The Farcical HBA Bar Polls and Those Who Play the Game

The Houston Bar Association (HBA) will soon conduct it’s latest Bar Association Judicial Preference Poll.
This is a poll taken of HBA members, wherein the members vote on and rate judicial candidates. The intent is to give the public the presumed wisdom of the HBA Members, as a voting guide to follow in electing judges.

There is one small problem with using the HBA BAR POLL as a  voting guide. The problem is The HBA BAR POLL is largely  a Sham.  Many Lawyers know this; the public that  might rely on the POLL, does not know it.

Allow me to explain how this farce works.

First, the Houston Bar Association is a fine Organization. My critique of the farcical nature of the HBA BAR POLL, is not an attack on HBA as a whole.

HBA’s membership has historically been made up primarily of civil lawyers.  On the criminal law side membership is open to prosecutors and defense lawyers. What’s critical to understand is that  For years, legions from the Harris County District Attorneys Office have been strongly “encouraged”  to join HBA. For years assistant district attorneys  dues we’re reportedly paid for by the DAs Office. ( I don’t know if that’s true but I have heard it for years). What’s important to note is that one of the primary reasons all these assistant district attorneys were encouraged to Join HBA, was for one reason and one reason only.

What was that reason? Assistant DAs were encouraged to join HBA, so that they could vote in the HBA BAR POLL.  More specifically, they were encouraged to join HBA so that they might strongly impact, if not dictate, the outcome of the HBA BAR POLL regarding criminal court judges.

Now who would all these assistant district attorneys be voting for in the BAR POLL?  Hmmm. They were encouraged to vote for their friends and former colleagues. They were encouraged to vote for former DAs who were reliably pro-state & pro-law enforcement & thus not reliably impartial. They voted for their pals, men and women who had non stop tickets from the DAs Office to the Bench. For years that’s exactly what  happened. The prosecutors join HBA and in lock step they vote for their pro- prosecution pals. It makes sense but it does tend to skew the vote.

You might ask, well aren’t  there an equally large number of defense lawyers, who also join HBA who might counter the prosecutor’s vote? The answer is no there are not.

The defense bar does not march in lock step. We are not big on marching.  Moreover, we have our own organization.The Harris County Criminal Lawyers Association (HCCLA), is our Organization. I believe we are the largest local criminal defense organization in the country. We have well over 700 members. So, while some defense lawyers join HBA, the vast majority of defense lawyers join HCCLA, if they join anything.

What does this mean regarding the HBA BAR POLL? It means that for years, in BAR POLL after BAR POLL, far more prosecutors likely voted, then defense lawyers. And while the prosecutors block vote, the much smaller defense bar, votes according to their own whims.

Judges campaign for lawyers to vote for them in the BAR POLL. Why? Because the judges want to win the BAR POLL. Judicial Candidates tout their BAR POLL ratings as a reason for voters to elect or re-elect them to office.

State’s- oriented judges use their pro-state reputations to encourage prosectors and others to vote for them in the BAR POLL. Case in point, yesterday I received this email from Judge Katherine Cabaniss, 248th District Court.

“Dear Fellow HBA Member,

The Houston Bar Association’s Judicial Preference Poll will be released on Monday, September 8. I am asking for your vote.

In the HBA poll released earlier this year, I was voted either “Well Qualified” or “Qualified” by almost 87% of respondents.

I was a prosecutor for more than 11 years in Houston. I also served as Crime Stopper’s Executive Director for 6 years. Since being appointed by Governor Perry in 2013, I have worked to see that justice is done in every single case, every single day, in my courtroom.

It is the election season, and I need your help to keep Harris County safe.

Please take a moment to complete the HBA poll before the deadline, September 29. I would be honored to receive your vote. Additionally, please let a friend know about the poll, and ask them to vote as well.

Thank you for your time and consideration.

Katherine Cabaniss
Judge, 248th Criminal District Court
www.judgecabaniss.com

pd pol ad • Katherine Cabaniss Campaign
www.judgecabaniss.com

First, I am not a member of the Houston Bar Association. So I don’t know why I got this email. Like other pro-state judges, Judge Cabaniss cites experience as a prosecutor and  her years of service as CrimeStoppers Executive Director.

For the record, I have no personal animus toward Judge Cabaniss. We have known each other for years, have mutual friends, and no cross words have ever been exchanged between us.

But,  I have a naive notion that judges are supposed to be neutral and detached. Actually, it’s not just my notion. The Texas Code of Judicial Conduct, Canon 2 A, states  that ” A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and IMPARTIALITY of the Judiciary.
(emphasis added)

Judge Cabaniss states “I need your help to keep Harris County safe.”
This statement bothered me. So I emailed Judge Cabaniss. I expressed my concerns. I am relating those same concerns here.

The Judicial Canons do not state that a judge has any duty to keep a jurisdiction safe. I recognize that a defendant’s potential  danger to the  community is a valid factor for any judge to consider when setting bond or sentencing. But I think it incorrect to suggest that  ” keeping the community safe” is what a judicial candidate should be promising.

If you are running for Sheriff, you might promise you will keep the community safe. If you are running for DA, you might promise you will keep the community safe and you will do justice.

But, if you are running for judge, it’s seems appropriate to promise that you will comply with the law and act at all times in a manner  that promotes public confidence in the integrity and IMPARTIALITY of the Judiciary.

A hero of mine, a man we all refer to as “The Real Bob Bennett” once observed that based on their ads, he could not tell if some judges were running for judge or sheriff.

At long last I think some Judges have never severed the cord. They never really left the DAs office. That’s why we refer to many of these judges as the “Judicial Branch of the District Attorneys Office”.

Is There  something fundamentally wrong  with a BAR POLL that’s numbers are skewed by a designed and quite purposeful,  lopsided vote?

Is There  something wrong with a DAs Office that systematically encourages  it’s employees to take actions to elect judges who will predictably be pro-state and not impartial?.

Is There something fundamentally wrong when judicial candidates who should be trying to prove their impartiality, blatantly use their partiality, in order to promote their advancement in an already tormented system?

Ponder those, and while your doing that pray to God your liberty is never in the hands of  our “impartial” judiciary.

Other than that I have no opinion.

Robb Fickman
Houston

About Robert Fickman

Robert Fickman is a criminal defense attorney with 33 years experience in defending the citizen accused in both state and federal court. He is a past president of HCCLA and remains active in its mission.

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