When the news of Polk County, Texas, Judge Elizabeth Coker got caught texting prosecutor Kaycee Jones broke, shock and outrage ensued.  But not from all quarters.  To the extent Mark Bennett was shocked, it was that she knew how to text.

The criminal-defense lawyers inter­viewed for the Chron­i­cle arti­cle call Coker’s actions “shock­ing” (Richard Bur­roughs) and “unusual” (Stan Schnei­der). I am not shocked, but I do find Coker’s con­duct unusual—not in its under­ly­ing con­tempt for the adver­sar­ial process, but only in its high-tech (and eas­ily doc­u­mented) execution.

The new news is that Coker has chosen to resign, and by resigning, terminate the investigation into her texting instructions to the prosecution during trial.

The Commission, however, chose not to pursue these allegations in exchange for her immediate resignation. Coker utilizes that out in her public statement.

“The Judicial Commission made no finding or determinations of fact in my voluntary resignation, and I have not admitted guilt, fault or liability in my voluntary resignation. While I could have fought these allegations, it would have involved significant time, significant expense, and disruption to everyone involved. I did not feel that was in the best interests of the taxpayers, our court system, my family or myself” Coker stated.

Yeah, that sounds about right. Coker sacrificing herself for the good of a long list of others, including the taxpayers who paid her salary and the court system she allegedly abused from a position of power.

The image of a judge texting a prosecutor with advice during the course of trial has something of a comical ring to it.  In the old days (read before judges texted), they would just pull a prosecutor to the bench to whisper a few key words, or make a call to their supervisor after the trial adjourned for the day if they didn’t want everyone in the courtroom seeing them engaged in an ex parte discussion.

In a worst case scenario, they would jump into the fray and ask the questions themselves that the prosecutor failed to ask, though with the tone and smile suggesting they were just getting at the truth for the sake of the jury.  Judges tend to come off as kindly and wise to juries, largely because they control the narrative. Short of all-out war, there isn’t a lot defense counsel can do to prevent a judge from wreaking havoc with a trial. We object, they overrule, life goes on.

But Coker’s resignation, and note that I’ve not given her the honor of using her former title, because when a judge resigns in disgrace, she doesn’t get that honorific here, will not necessarily be the end of this mess.  Via Grits for Breakfast:

Following Polk County District Judge Elizabeth Coker’s resignation in the wake of revelations that she’d texted advice to prosecutors during trials, the prosecutor in the watershed case, Kaycee Jones, who was since elected to a judgeship, also finds herself in hot water, AP reported Oct. 23. In a letter to the state bar’s disciplinary counsel:

Jones acknowledged passing along the texts, designed to bolster the  prosecution’s case, to the lead prosecutor during a child abuse trial.  “It was wrong and I knew better,” she wrote.

Jones’ name was prominently  mentioned three times in Coker’s resignation agreement. The signed  document refers to the so-called “texting and judging” incident as well  as allegations of other improper communiques and meetings between Jones  and Coker involving additional cases that were not specified.

Kaycee Jones, on the receiving end of the texts from Coker, has since been elected judge.  According to Grits, now that the Coker “investigation” is over by means of her resignation, the Commission is ready to deal with its investigation of Jones.

As Bennett noted at the start, there is nothing new about judges giving a hand to the prosecution.

Every expe­ri­enced criminal-defense trial lawyer has accounts of judges giv­ing point­ers to young pros­e­cu­tors, or cut­ting them slack that defense coun­sel would never get, “because they’re young and don’t know any bet­ter.” I’ve had mis­de­meanor judges tell me that they thought training-up the baby pros­e­cu­tors assigned to their courts was part of their job. I heard this week that one district-court judge “wouldn’t let” a junior pros­e­cu­tor try any cases in his court because the prosecutor’s trial skills were, in the judge’s view, woe­fully lacking.

Some judges see cases going down the tubes not from lack of evidence of guilty, but ineptitude. While it’s an adversary system, where the skill of advocates for either side plays a role, judges have always recognized that prosecutors are often inexperienced and expose the soft-underbelly of their case to the defense as a result.  It’s not that the evidence of guilt isn’t there, or that there are no sound arguments to be made; it’s that baby prosecutors aren’t sufficiently familiar to handle what a more experienced defense lawyer throws at them.

What makes Coker’s conduct stand out as particularly egregious isn’t that she did what others judges do, but that she put it in writing, left behind proof of her wrongdoing. That rarely exists, and we’re left pondering what words were whispered at the bench or whether a phone call was made when the judge left the bench.

It’s not that judges helping inexperienced lawyers to improve their game will strike some as a terrible wrong.  After all, prosecutions shouldn’t be won or lost because of the lack of experience of a prosecutor, but because of the evidence of guilt or lack thereof. Yet, the point Bennett makes, and the reason why Coker’s investigation would have done well to proceed even though she resigned, is that it offered hard proof of a judge who left the bench to sit at the prosecution table.

If baby prosecutors lack the experience and skills to do their job, they need help. That help should come from their own offices, their supervisors, their senior trial attorneys, someone who is charged with the job of prosecuting.  Where it cannot come from is from the bench, as much as judges may believe it’s part of their job to bring up baby.

It’s understandable that judges may find it painful to watch an inexperienced prosecutor. It’s understandable that judges may be troubled to see a prosecution go down the tubes because of ineptitude rather than evidence or sound arguments.  That’s the nature of an adversarial system. That’s the downside to due process.  It does not entitle a judge to take sides, even if she believes her intentions are good.

As for now-Judge Jones, hopefully the investigation into her role in this fiasco will bring this point home.  And hopefully, the lesson will not be limited to not putting impropriety into a text.