While electing judges makes little sense, it sometimes gives people a judge who wouldn’t be picked by the party power brokers who put up the names to be appointed by their minions in office.  Kelly Case was elected in 2012 to serve as a 9th Judicial District Court Judge in Montgomery County, Texas.  His term lasted until 2016. Judge Case did not.

District Judge Kelly Case on Wednesday announced plans to resign effective next month in a letter to Gov. Greg Abbott. Case, who didn’t seek a second term, submitted the letter the day after Grant effectively won the seat by capturing the Republican nomination in a runoff.

Case’s staff said he wouldn’t comment on his resignation. But he has said that he is leaving the bench “to make more money” to pay for the college educations of his four children.

This will come as a shock to some, but no one gets rich by being a judge, and the benefit of lawyers laughing at your jokes doesn’t pay for shoes for your kids. Still, there is likely more to the story of Judge Kelly’s resigning before the end of his term, as his tenure was, ahem, controversial.

Case, a criminal defense attorney before becoming judge, presided over several high-profile ones, such as the death penalty case of Larry Swearingen, who has had five execution dates halted since his 1998 conviction in the murder of a college student.

Case also reduced the probation given to NFL star Adrian Peterson for his plea to a misdemeanor assault charge related to his disciplining of his young son. Prosecutors had sought to have Case removed from the case after he called attorneys in the case “media whores” at an unrelated meeting, resulting in an apology from the judge. And the judge ruled that the state law against online solicitation of a minor for sex was unconstitutional.

Higher courts, however, have overturned at least five of his rulings.

He was a criminal defense lawyer. He was also a prosecutor. In fact, he was the chief of the Misdemeanor Section in the District Attorney’s office. Texas prosecutors apparently took umbrage with his calling them “media whores” for being media whores. These are, apparently, fighting words in Texas. They have some very fragile lawyers down there.

That a judge decided to leave the bench for money isn’t a new concept.  More than a few federal judges, whose jokes are far funnier than state judges, have chosen to give up life tenure to cash in on their caché. But once they’re off the bench, they have the freedom to speak their minds, and when they do, their views come with the added gloss of having had the benefit of coming from an ex-judge. Kelly Case has chosen to do so.

I first wrote about the gold coin of death in 2011. I thought it was a myth. Surely, no one in law enforcement would ever celebrate another’s misfortune. A life sentence is not something for which a party is thrown. It is a horrible collision of lives where no one wins, except for the prosecution in Montgomery County.

Sadly, I was wrong and it is no myth.

There are three types of death sentences.  The easy one, carried out in advance and which is only reviewed by a judge if and when a subsequent challenge is made. Then, there are the two sanctioned sentences, as Jeff Gamso has explained: the slow death sentence and the slower death sentence. Sure, Justice Robert Jackson said that the prosecutor’s duty is to do justice, but if they believe that doing justice means getting a death sentence, isn’t that worthy of a gold coin?

Can you imagine? What sort of sick, twisted person celebrates another person’s death? And knowing their track record of failing to disclose evidence, it is very frightening that a “life” sentence now has a reward for the lucky prosecutor – a gold coin of death; something they strive to obtain, so they can be the lucky “princess for a day” and have a party and cake in their “honor.”

There are two issues in there, independent and yet, in tandem, far worse together. There is the incentive to get the sentence to win that gold coin, and there is the failure to disclose evidence in the process.  Judge Case’s experience on the latter is disconcerting.

In every one of the trials or hearings, the Montgomery County District Attorney’s office either withheld evidence, or hid evidence intentionally. Every hearing; every trial. It never failed that the Montgomery County Texas District Attorneys Office failed to disclose some part of the relevant, important evidence.

Most prosecutors and judges will find this observation inaccurate. To say it happened in “every hearing; every trial,” seems hyperbolic. And indeed, Kelly Case disclaims that it happened when he was a prosecutor. Different times or different incentives? Or something else?

But the idea that a prosecutor would be given a gold coin for an outcome of death, slow or slower, is appalling and cannot be divorced from the creation of an incentive structure that defies the ethical duties of the job.  The job of prosecutor isn’t to get convictions, isn’t to get a sentence of life imprisonment or worse.

When I think back to my days as a prosecutor in Galveston, I can always remember my boss, Michael Guarino (@mgua_) telling me, “Give them everything you have in evidence; if they beat you with it, then you didn’t deserve to win.”

Losing is just as much a part of prosecuting as winning. Probation is just as much a victory as life in prison, when the case calls for it. Neither winning every case, nor getting more death sentences than any other prosecutor, is a victory deserving a gold coin.  And indeed, there should never be a gold coin, an incentive to do wrong for a prize.

If a prosecutor wants a gold coin, they should do as Kelly Case did. Resign their governmental position and go out on the open legal market to earn it. The ironic aspect of this is that the prosecutor or judge honest enough to do so is the one we would hope would remain in their official position. But then, no one eating off a government paycheck should get a gold coin for their service. If they can’t find legitimate motivation, they shouldn’t be there at all. And that’s how we lose the ones we wish would stay in the job.