The BAT Van Contempt Hearing, Interpreted


I didn’t go to the 185th for the hearing yesterday, but Murray Newman, Paul Kennedy, and Mr. Kelly Case did (Kelly didn’t blog about the proceedings, but I link to his blog so that you can encourage him to write more).

Bottom line: Judge Brown announced that she was recusing herself, based on the motion to recuse filed by Randy Schaffer, Steve Morris’s lawyer. Delay of game, as Murray predicted.

But Schaffer didn’t file a motion to recuse; he filed a Reply and Motion to Set Aside the Show Cause Order. I have a copy of it, but I’m not sure I may share it online. When I see it on the District Clerk’s website, I’ll grab it and share it.

The portion of the motion that suggested that Judge Brown remove herself from the case is this:

THE CONFLICT OF INTEREST
Judge Brown instructed Katherine Chagaris, a court reporter employed by the HCDAO, to enter the grand jury room and record the proceedings on October 18, 2011. As a result, Judge Brown is a witness at any show cause hearing. Furthermore, she apparently considers herself to be the complaining witness based on her statement in the Show Cause Order that Morris “blatantly disobey[ed]” her previous orders and the grand jury secrecy provisions of Chapter 20 of the Code of Criminal Procedure. She also apparently intends to prosecute this matter. She cannot properly be a witness (much less the complaining witness), prosecutor, and judge in the same proceeding. Accordingly, if she does not set aside the Show Cause Order, she must request that the presiding judge of the administrative judicial region assign another judge to preside at any show cause hearing.

(Wait, you say, just because he didn’t call it a motion to recuse doesn’t mean it isn’t one. True, but a motion to recuse must be verified (rule)—sworn to—and Schaffer’s motion was not; Schaffer knows what he is doing, and he knew he wasn’t filing a motion to recuse. Brad Beers filed a motion to recuse on behalf of the court reporters (pdf), but then withdrew it.)

One of Rule 18b‘s grounds for recusal is that the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding.” Schaffer makes a fair point that Judge Brown is a witness, but the judge in a contempt proceeding will always be a witness to something. Schaffer has not shown that Judge Brown has personal knowledge of any disputed evidentiary facts. The judge in a contempt proceeding will always be a witness to something (the judge signed an order, the order was served on the contemnor), but usually this something is not disputed.

Another of Rule 18b’s grounds for recusal is that the judge’s “impartiality might reasonably be ques­tioned.” This one strikes a little closer to home—the special prosecutors reportedly stood down during the proceedings yesterday, and the judge was pressing the matter herself. That might be reason reasonably to question the judge’s impartiality. But any contempt proceeding involves an affront to the authority of the court. That’s why they call it “contempt.” If an offended court is grounds for recusal in a contempt proceeding, then recusal is appropriate in every contempt proceeding.

The grounds for recusal in Schaffer’s non-motion-to-recuse would not, by themselves, be the strongest stuff. The better argument is that a contempt prosecution will, for several reasons, simply not stand (he’s right, of course; Beers also filed motions to quash (pdf)):

The Show Cause Order fails to allege how Morris violated the Orders of October 18 and October 26 as well as Chapter 20 of the Code of Criminal Procedure.
The Show Cause Order fails to allege that Morris entered the grand jury room in violation of the Order of October 18.
The Show Cause Order fails to allege that Morris participated in the grand jury’s investigation of possible criminal conduct by members of the HCDAO in violation of the Order of October 26.
The Show Cause Order fails to allege that Morris disclosed anything that transpired before the grand jury or received such information and disclosed it to another for an improper purpose in violation of article 20.02(b) and (c) of the Code of Criminal Procedure.

Schaffer also sets up defenses to contempt:

LEGAL DEFENSES
Morris cannot properly be held in contempt for violating the Orders of October 18 and October 26 that do not name him, were not served on him, and do not prohibit him from receiving or possessing transcripts of grand jury testimony— especially transcripts prepared before the Order of October 26 was entered.
Morris cannot properly be held in contempt for violating article 20.02(b) and (c) of the Code of Criminal Procedure based on the alleged receipt or possession of transcripts of grand jury testimony that were not thereafter disclosed to anyone.
Morris cannot properly be held in contempt for violating the Orders or the statute under principles of entrapment and estoppel. Judge Brown instructed Chagaris, an HCDAO court reporter, to enter the grand jury room and record the proceedings on October 18. Thereafter, the grand jury ordered Javier Leal, an HCDAO court reporter, to enter the grand jury room and record the proceedings. Both Judge Brown and the grand jury knew that these court reporters were HCDAO employees and that they would possess the notes of the proceedings. Morris cannot properly be held in contempt for receiving or possessing grand jury testimony that Judge Brown and the grand jury instructed HCDAO court reporters to record. If the State’s possession of this grand jury testimony violates either or both of the Orders or article 20.02(b) or (c) of the Code of Criminal Procedure, then Judge Brown and the grand jury induced that violation by instructing HCDAO court reporters to enter the grand jury room and record the proceedings. Principles of entrapment and estoppel prohibit the Court from holding Morris in contempt for possessing grand jury testimony that HCDAO employees were instructed to record.

(Note: one space between sentences.)

The italicized portion (my italics) is interesting: Judge Brown ordered HCDAO employees to record the proceedings, and can’t now hold HCDAO employees in contempt for having those transcripts. It hadn’t occurred to me that the court reporters were HCDAO employees, but this increases what I would call the chickenshit factor of the contempt prosecution of the secretaries: if you send HCDAO employees in to do what they’ve always done—record grand-jury testimony—and you don’t tell them not to share the testimony with who they’ve always shared it with—grand-jury prosecutors—it’s hardly fair to blame them for not reading your mind.

That’s the whole problem with this contempt prosecution: Judge Brown got an idea in her head of what the obligations of the court reporters and prosecutors were, but she didn’t share it with the court reporters or prosecutors. Then, when the court reporters and prosecutors didn’t live up to her standards, she tried to punish them with contempt.

Where the court seeks to punish either by fine, arrest, or imprisonment for the disobedience of an order or command, such order or command must carry with it no uncertainty, and must not be susceptible of different meanings or constructions, but must be in the form of a command, and, when tested by itself, must speak definitely the meaning and purpose of the court in ordering.

Ex parte Duncan, 62 S.W. 758 (Tex. Crim. App. 1901).

The prosecutors’ conduct in this case is simply not punishable as contempt. They didn’t violate Chapter 20 of the Texas Code of Criminal Procedure, and they didn’t violate any definite order of the court. A contempt finding will not survive appellate review on habeas. In other words, if a judge holds them in contempt, that ruling will be reversed by a higher court.

Schaffer didn’t file a motion to recuse; Beers withdrew his motion to recuse; Bill Hawkins, who represents Carl Hobbs, wanted to go forward with the hearing. Judge Brown was not obligated to recuse herself, nor even to refer the case to the administrative judge for a hearing (the usual procedure in a recusal case). So why did Judge Brown recuse herself?

The charitable explanation is that she did so to avoid even the appearance of impropriety (or the appearance of any more impropriety)—a laudable thing for a judge to do.

A less-charitable explanation is that she didn’t want to have to deal with Schaffer, Beers, and Hawkins: “like the playground bully kicking sand in the little kids’ faces and then the little kids go home and get their big brothers… and all of a sudden the playground bully is like ‘Whoa, whoa, whoa, no, no, I just want to be your friend.” (Schaffer to KTRK.)

My explanation is that the judge realized that contempt did not lie, and instead of dropping the matter right then she punted it to another judge who can drop it off-docket and away from the cameras without any loss of face. Schaffer, by including reasons that the judge shouldn’t hear the case—even grounds that would not support recusal—to his motion explaining why the contempt prosecution would fail, gave Judge Brown an out (it is a joy to watch a master at work), and Judge Brown, realizing that she had jumped the gun with her show-cause order, took it.


One response to “The BAT Van Contempt Hearing, Interpreted”

  1. Mark-
    Good analysis. I clerked for Randy in 1982. I have known him almost 30 years. As a general rule it’s pretty safe to say Randy is the smartest guy in the room.

    Robb

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