"One monkey doesn't
(quote) Senior District Judge
Monkey Business in the Court
Double Jeopardy leaves teen in jail
while judge takes ten days
off for Christmas
An Op-Ed by Daniel New
A young man is enjoying jail food this holiday season, after having been tried
twice for the same crime, given probation the first time, then sentenced to jail
the second. That happens to be against the law. It's called "double
Three different Lubbock judges became hostile when a private
citizen recently attempted to get legal relief through habeas corpus, and one
even made a joke about the law and the system, then went home to begin his
Habeas corpus is the most powerful remedy
provided by both the U.S. and Texas Constitutions, designed to protect citizens
from an over-ambitious judiciary. For almost a thousand years, it has been
the most powerful and exalted remedy in all of law. Habeas Corpus is,
among other things, intended to protect citizens from an erroneous judiciary
which has wrongly restrained a person s liberty in violation of law. It is
one of several "checks and balances" which allow one judge to review and even
suspend the sentence of another judge. What few citizens know, and
apparently too few judges seem to know, is that (1) any citizen can present a
petition for habeas on behalf of a person whose liberties have been suspended,
and (2) no judge has the discretion to ignore that petition!
Tell it to the judge.
And get mocked for your
On Friday, Senior District Judge Mackey Hancock remarked
in a stern voice and with a scowl, "You're asking me to grant a writ of habeas
corpus in regard to a case tried by another judge in this courthouse?
Look, we have a rule around here, and it's this: 'One monkey doesn't
monkey with another monkey's monkey business.' If you get my
meaning. Now, if you'll excuse me, I'm busy. You can go straight up
to road 132 miles north of here to the Court of Appeals in Amarillo." He
rose dismissively, and left the room.
Judge Hancock seemed oblivious to
the fact that he does not have the option to reject such a petition out of hand,
indeed, that he has the legal obligation, under Texas statute, to grant the
application for the extraordinary writ of habeas corpus. He may, upon
review, deny the petition. But, by law, he may not properly refuse to look
The background to this story includes the fact that Albert
Nicholas Brann plead guilty to burglary of a habitation in open court. No
sympathy there from the public or the court, nor should there be.
On May 1, 2001, District Judge Cecil Puryear sentenced the defendant to
three years probation, without jail, it being his first felony conviction.
The gavel fell, the documents were sealed, the file folders were closed, and
sent to the District Clerk. The case was closed. Now a probationer,
he was sent across the street from the court house to report to the Probation
Office and fill out the paperwork to fulfill the sentence. This is the way
the system works.
What happened next is not.
Probation Officer read the order, administered a standard test in order to build
a file and a profile on the probationer before her. At the end of the
test, a woman said, in effect, "You failed the test and it shows that you
probably will not be able to serve probation without some added
offense. The Probation officer then suggested that, despite
the Judge's probated sentence, Brann should be locked up, and reported that fact
to the District Attorney, to Brann s privately hired Attorney and to Judge Cecil
Puryear, who promptly convened a new hearing, considered the new evidence and
the recommendations of the Probation Officer and the District Attorney and then
re-sentenced Brann to be locked up in the Lubbock County Community Corrections
Facility for a period of not less than 30 days and not more than 24 months to be
followed by Brann serving the remainder of his three year sentence on community
This case is typical of a major problem in Texas,
and the United States. Judges often do not know the laws they are supposed
to enforce, and even when they do, if they have to decide between protecting a
defendant's rights and the perception by the public that they are "soft on
crime," the defendant is "short on luck." Nearly 250 days later, Brann is
still behind bars.
This writer was simply along for the ride. I
knew little of the case when I accepted an offer to ride to Lubbock, in exchange
for some stimulating conversation and an opportunity to see from the inside how
our judicial system works. I was prepared to witness some resistance from
a mere citizen -- a non-lawyer -- daring to approach the bench of a lofty judge,
but I was not expecting to see that kind of hostility toward someone simply
doing what the law not only allows, but considers the sacred duty of both
citizens and judges to carry out. I had no intention of writing an article
about the courts of Lubbock, Texas.
The hostility was palpable, and it
was almost instantaneous. Judge Puryear was gone for the holidays.
Well, that was reasonable. After all, it was already 11:30 on a Friday
morning! And he was intent on turning Christmas into ten days of leisure
time, by virtue of his ability to write his own schedule and docket. He
reacted by telephone with anger, saying, "See me after the New Year. I'm
gone for the holidays."
Next to be approached was the work-horse
of the District Court, Judge Jim Bob Darnell, a man well-known for his strong
work ethic, and for being both friendly and approachable. Darnell was the
only district judge practicing in the entire court-house, all the others either
gone, or clearing their desks to leave. After all, Christmas was a scant
four days away. But Darnell came back from lunch to handle a long line of
over a dozen jail inmates shackled together, all hoping for the Christmas spirit
to extend to them.
Judge Darnell seemed all business, neither
jovial nor stern, until he looked at the nature of the document before
him. Within seconds his demeanor changed to a frown, and he tossed short
questions to the petitioner. "Who are you?" "What do you do for a
living?" "What is your relation to this case?" He didn't like the
When reminded that he has the "jurisdiction" to receive
and grant habeas corpus applications (which was a polite term for "duty"), Judge
Darnell replied incorrectly, "I also have the discretion to deny it
(review)." Petitioner then placed a copy of Texas Code of Criminal
Procedure to the appropriate Article 11.05 and placed it in front of the now
increasingly unhappy judge. The passage was marked up like some people's
Bibles. It said, The District Courts, or any Judge of said Courts, have
power to issue the writ of habeas corpus, and it is their duty& to grant the
writ under the rules prescribe by law.
Darnell read it quickly and
silently, handed the book back to the citizen, and said, "Well, I'm not going to
do it," and the interview was concluded. Another irksome citizen summarily
dismissed, the law subverted, and back to business as usual. But maybe one
or two of them are going to be home for Christmas.
The root of the
problem, as so wittily summed up by Judge Hancock, is that judges have to work
with one another. They have to rub shoulders at the country club, on the
golf course, at the fund-raising dinners they throw for one another, in the
cafes and restaurants around the court-house. They develop a working
relationship, and when some irritation comes along to interrupt that harmony
(even if it is legal), they don't want to see it. Far better that an
injustice occur than that the harmony of the office be disrupted. Far
better than the Constitution be violated, than the the ego of a peer be
violated. It is as if they are thinking, "After all, we have to work with
one another on a daily basis. We only occasionally have work with the
Constitution from time to time. Now go away, you bother me."
is a growing distance between The People of this country and those who are
invested with the authority to act as elected public servants, but who have
become instead incumbent public masters. There is a strong feeling that
justice is as irrelevant to our courts as is honesty in politics. Maybe
they are right. But if they are, then the Vision of the Founding Fathers
has failed. What happens next is up to The People.
2001, Daniel D. New
An Op-Ed by Daniel New ddnew@.... Special to the all
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