Things to do While Waiting For a Verdict in Texas

I received an email from Austin criminal defense attorney Jamie Spencer demanding an apology for my “frequent blaspheming” of the Sovereign Nation of Texas.  Attach to the demand was a link to his post about the DWI trial of Casey Price, from the Houston Chronicle.

It was a normal enough trial (for Texas) when, during jury deliberations,

Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.

The judge also said if Price tested positive, the results would be given to the jury, says [defense lawyer Paul] LaValle.

So what if the defendant was in the middle of trial.  So what if the judge was ordering the potential creation of evidence on her own to inculpate the defendant.  We’ve got a defendant and a jury, and no reason to waste the money of the good taxpayers of Texas waiting on a verdict.

The funny part is that this isn’t the bad part of the story.  The bad part has yet to come.

Before the drug test could be arranged, the jury returned with its verdict.

Not guilty.

Price wasn’t surprised. She said she felt the video clearly demonstrated that she wasn’t drunk. Still, she was relieved. She was free.

Or so she thought. But Judge Johnson had different ideas. Having ordered the drug test, she instructed the bailiff to take Price away for the drug test.

So Price was led to another floor of the courthouse, where she was questioned (strangely, she thought) on the details of her financial condition — her income and what she pays for rent, auto, utilities, clothes, etc. — and then made to urinate into a cup in front of a female staffer.

The results were negative.

Then they told her she had to pay $11.

Now I’m aware that many people in Texas feel that Yankees are a bit slavish about the whole concept of sequencing, like verdict before sentencing, but apparently this offended even Texan sensibilities.  Especially the part about paying $11, would have covered the post-verdict mocha frappocinos in New York.

Right now, you’re probably asking yourself (as did I), what was the prosecutor doing while the judge decided to move things forward with undue alacrity.

Eva Flores is a rookie who has been with the DA’s office only since May. She remained silent.

The veteran prosecutor who had supervised Flores during the trial, Gary Miller, had returned to his office when the trial ended, said LaValle. He said he’s confident Miller would have advised the judge against ordering the drug test.

A spokeswoman for the DA’s office, veteran prosecutor Donna Hawkins, said the DA’s office has “no responsibility to be part of anything” after a not-guilty verdict is announced.

Not surprisingly, they resorted to the motto of the Sovereign Nation of Texas, “not my job.”  My favorite is the senior prosecutor, Miller, who says he’s “confident”.  That’s comforting.

And what of the fine judge who came up with a bunch of great ideas to tweak the system a bit for maximum effectiveness?

LaValle noted that Judge Carolyn Marks Johnson was a visiting judge, a former district judge who had presided over civil trials, not criminal proceedings.

Johnson says she can’t comment “on a case that is still before me.”

[Reporter Rick Casey] asked if the case wasn’t over.

“There may be motions filed on it,” she said.

Judge Johnson has a point.  After all, if she’s going to sentence before verdict, you never know when the defense is going to make post-acquittal motions.  Maybe they plan to move for double-acquittal?

Too often, we don’t appreciate a judge who thinks outside the box, even if she’s trying to put the defendant into one.  Here, we have a jurist who has broken free of the chains of mundane procedure, slavish adherence to the laundry list approach to trials and an exceptionally firm view of justice.  Doesn’t she deserve our appreciation?

And the prosecutor, who we so often challenge for over-reaching, showed remarkable self-restraint by standing mute and rejecting the urge to become embroiled in self-serving grand-standing.  Where’s the kudos for this young, but obviously talented prosecutor?

Thus, I bow to Jamie Spencer’s demand.  I apologize for all the bad things I’ve said about Texas justice, and concede that there is no law like Texas law.

21 comments on “Things to do While Waiting For a Verdict in Texas

  1. Kathleen Casey

    Great headline. Nails the mindlessness coming out of this judge.

    Can’t your friend nominate some other state for rib-tickling weird justice stories? If not, and he wallows in his snit, well — we’re not laughing with you. We’re laughing at you.

  2. Andrew G

    Where’s Molly Ivens when you need her? It used to be that Texas Monthly rivalled the Lampoon for stories of nutty behavior (remember the best little whorehouse?) but apparently no more.
    There must be something in the water or sunshine there that causes this.

  3. Jamie


    You mock the judge for refusing to comment while Motions are possibly pending.

    “Double acquittal.” Very clever. I know you know there’s no such thing.

    The judge however is clearly referring to the possibility of the State’s filing a motion for judgment not withstanding the verdict.

    Have New York prosecutors become so lazy that they don’t even file those up there?

  4. SHG

    Never fear.  Jamie’s in no snit.  Texas criminal defense lawyers like Jamie are the best thing they’ve got down there to stand between the insanity and rough justice.  It’s a full time job in Texas.  He’d be laughing too if it wasn’t for the fact that he has to represent people before these judges.

  5. SHG

    Oh my, how could I have ever forgotten the JNOV by prosecutors after an acquittal.  What was I thinking!

  6. SHG

    He’s on trial at the moment, and can’t walk and chew gum at the same time.  But no doubt he’s of the same view.

  7. JR

    I don’t think we should be too hard on the rookie prosecutor. Should she have objected to the testing? Yes. Should we cut here some slack? Yes. She’s a rookie. Rookies make mistakes. I bet she never makes that mistake again. But, could this situation ever happen again?? Maybe in Texas, right. 🙂

  8. Ron in Houston

    OK you guys. Have compassion on all the inmates trapped in the asylum known as the State of Texas.

  9. Kathleen Casey

    “In trial” to him, I see. He Fights the Fight and so in that respect is of the same view.

    But wouldn’t he no doubt admit that conditions in the Sovereign Nation beg for frequent, um, zinging?

    (Frequent “blaspheming” is directed at God and only God, isn’t it? Jamie’s verb choice appears to place the Almighty and Texas in the same realm. A distinction without a difference, somehow, consciously or not.)

    I think that every day here in New York, about New York, The Empire State, Once Upon A Time.

  10. Jamie

    TT should definitely weigh in when he’s done fighting the fight. Or should that be takes a break from it?

    After all, this story is not just from Texas, it’s out of Houston, and if there’s any place more dangerous for a criminal defendant than Texas… it’s Harris County Texas. (Look up those death penalty statistics if you like.)

    Kathleen: It’s pretty hard to get out of Texas. It’s further from El Paso to Beaumont than it is from Beaumont to Florida. It’s further from Beaumont to El Paso than it is from El Paso to California. And it’s further from El Paso to Texarkana than it is from Texarkana to Chicago.

    Not only that, but I’m actually stuck right here in the middle of Texas. Add in the nightmare scenario of having to study for another State’s Bar Exam and ask me whether I love it or leave it? I’m sticking right here where I am.

    But you bring up a good point about headlines: Scott’s is better than mine. Occupational hazard of forwarding posts to him is that while I gain one or more of those ever-so-coveted backwards links, I always get outwritten.

    And to that I now have to weigh in getting out-headlined. Oh well.

  11. Kathleen Casey

    Stuck right there where you are useful. That’s what Scott’s getting at. Cheer up.

  12. Mike

    This actually presents a really interesting judicial immunity question. A judge cannot be sued under Section 1983 for even egregious acts unless he acts in “clear excess of his jurisdiction.”

    Here, the judge ordered the defendant seized after the jury had returned its verdict. Was that an act outside of his jurisdiction?

    I wonder when, under Texas law, a judge loses jurisdiction over a defendant. When the jury renders its verdict? When the judge reads the verdict? Or must the judge certify the jury’s verdict?

    Did the judge certify the verdict before ordering that the defendant be seized for drug testing? If so, does that matter?

    A really, really interesting issue – but one that probably turns on Texas law; so it’s not one I’d feel comfortable commenting upon. But I hope the woman whose rights were violated considers filing a civil rights lawsuit.

  13. Turk

    Classic. But shouldn’t the judge’s name be in the subject heading? You know, so that people Googling her find the post easily?

    She can always make a post post motion to have it removed.

  14. Ron in Houston

    Mike, I don’t know but I’ll bet Mark Bennett does, maybe I’ll email him and ask him to comment.

    I do hope that this person can and will file a civil rights lawsuit.

  15. Joel Rosenberg

    Please, please tell me that you’re both being sarcastic.

    Please? Please lie, if necessary.

    Were I in the t-shirt business, I’d think thsat Carolyn “Red Queen” Marks Johnson’s face definitely belongs on one. No matter what it looks like.

  16. SHG

    Sarcastic?  Heheheh.

    Speaking of t-shirts, it arrived yesterday.  Thank you.  I love it.  I shall proudly let my little corner of the world know about TwinCity Carry.

  17. Jamie

    Joking? What’s there to joke about?

    A JNONGV (‘Judgment Non Obstante Not Guilty Verdicto’) is most decidedly not a laughing matter.

  18. Joel Rosenberg


    Happy you (finally) got it. I’m kind of pleased with the design myself, although I kind of would be, given that friends designed it to my specs. (It’s good to have talented friends.)

  19. JT

    I suppose people who do drugs and/or drink have no rights in Texas. This is inane and outrageous, had this happened in a larger arena, there would be in incredibly public outcry. At what point during the trial, or after, or ever, did the judge consider due process and justice?

  20. SPO

    Absolutely appalling decision by the judge. She should be prosecuted under whatever criminal statute Texas has covering criminal confinement, and she should get the max.

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