Feb. 13, 2005, 12:53AM


Experts question judge's ethics

They say a line was crossed when she intervened in an inmate's appeal
By STEVE MCVICKER
Houston Chronicle

A Harris County state district judge may have violated the Texas Code of Judicial Conduct last year when she took the extraordinary action of interjecting herself into the appeal of an inmate whom she had sent to death row while she was a prosecutor, according to legal ethics experts.


"It raises a question about the judge's ability to be impartial and unbiased," said Seana Willing, executive director of the State Commission on Judicial Conduct, speaking hypothetically. "These are things we expect, and (that) are required, of our judicial officers, especially when they have criminal jurisdictions."


Judge Jan Krocker, however, rejects the notion that she crossed any ethical boundaries.


As a prosecutor for the Harris County District Attorney's Office, Krocker won a death sentence in 1987 against Martin Draughon for the fatal shooting of a man who was attempting to capture him after the robbery of a Houston fast-food restaurant.


Draughon's appeal, in which his attorney challenged the death sentence on several points, came before U.S. District Judge Lee Rosenthal last year.


Among other points, the lawyer argued that Draughon did not intentionally shoot the victim, as Krocker had claimed at trial. Instead, the defense said, Draughon had fired a shot in the air to frighten his pursuer, but the bullet ricocheted and struck the victim.


The defense also claimed Krocker did not inform Draughon's trial attorneys about witness statements that might have bolstered his defense.



Getting personal
In Texas, the Attorney General's Office oversees the defense of state court convictions when they are appealed on the federal level. However, after reviewing the attorney general's work in the Draughon case, Krocker � who became a state district criminal court judge in 1995 � got personally involved.



In February 2004, Krocker inserted herself into the legal fray by filing a motion to intervene. Specifically, she sought permission to testify before the court and to present her own witnesses in support of her original prosecution of Draughon.


"I had important information, which the legal ethics code required me to reveal," Krocker said in a written reply to the Houston Chronicle.


In her motion to Judge Rosenthal, she wrote: "Jan Krocker is merely attempting to get this case back on track with judicial economy."


However, not all of Krocker's reasons for wanting to intervene pertained strictly to a desire to make sure a convicted killer was put to death as planned. She also had a personal reason.


In a motion filed in Rosenthal's court, Krocker stated that she "could suffer loss of her law license and civil liability" if Rosenthal were to agree with Draughon's contention that Krocker had withheld information from the defense.


The Attorney General's Office responded by calling Krocker's request to intervene "improper and unnecessary," adding that her testimony would amount to "second-guessing and hindsight roundly rejected" by the federal courts.


Draughon's attorneys also opposed Krocker's intervention, saying it forced Draughon to deal with two prosecution teams � Krocker and the Attorney General's Office.



A list of witnesses
Two weeks after Krocker's request, Rosenthal granted it in part. Although she refused to let Krocker make her case in court, she allowed her to file written statements from herself and several witnesses she had contacted.



In September, Rosenthal ruled that Draughon should get a new trial. She based her decision on the fact that the jury did not hear testimony that the bullet that killed the man who was chasing Draughon had ricocheted. However, Rosenthal rejected the allegation that Krocker had withheld evidence from the defense. The case is now before the 5th U.S. Circuit Court of Appeals.


Among the witnesses from whom Krocker obtained statements were people who could find themselves testifying in her court in the future. They included the former Houston Police Department firearms examiner who did the ballistics work in the Draughon case, a current HPD firearms examiner, an employee of the Harris County District Clerk's Office, a lieutenant from the Sheriff's Office, an HPD captain and a forensic analyst from the county Medical Examiner's Office.



Code of conduct
According to Lillian B. Hardwick, a lawyer and author of a book on judicial ethics, that is one of the areas where Krocker runs afoul of the judicial conduct code. She points specifically to Canon 4 of the code.



"A judge shall conduct all of the judge's extrajudicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge or interfere with the proper performance of judicial duties," reads the code.


It also states that "a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others ... "


"Any time a judge goes out of judicial bounds to make something happen, it is as if that judge has taken on the view (of one side of the issue)," Hardwick said. "And a judge is supposed to be neutral."


The State Commission on Judicial Conduct does not comment on ongoing investigations or whether an ethics complaint has even been lodged. However, Executive Director Willing says a situation such as Krocker's hypothetically puts a criminal court judge in a position of being perceived as a de facto arm of the prosecution.



Examining relationships
Critics of the Harris County criminal justice system have long complained that the relationship between judges and prosecutors is too chummy. For example, of the county's 22 criminal district court judges, 18 are former prosecutors in the District Attorney's Office.



Even District Attorney Chuck Rosenthal occasionally tells the joke about a local judge who, at the start of a trial, turns to the defense attorney and asks, "Is the defense ready?"


The judge then turns to the prosecutor and asks, "Are we ready?"


"That's the kind of danger that this particular fact-finding is illustrating," said Willing, who also has heard the joke.


The Attorney General's Office refused to comment. Jeff Keyes, one of Draughon's attorneys, would only say that he found the judge's intervention in the case highly unusual.


"I can say that I have never seen this type of situation in my 32 years of practice," said Keyes, based in Minnesota.



Past cases in question
Troy McKinney, a past president of the Harris County Criminal Defense Lawyers Association, said he is especially concerned about what he sees as Krocker's influence � because she is a judge � over some of the witnesses she contacted.



"If I were to call someone in the Medical Examiner's Office and ask them to provide me with an affidavit, they'd tell me to go shove it," McKinney said. "Judges just don't go around litigating cases. In fact, as a judge, you are prohibited from doing so."


McKinney noted that he is not certain that Krocker violated the code of judicial ethics.


"But it certainly calls into question her judicial independence," he said.


In the opinion of Jim Marcus, of the Texas Defenders Service, any conviction obtained in Krocker's court during the time she was involved in the Draughon appeal should now be suspect.


"All of those people may have a right to a new trial," said Marcus, who specializes in appeals of death row inmates. "That would be a huge impact."


He added that that would include the capital murder conviction of Edgardo Rafael Cubas, who was condemned to death in May 2004 for the rape and murder of a 15-year-old girl during a spree of killings, robberies and sexual attacks in Houston's East End.


Despite the criticism, Krocker is steadfast that her actions were correct and ethically proper. She notes she was allowed limited intervention in the Draughon case by "a very experienced federal judge who is well-acquainted with judicial ethics." But judicial ethics expert Hardwick disagrees.


"Based on what I've seen," she said, "(this is) pretty bad."

quote:

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In the opinion of Jim Marcus, of the Texas Defenders Service, any conviction obtained in Krocker's court during the time she was involved in the Draughon appeal should now be suspect.

"All of those people may have a right to a new trial," said Marcus, who specializes in appeals of death row inmates. "That would be a huge impact."

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Is it any wonder TDS has trouble getting people to listen to them?

Shannon nails it again. I don't know about the propriety of what the Judge did but to suggest that the subsequent trials in her court are invalid is ridiculous. Credibility is hard to come by for an organization whose agenda is so transparent.

But, who loses more credibility, the lawyer who made that ludicrous statement or the reporter that repeated it in print?

There is little in the way of filtering going on nowadays.

I like the notion that the judge was willing to stand up and defend herself against alligations of misconduct. More power to her. Why shouldn't a prosecutor have the right to get involved when allegations are being made that could affect the lawyer's right to practice law?

What, exactly, has the judge done wrong?

The premise of the complaint seems to be that she has used her position as a judge to try and influence the outcome of a case. For that, I see no evidence.

She contacted the federal court because accusations had been made against her, bringing into question her reputation as a person with a law license. The accusations looked back to a time when she was practicing as a prosecutor.

Presumably, even the anti-prosecutor crowd would agree that she has a right to dispute the accusations, so where is the beef?

OK, so now she happens to be a judge. No doubt she might get more attention from the federal judge because of her stature, but does anyone really believe that a federal judge is being overwhelmed by her position as a state court judge? Last time I checked, federal judges had no problem telling state judges when they are wrong.

And, if the defense premise is accepted, then a prosecutor who becomes a judge must accept that he/she may not vigorously defend himself/herself. What is up with that?

Would the same approach be accepted if the judge was a former defense attorney? Methinks not.

No, I think what is really going on here is the attempt to punish a former prosecutor, who now happens to be a judge, for challenging the accusations made against her. In addition, it's an opportunity to point out that there are a lot of judges who are former prosecutors.

If I am missing the real point, please let me know. (I also wonder who filed the complaint against the judge.)

If the rules of judicial conduct preclude lawyers who become Judges from taking part in post conviction proceedings then it is open season on the cases they handled in thier former incarnation.

quote:

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The Attorney General's Office responded by calling Krocker's request to intervene "improper and unnecessary," adding that her testimony would amount to "second-guessing and hindsight roundly rejected" by the federal courts.

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Who better than the accused to bring a defense? This Judge is not gratuitously injecting herself into the case to preserve a sentence. She is trying to protect her reputation. If, as I think they should, the committee on juducial ethics takes no action, the allegations will still be out there unanswered for a future opponent to exploit. If she seeks to place historical facts before the appeals court that are absent from the state's pleadings then those facts certainly are not "hindsight and second-guessing."

quote:

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Troy McKinney, a past president of the Harris County Criminal Defense Lawyers Association, said,"...If I were to call someone in the Medical Examiner's Office and ask them to provide me with an affidavit, they'd tell me to go shove it"

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I hear this one all the time. Defense attorneys say that people will cooperate with us but never with them. I say ask yourself how it is that your profession is held in such low esteem. There are many good and ethical defense lawyers but the unethical ones have wiped out the rest.

I just don't see the problem with a person stepping forward to defend herself.

As a capital writ prosecutor, the first step I would have taken was to contact the judge/former prosecutor myself about the veracity of the defense's allegation. I wonder why the AG didn't.

This illustrates a double standard. The convicted murderer can claim anything, but the former prosecutor cannot respond. It doesn't matter that in this case appeals at the state level have been exhausted and the present claims were either never raised or were rejected by state courts. Little wonder that such claims cause so much friction.

There's a little more to this story than appears in the paper. She wasn't offering her assistance on the Brady claim. She was trying to get relief for the inmate on an IAC claim.

Thanks for responding, Ed. That one had me scratching my head. I couldn't imagine why you wouldn't want her help if that's what she was offering. I guess I shouldn't be surprised that the press failed to get the story right.

So she was (in her view) trying to guarentee the defendant's rights to effective assistance under the 6th and she is being attacked as too State's oriented? Bizarre.

The only lesson to be learned is: no matter how hard it is, leave it to the parties and the normal operation of a pretty effective system.

Oh yeah, how did I forget this old lesson! Never believe what you read in the press.

OK, so the picture gets a little clearer (thanks, Ed, for the details). But, I still have to ask, what is the ethical problem?

There may well be a political problem with a judge seeking to act in the role of an AG, who has federal postconviction responsibility. And, perhaps, if a judge seeks to insert herself in that role she is so far departing from an understanding of the system that there is an ethical problem.

Someone help me here. Where is our ethics guru, Chip?

quote:

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Among other points, the lawyer argued that Draughon did not intentionally shoot the victim, as Krocker had claimed at trial. Instead, the defense said, Draughon had fired a shot in the air to frighten his pursuer, but the bullet ricocheted and struck the victim.


The defense also claimed Krocker did not inform Draughon's trial attorneys about witness statements that might have bolstered his defense.

---

quote:

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In September, Rosenthal ruled that Draughon should get a new trial. She based her decision on the fact that the jury did not hear testimony that the bullet that killed the man who was chasing Draughon had ricocheted. However, Rosenthal rejected the allegation that Krocker had withheld evidence from the defense. The case is now before the 5th U.S. Circuit Court of Appeals.

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I would like to know more about this one. If the Judge was attempting to aid in a Strickland claim, the tone and substance of the story could not be more misleading. Could someone please post the cite to the opinion?

Those who know Jan Krocker personally, as I do and as I assume some others posting in this thread do by virtue of their experience in Harris County in years gone by, know that she was ethical as not only a prosecutor, but as a defense attorney and a judge.

The only restrictions I am aware of regarding a judge testifying is when they are testifying regarding a matter that they handled as a judge.

Why shouldn't Judge Krocker be allowed those same first amendment rights of free speech regarding her actions as a prosecutor? Particularly if there are some allegations that could form the basis of a grievance? Of course she has those same precious constitutional rights as that reporter does, and when I read that article in the paper I was just rolling my eyes.

Having handled cases with Judge Krocker during her time as a defense attorney, I don't believe she would do anything but be 100% honest.

But I don't see how anyone can claim Judge Krocker violated, crossed or even came near an ethical boundry.

Why doesn't she have the right to defend herself against allegations she withheld evidence as a prosecutor? It doesn't affect a case pending in her court, and it happened many years before she was on the bench. Further, in her defense, she wrote to Judge Rosenthal to ask permission to add her testimony to the matter.

To me, this is like saying that if Judge Krocker, while off the bench, witnessed a crime or even a car wreck occur and later testified at a trial as a fact witness in another court. Would that be a violation of judicial ethics, to testify about something she did not see in her capacity as judge? Of course not, and neither is this.

I'm only surprised it was in the Houston Chron and not the Austin Chron.

The story was quite unclear, but that is no surprise, as we rarely comment or clarify such things to reporters when there is pending litigation. Let me preface this by saying this was not my case. Essentially, Draughon argued that the State suppressed ballistics evidence that proved the ricochet theory and/or counsel was ineffective for failing to pursue this theory. Our response was that none of it was material and/or prejudicial. Who cares if the fatal shot was a ricochet if Draughon was firing at the victim? Additionally, the evidence did not actually support the ricochet theory.

I don't want to speculate on Judge Krocker's motivations for seeking to intervene, but from a pure litigation perspective, her non-expert opinions on the weight of the ballistsics evidence were immaterial. An objective observer might think that her unusual efforts were personal in nature, rather than professional. Ultimately, we decided her testimony was neither relevant nor beneficial to the case.

Ed

P.S. I should also say that there was no persuasive evidence that Judge Krocker ever suppressed anything. This was an innocence claim masquerading as a Brady/Strickland claim. For those who don't know, innocence claims are not cognizable in federal court, so they must be raised under another theory.

I thought it interesting that the article suggests that there is serious criticism of the Harris Co. criminal bench because 18 of the 22 criminal district judges are former prosecutors.

Is there something about prosecutors that makes them, as a class, suspect as criminal trial judges? Or would the same criticism apply to criminal defense attorneys? If so, where would you have to look for fair-minded judges in criminal cases? Maybe amongst the ranks of P.I. and insurance defense attorneys--certainly a group with a sterling reputation for fairness.

Perhaps the Houston Chronc can do a subsequent story that identifies these critics of the Harris Co. Criminal bench, and expand on what they mean, and what kind of attorney they think will make a truly fair criminal district judge. Inquiring minds want to know.

If it were up to the Chronicle to establish the criteria for a "fair judge," it would be one who:

1) Adamantly opposes the death penalty;

2) Would only permit DNA evidence if it was "exculpatory;"

3) Selected grand jurors from the ranks of the ACLU, Amnesty International, ivory tower academia and other such bastions of liberalism;

4) Appointed only the most exceptionally qualified criminal defense attorneys to represent indigent defendants and paid them $400/hr for their services;

5) Appointed defense experts upon request without regard to relevance, need or cost;

6) Only revoked probationers upon a showing, beyond a reasonable doubt, that the probationer had committed capital murder;

7) repeatedly encouraged drug "treatment" regardless of how many times a probationer tested positive; and

8) Understood that ALL crime originates with some social or psychological force separate and apart from the internal FREE WILL of the defendant.

There's no way to win, Terry... if you were a prosecutor, you're biased, if you were a defense attorney, you're REALLY biased. And if you had no criminal experience at all, you're probably just clueless.

I think what made this all newsworthy was the fact that the Judge filed a motion to intervene in the case as a party and sought to provide testimony of witnesses. This is highly unusual. Providing affidavits or information to the AGs office would not have raised a question. She did not lose any rights by becoming a judge, but the procedure used was and is unusual.