Last week, Galveston County Judge Kerry Neves issued an order saying that he would not approve probation, plea bargains, or deferred adjudication in any case that involves threatening or putting a police officer in harm’s way.
That list includes not just assault on a public servant and resisting arrest, but also evading arrest. Also included, in Neves’s own words, is “any other offense in which a member of Law Enforcement is threatened or placed in danger.”
Should the defendant, the defense attorney, and the prosecutor all sign off on a plea bargain agreement, Judge Neves might consider it, so long as the the defendant pens and reads in open court “a sincere written statement of apology to the officer or officers involved,” but only if the victim—meaning the police officer—should also agree to the plea bargain. According to Neves, prior criminal history would be a crucial factor in the approval of an agreement.
In essence, Judge Neves has publicly announced that some victims get to have more of a say in the range of punishments on the table for the alleged perpetrators than the rest of us.
“I think he is just trying to take advantage of the feeling right now in support of police,” says legendary Houston defense attorney Dick DeGuerin. “Certainly what he was trying to do [with that Facebook announcement] was get it out to as many police and police supporters as possible. It’s a political thing. He has no authority whatsoever to rewrite the statute.”
Houston defense attorney and legal analyst Mark Bennett echoed DeGuerin’s concern that this was a political move. “It’s unusual and arguably unethical,” Bennett says. “Yes, judges are politicians, but they are not supposed to allow their political pandering to affect their treatment of cases.”
After Judge Neves took his public stand on Facebook, many defense attorneys argued that the judge should recuse himself from presiding over such cases. As a judge, proclaiming that you are willing to publicly declare your willingness to eliminate a range of punishment will certainly provoke a reaction from the defense bar.
“I am not sure if I could give a legal opinion on whether he could be recused, but I think that lawyers ought to certainly be trying that,” Bennett says. “ And in the interest of avoiding the appearance of impropriety, yes, he ought to recuse himself. Now will another judge recuse him? I don’t know.”
DeGuerin had even stronger words for the judge: “By what he has said, he is disqualified from sitting on cases such as [these]. He’s already got his opinion regardless of what the facts are, and so anyone who has such a case before him should bring a motion to recuse him.”
DeGuerin wonders if the the state’s governing board for judges, the State Commission on Judicial Conduct, should get involved. “Whether they will step in and do something, I don’t know,” he says. “That depends on whether they get a complaint. I do know that a couple of the lawyer organizations are considering filing such a complaint.”
Years back, DeGuerin recalls, he once had a judge recused after that jurist had publicly declared that any defendant in his court who was charged with a crime while on deferred adjudication would be going to jail. “Doesn’t make any difference if you are guilty or not, you are going to jail, period. So I recused him. He couldn’t be fair. He couldn’t consider the full range of punishments.”
Absent of cell phone footage, these kind of cases tend to be shadowy of fact and long on accusation. DeGuerin worries that the order would further complicate trials involving police and citizens.
“What this would do, particularly if there was a change in the law to enforce something like this, is, it would give the police far too much discretion in bringing charges,” adds DeGuerin. “And they do it all the time. And it would basically say, in any such cases, the cops are always right. But that’s not true.”