those were the two (of the lot) that had the best work ethic. The only judge to receive a standing ovation (not one but two) remarked he agreed to serve as a temporary judge when the position came open and the local bar took a vote. That temporary position turned into 39 years and he serves the distinction as Texas’ longest tenured judge, a most beloved one.

These tidbits are insightful in that it makes sense to let lawyers (or those in the know as opposed to a general electorate) have some say in who serves on the bench. Ohio Judge Amy Salerno’s behavior cannot be categorized as a rookie mistake, yet she was reelected this fall despite the Ohio’s Supreme Court’s pending disciplinary case. Our administrative and appellate judges must do better in keeping the judges accountable, lest things spiral out of control like they did for Judge Amy Salerno and Judge Jerry D. Ray. The unacceptable actions of these judges only weaken the public’s confidence in our judicial system. The Judge Amy Salerno YouTube video (above) has her chastising citizens accused before they are convicted. The best judges in my experience are the ones who focus on good just as much as they try to right wrongs. They know people make mistakes. They know encouragement breeds change, hope and positivity. They know when discipline is necessary: “Just a spoonful of sugar, makes the medicine go down... in the most delightful way. “