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Interview with: Andrew Jefferson
Interviewed by: Louis J. Marchiafava
December 23, 1974
Archive Number: OH 081
LM: 00:03 Interview with Judge Jefferson. December 23, 1974. Judge Jefferson, what lead you into the legal profession?
AJ: Well, I sat around as a senior in high school, and I asked myself what I wanted to do with my life, and I said I wanted to be an architect. I started examining the question, “Where do you go to a school of architecture?” I decided on Tuskegee, because they had a 5-year work-study program that wouldn’t cost me as much as some of the other schools would, and that was it. I sent my $10 matriculation fee to Tuskegee, and I was making plans to go to Tuskegee. Then, I got to thinking about, “Where in the world is Tuskegee?” That’s in Alabama. It’s a long way off for a poor boy whose parents weren’t helping him at that time, mainly because they couldn’t with 3 other children. I started looking at something local. I started thinking about architecture here. This would have been in 1952. I kept thinking about Rice University School of Architecture, because these were the old days of segregation. Texas Southern had a School of Industries, or an Industrial Education Department, where you could take some courses in drafting, but no School of Architecture. I satisfied myself that if I stayed here up in Sexton, I’d have to go to Texas Southern. Since they didn’t have a School of Architecture, I began to think about Southern as a 2nd choice, and I decided on the law. I asked myself these questions: “Will you make a good lawyer?” and I decided, answered myself, “Yes, I will.” This, also, is a kind of commentary on my criticism of counseling and guidance in high school. There should have been somebody else saying to me, “You ought to do this, that, and the other.” I decided on law school or pre-law curriculum in undergraduate school and decided that I would become a lawyer, because architecture was too far away in terms of my immediate ability to pay. I started law by default.
F: Were there any particular persons that ever, except for counselors, that inspired and gave you guidance?
AJ: No, no. As part of my independent spirit, I asked the questions, and I gave the answers. I have a real, real deep and longstanding criticism of counseling and guidance in the high schools. I hope it’s changed from what it was when I was in high school. When the dean sent for you back then, you were in trouble. They weren’t thinking about helping you.
F: Advising you.
AJ: It wasn’t until I was finishing my 1st year in law school at the University of Texas that I had confirmed my choice of my life’s work. I had a vibe for the position of monitoring my dormitory where I lived. Part of the pre-employment process is to have you take a whole battery of examinations, Minnesota Multiphasic and lots of other things, part of which was an aptitude exam. At the conclusion of all these tests, I got the job as counselor in the dormitory, and I was also told that I would make a good lawyer.
AJ: And I was already into law school by 1 year. That’s how it all happened.
F: 04:10 Did you, perhaps, take on the leadership roles in the high school and college community?
AJ: In high school, yeah. I was one of the people who somehow put together the bundle of leadership qualities that somebody else saw, either fellow students or teachers. I got to be president of the class from time to time. I was president of the old senior class. I was editor of that little yearbook we had in ’52. I was president of the Honor Society at Yeats. At Texas Southern, I was president of the freshman class and president for senior class and president of my fraternity 2 years. I’ve gotten all kinds of things associated with that kind of student involvement. Great story I like to tell. It’s how I defeated Barbara Jordan, who was running that same year for president of the freshman class. She claims that I stole the election, which is not true. That’s one of our great stories, and I tell it. She doesn’t know what she’s saying, as a defense. I was editor—the business manager of the yearbook for 4 years at Texas Southern. In law school, you tried to make the best grades you can while working, the 1st year, full time, and the 2nd year, about 5 hours a day; the 2nd and the 3rd year, about five hours a day; and in the summers, full time. I really didn’t have any help from my parents past the junior year in high school. It wasn’t because they didn’t love me. They just couldn’t afford it.
LM: Did they encourage you?
AJ: 06:18 I was never the kind of child who gave a real indication to my parents that I needed to be pushed or reminded that school was important or that it was important to make good grades or that it was important to think about college beyond high school. These were things that I knew, somehow. I think I knew it because I associated with children in high school who were not from the same socioeconomic background as myself but with whom I associated because I was, at least intellectually, equal to them, and this gave me a chance to see what they were planning on doing. They were doing it in the 2nd generation. If you know the black experience in the 50s, most of the people who I went to college with represented the 1st generation of black families who were going to college. Many of the students at Yeats were the 2nd- and 3rd-generation kind of folk who were going to college. This gave me a lot of real insight and encouragement that I would not have gotten at home, where neither of my parents went to college. I didn’t have that kind of example.
LM: How did the training at law school prepare you for being a lawyer? Did they do a good job? Do you think it was inadequate?
AJ: That’s an interesting question. If you talk to enough educators in the law, you learn that law schools have never really taken a good deal of time in teaching law students how to practice law. In that sense, we’re different from the medical profession, because everybody knows about internships and that sort of thing, where senior medical students are looking to their internship. They practice cutting on people, and they’re drilling holes and that sort of thing. Law schools generally spend their time teaching you more the theory than the practice. I had occasion to ask a dean of one of the leading law schools in the country, “Why don’t law schools teach law students how to practice law?” His response was that the big firms are going to teach the law students how to practice law. My response to that was to ask him, “Where am I supposed to learn, since big firms, traditionally, have been wash-wish, at least in this part of the country. Opportunities for black lawyers are close to none. He had no answer to that question. It simply means that in some law schools, whether it’s Texas Southern or South Texas, who had not closely allied with the big firms and who were not dependent on the big firms for a large account of research to their foundations, have to strike out on their own with a new approach to the law practice by daring to teach law students how to practice law, with a lot more visitations to the courthouse and involving more people who are on their faculties who are actually into practicing law on a part-time basis, who are into practicing law full time and who teach law part time, or by attracting people to their faculties who have been successful, active, practitioners. If you look at many of the law faculties and talk to some 10:05 of the deans, they’re not interested in that. If a person who is into practicing law applies to a law school for a teaching position, the fact that that person is into practicing law and is then applying for a teaching position is an indication that that lawyer has been unsuccessful, just by definition. If there were an investigation of some kind to determine whether this person who applied was applying only because he can’t make it into practicing law, then maybe I’d understand this kneejerk reaction to applications by practitioners. There’s a law school somewhere in the San Francisco area, Hastings School of Law in the California system, I think, which makes a practice of hiring retiring practitioners, who have been successful, as their faculty. It’s the best way I know of putting together a faculty. I guess you need some kind of administration to take care of all the forms and applications for salary increases and that sort of thing, but the people in the classroom ought to know what happens in real life. There’s not been a real serious move toward making certain that that’s true in the legal profession.
F: Judge Jefferson, you did your undergraduate work at Texas Southern and then went onto the University of Texas. Was there any particular reason that you did not, at that time, go into the Texas Southern University?
AJ: Of course.
F: What were your reasons?
AJ: I’m no dummy. The University of Texas just happens to have the best law school not only in this state but probably in this region. It’s one of the top 5 law schools in the country. You might argue it’s the top 5, but there’s no argument about top 10. I knew that in 1956, when I was ready to go to law school. I had had a ball at Texas Southern, but I was ready to go to law school and get more serious about my life, and I applied to the University of Texas. I don’t think I even considered Texas Southern. When young people come to see me now about where they should go to law school, I ask them one question, and that is, “Where do you intend to live and practice law?” If they tell me “Texas,” I say, “Go to the University of Texas.” Do you understand what’s at the University of Texas? You know that. In the legal profession, if you look at the University of Texas, its history and tradition, and what the alumni have done and then look at the power structure in this state, you understand that those people run the state of Texas. I don’t know that I knew all that back then, but I knew enough to know that UT was where the profs were who taught the course, who wrote the book, and that’s where I ought to be going to law school.
LM: 13:07 What year was that that you went to Texas?
LM: How were you accepted? This was a period of desegregation and conflict.
AJ: 1956 was the 1st year—September of ’56 was the 1st year of undergraduate desegregation at the University of Texas. The graduate schools had been desegregated for a few years, maybe 2. It was a pretty depressing kind of an experience in terms of the whole range of things that are important students, the kind of things that were discussed by Justice Vincent in the case of Sweatt against Painter. There were 3 dormitories on campus which were advertised in the student handbook as integrated or desegregated. What that really meant was white students, of course, could live there. Any white students who wanted to live there could if there were vacancies. It worked out to almost 99.9% black in dorms D and F. I can’t remember what the 3rd building was, if there was one. I may have been mistaken. Maybe there were only 2 insofar as men were concerned. There were a couple of Chinese students who lived in dorm B. I lived in dorm F. It was all blacks. There are 2 floors. There must have been 40 students in that building. This was an old, unframed building. If you’re familiar with the term “vets” or “vats,” it became vats after a while. These were the village where the veterans lived after they came back on GI bill. They were repainted and renovated, and they were the places where the black males lived in September of ’56. I think I was the only law student in dorm F, which has some disadvantages in and of itself. The dormitory for law students was Simkins Hall, which was across the driveway from dorm F. That’s where law students were assigned. So, if you lived in Simkins Hall, you had the opportunity to discuss law with the people either with whom you shared a room or who were on the hall with you, next door, or downstairs or with whom you went to breakfast with. This is a kind of an extension of your legal education. I, of course, didn’t have that. I had general undergraduate students studying all sorts of things, who had only a superficial interest in legal matters. For women, the 1st year was even worse. They lived in a dormitory called the Liza D. Johnson Hall, which was on the campus of the old Sam Houston College, which was not even on the University of Texas campus. They were brought to school every morning in a station wagon that somebody paid for. It wasn’t until 1958 that the women came to campus. The university acquired a building on Whitis Avenue that became the dormitory or the rooming house—the living quarters—for black women. There was a lady whose name I can’t remember who was in charge of that building for black women. There was at least 1 black student who was a law student who lived in that building, and I think she was the only one, so she had the same kind of limitations that I had living in dorm F. Having been 17:00 admitted to the law school, you were at least in. I got a little scholarship paid when I went to law school. I got about $150 to pay my room rent for 1st semester, which was an enormous salary. I’m sure that if I had borrowed money, I could have gone out in the city and found a room somewhere. I went to work for a coed studio, which was the photographic studio which did the yearbook for the University of Texas. I could make as much money as I wanted to at a dollar an hour. I had to make the adjustment to how many hours I wanted to work and how many hours I had to devote to my studies. In a classroom, there was no problem. The prof comes in. Everybody’s seated. He puts out a course, and you give it back to him at the end of the semester. You either don’t, or you do. I made reasonably good grades all the time I was in law school. I never saw any demonstrable evidence of racial discrimination as far as I was concerned. There was one grade I got in a course where I debated the question, but as demonstrable, it wasn’t. Around the campus, there were, once again, this was pre-1964 Civil Rights Act, so the movies around campus on the so called drag Guadalupe Street, were not open to blacks. All the entertainment was on the east side of Austin. And this is a sort of irritation to the students. Café is around the building and around the campus. I remember there, on Guadalupe, it was not open to black students or anybody who’s black, but they accepted work. But somehow, black students were able to continue some measure of social life by having parties themselves. I am a member of the Alpha Phi Alpha fraternity and after a year or so, we organized a chapter of Alphas on campus. It was organized into a chapter of Alpha Kappa Alpha sorority on campus. In a couple of years, the Deltas had organized. There was enough social life even with the black students. For example, I never was invited to join a legal fraternity until I was like made an honorary group. Filed for Delta about a year or two ago, and that was through the Texas Southern University Law School. Who knows how much better grades, how much a better lawyer or better judge I would have been if I had joined the opportunity of living in the same dormitory as the laws students or belonging to one of their fraternities, because that really makes a difference, or it can make a difference.
LM: Once you completed your education and launched a career as a lawyer, how were you accepted by your colleagues?
AJ: That’s when—that’s a point at which you begin to really recognize the value having graduated from the University of Texas Law School. This in and of itself opens up doors and answers questions. Nobody wonders about you. You don’t have to demonstrate your ability even as black, because right away having graduated University of Texas Law School. The assumption is that you could not have and would not have but for a special kind of ability. Doors began to open up for you. I started practicing here after doing 6 20:52 months of active duty with the army. I just started a practice with another graduate of the University of Texas Law School, a fellow named George Washington. Our firm name was Washington and Jefferson. And we had lot of fun just by reason of that name, because I practiced with George only about 7 or 8 months. Of course, he and I had had a ball with George doing what we were doing, but there just wasn’t enough of it. We made end meets pretty much, because he was married and had a family. I had been married about 3 years by then, and things were just kind of touch and go most of the time. I heard about—no, I got a call from Jay Philip Crawford who had been at the University of Texas Law School. He was a senior when I was probably a 1st-year year law student. He was black, and we got to know each other. He had heard about a new opportunity in San Antonio. The DA over there had just been elected, a fellow named Charlie Leek. And Leek had enjoyed the supportive of the black political organization in Barry County. In exchange for their support he had promised that if he were elected he would hire a black assistant district attorney, that is to say, a state prosecutor. Up until that time—this would have been 1960, about January—there had been an investigator in the Harris county DA’s office. There was a fellow in the Fort Worth District Attorney’s Office, Tarrant County, who was not a courtroom lawyer, but he was assigned to work in the DA’s office, a fellow named Alex Malloy. That had been history as black people in Texas in terms of public prosecutor’s offices or county attorney’s offices, for that matter. Jay Philip called me. I want over and was interviewed by the first assistant DA, a fellow named Hippo Garcia, who is now a district judge, or who will be on January 1st ’75 in Barry County. I was hired, and I had the recommendation that George Stumberg, who taught criminal law and wrote the book on criminal law—the book that was used by most of the law schools at that time—he was also from the University of Texas. I had the direct recommendation by Dan Walton, who is now a district judge here and who was DA in Harris County at that time, and several other people. I ended up getting the job. This was historic insofar as Barry County was concerned and, substantially, insofar as the state was concerned. I was a courtroom-type lawyer. I went in and actually made appearances on behalf of the State of Texas. I eventually became chief prosecutor in the county court of law, number two, in Barry County, where Judge Charles Grace was the judge. I learned an awful lot from Charles Grace, who is real sensitive guy. He is a politician of the Marren-Maverick type, and it was a real advantage for me to have worked in his court for a couple of year. Then, I became interested in changing my employment. Charlie Grace put me in touch with Marren-Maverick, who put me in touch with the Oburra. I made a visit to Washington. George and I both go to Washington in 1962 during the Kennedy administration. I was appointed Assistant United States Attorney by Robert Kennedy in 1962, August of 1962, as a result to a lot of help, including help from Vice President Johnson’s office. Then, I moved over from state courthouse to a federal courthouse. I tried all kind of cases as a 25:43 state prosecutor, and I had no reason to expect that I would handle any different kind of case as a federal prosecutor. I immediately began my work trying different kinds of cases representing the Unites States of America in federal court. I never really noticed any real evidence of racial discrimination or that any difference was being made. At some time after the death of Ben Rice, who was chief judge of that district at that time, I was told that Judge Rice had issued orders that I was never to prosecute any white person. When I was told this, I had been with the office 4 or 5 years. I had been chief of the criminal section. By the time I got this story, I was the Chief Assistant US attorney for the whole district, from San Antonio to El Paso. That includes Austin, Waco, Del Rio, Pacos, and El Paso. We all kind of laughed about it. By that time Judge Rice was dead, and we started reminiscing about the way things had been. But if this were true, I was unable to reflect over the past years and to seeing any pattern in what gone before. I never got indication that the only kinds of cases I tried were against blacks or Chicanos. If not for that comment, if somebody asked me, as you have, whether there were any evidences of discrimination or indication that people weren’t accepting me as a professional, I would not have known that. Go ahead.
LM: You mentioned that you had the support of Bobby Kennedy?
AJ: You see, the United States Attorney is an official within the United States Department of Justice. The Attorney General is the head of the United States Department of Justice. When a United States attorney or an Assistant United States Attorney is appointed… United States Attorneys are appointed by the President of the United States with the advice and consent of the Senate. Assistant United States Attorneys are appointed by the Attorney General of the United States. At that time, it was Robert Kennedy. That’s the way that worked. But in order to get that in the process, you have to have the support of the party in power, you see? If we were discussing it now, I’d have to have the support of John Tower, you see? Then I had to have the support either of Ralphie Auburn or Lyndon Johnson or both. If you know anything about the history of relations between those two people, there was a real division of authority. It was ordinarily, the senator—the senior senator from the party on power gets all the patronage, but when the senior senator of the party in power is out of the party of the vice president, they’re in power from that state where the senator is a senator. Then, you got a problem, because the vice president doesn’t want to give up that power either.
LM: What were the significant events that led you to the position you now hold?
AJ: 29:29 I’ll give it briefly. I left the U.S. Attorney’s in June of 1968 to become an attorney with Humble Oil Refining Company. I was doing just great with Humble. It was of those premier assignments, you know, that represents the end of one’s legal career. You had found your place. After I had arrived at Humble and been installed, I can tell you that I remained active in community affair areas and keep up with what was going on politically. I became a little disgusted in about 1970. By that time, we still did not have in the State of Texas any black judge above municipal-court level. That was no big thing. The municipal courts are not courts of record. They are not elective. The municipal judge is appointed by the mayor with the advice and consent of the city council in most cities. We’d only had maybe 3 municipal judges at that time. I started calling my friends. I talked to Barbara George, who was in the senate there. I talked to Chet Brooks, who was in the Senate and still is. He was my Senator. I was on the Board of Trustees at Texas Southern University about that time, which is a governor’s appointment. Chet Brooks had recommended me or at least had not been opposed to me for that slot. One day, I just got on the phone, and I called Chet Brooks, and I said, “Damn it, it’s time!” I don’t think, at that point, I had in mind that I would be the appointee, but the issue was large enough to be concerned about it. As it turned out, I got the call eventually that if I were to agree to accept the appointment, that Chet and Barbara would talk Preston Smith about it, who was then the governor of the state. I said, “Okay.” Way down deep, I guess it wasn’t hard to say, because, as you probably heard, almost every lawyer wants ultimately to become a judge, and so it wasn’t too difficult to say “yes.” I said, “Yes.” After a while, I got a call from Governor Smith, and he appointed me to the Court of Domestic Relations here in Harris County, where I served 3 years. I was elected in a county-wide race, which is another story that you may want to talk about. I wish you would, because it’s kind of an interesting development in and of itself. Of course, after I served there 3 years, Governor Brisco appointed me to the bench I hold now, because I was unopposed in the primary and general elections this year. That’s pretty much what went into it.
F: You mentioned a few minutes ago something about you didn’t think that you would have been a target—
AJ: I hadn’t given it a lot of thought, I guess. Francis Williams had run for county bench. If he had run for county court of law by that time, he would’ve been a logical candidate. I suppose we could have thought of others. But the issue was, “Why don’t we have a black judge above the municipal court level?”
F: 33:25 Upon receiving the appointment, there was a bit of controversy concerning the governor’s 5th appointment, and there were some comments, I think, that you were supposed to have made that you eventually heard it in the news media. Would you like to tell us something about that?
AJ: There was no controversy about it when the governor’s appointment was made. As I recall, most of the reaction was either uniformly positive and supportive, or people would say, “Who’s Jefferson?” Because after all, I’ve had San Antonio 7 years, and I was over in the quiet, peaceful surroundings of Humble. All of a sudden, this guy gets a judgeship. These things are very much sought after, as you know. I don’t think there was any negative reaction. It was either neutral or very positive. All kinds of telegrams came in and letters from people not only all over the state, but many from a different atmosphere. I think many people said, “It’s about time.” 34:30 That’s the way this business works. People who have the power to appoint sometimes think that there will be a more negative reaction than there really is. But in some year, I don’t know what year it was, sometime after my appointment, I made a speech to the Prelaw Society at Houston Tilkson College in Austin. My thesis at that meeting was to try to show young, black students at a time when there was so much talk and noise being devoted to the question of how you beat the system. The militancy thing had become—the words had become more threatening than they had even been, maybe, in the 60s. This was a time when the Panthers were at their highest, probably. Half of my speech was devoted to a criticism of the system and the way that dealt with black people, minorities, and poor people. The 2nd half was devoted to an analysis of how you work within the system and make it better. Apparently, there was a newspaper reporter who sat through the 1st half of the speech. During the 1st half of the speech, I made the comment to young people to show them how things happen and why they happen. I said to them, “Why do you think I was appointed judge?” It’s true that Preston Smith, the governor, may think I’m a real nice guy, but the truth of the matter is my appointment made a lot of black voters happy. This was sometime after the election in that year, after the president had already been re-elected. That is to say, my appointment was made after he had already been re-elected. But when the newspaper put that on the wire, it came out, “Black judge says governor appointed him to get black votes.” This must have been—we were in San Antonio, my wife and family, during that time. I had driven over to Austin to make the speech and then driven back to San Antonio, because the next morning, I was playing golf with my friend Dr Pierce. Joe said, “I heard your name on the radio this morning.” He told me, and I proceeded to miss my shot off the tee, because there obviously was a misquote. The interpretation may have been a fair interpretation, because that may have been what she heard or he heard, depending on who the reporter was, but the message was altogether different. The message was that you’ve got to stay within the system, learn the system, and make the system work for you. Of course, when I got back, I was angry all that weekend. When I 37:45 got back, I called a friend, Don Pickles, who was the Managing Editor of the Chronicle and asked him to put a report on live so that I could get the record straight. If you’ve seen the so-called white paper on that story, it is precisely the way I feel. Yes, it made black voters, and it should have. It’s about time that elected officials do something to make black voters happy considering how loyal we’ve been to the Democratic Party and how little we have to show for it. Since that time, I’ve developed a very deep suspicion of newspaper reporters who—none of them ever comes with a tape recorder as far as newspapers are concerned. Radio people do come with the tape recorders. The news service now has a tape recorder. Somebody will come in with a recorder. They’ve learned it twice already. Even with a recorder, I’ve sworn over them. But I made a speech to Sigma Delta Kai Installation Group at Texas Southern sometime after that. I was critical of them, because I told them I never knew a reporter who knew shorthand or who used a stenograph or who had a tape recorder. If you don’t come equipped to make certain that you know what I said, don’t put what you think I said in quotes. That’s a very sensitive area, and that’s where it all started, that Austin business. But the governor and I remained friends after that. He and I exchanged notes. People wrote him. Dr Murphy, who was in charge of that program at Austin, wrote him a letter, a letter to the editor, that he saw. He wrote her a nice letter about it. Thereafter, the governor reappointed me to the Board of Regents in Texas Southern, so I assumed he and I were still friends.
F: You have, on occasions, commented that running for judgeship for a county-wide position is massive. Could you comment on your recommendations for improving this county-wide election of judges? Don’t comment on your recommendations. Just give me the total picture.
AJ: That is such a huge project. Part of the trouble with the present system under which we let our judges in the State of Texas is that you’ve got to recognize that the electorate is limited, to the extent that they can find out enough about the candidates in a judicial race. Judges are not controversial, on average. The county judge is, because, really—and if he is, he is because of something other than his judicial responsibilities. Very few people anymore realize that he’s a judge. They know that he’s the presiding officer of the commissioner’s court. That’s the court that determines what your taxes are going to be at the county level and all these other items that come up on that agenda from time to time. But of the 50 or more judges in this county, other than the county judge, there are very few of them who are well known among people in the county. Beyond this county, you think about the judges of the Court of Appeals. There are very few people in this county who they are. Then, you have the Court of Federal Appeals and the Supreme Court of Texas, and there are very few people who can tell you who they are. Now, if you don’t 41:29 know who they are, how are they ever going to choose between those people and somebody who runs and make an intelligent choice? The inability to do so is a function of population. The more people you have, the more difficult it is. If you’re in a smaller county like McMullen County, where there are maybe 300-400 people, everybody knows the judge who served that county. He probably serves it on circuit, because he has McMullen County and a couple of other counties. But to the extent that you grow as you go from one city to the state or from a small city like Tilden in McMullen county to Houston and Harris County, then you got a problem. We got a million-and-a-half in Houston, two-and-a-half million in the county, 21 cities in Harris County. The people who go in the voting booths don’t know what they’re doing when they start electing judges. My concern has been over making certain that, when people select their judges, they know what they’re doing, or, if they don’t know what they’re doing, that the process would be altered so that we have a procedure by which the selection is made by people who, through some kind of committee or permission process by people who do know who it is they’re looking at. I’ve gotten involved in that controversy from time to time.
F: Your proposed a state system, right?
AJ: Yeah, I served on the Constitutional Revision Commission for the State of Texas, and I served as Vice Chairman of the committee on the judiciary. Leon Jevorsky was the chairman, and he and I worked closely together on some of these concerns. I probably devoted more time to that issue as a part of my responsibility than at any other time in my career. But essentially, the proposal that we worked out, with which I agree, is that we have in Texas a judicial selection commission composed of 11 people, the majority of whom would be non-lawyers, who would make recommendations to the governor where vacancies occurred either because of retirement or because of death or because of removal in the case of some judge who had become incompetent or where new courts were created by the legislature. The commission would meet, and they would submit to the governor a panel of 3 names from which the governor would have to make a selection. The selection would be subject to the advice and consent of the Senate. That judge would be subjected to voter approval or disapproval at the first general election following his selection by the governor. It would be in a context where the voters would not be asked to choose between two different candidates but to decide whether they want to keep this judge or not. If they wanted to keep him, they’d say “retain.” If they wanted to remove him, they’d say “reject.” If he were retained, he’s stay on that job for the next 6 years, and at the end of 6 years, they would, once again, vote to keep him or not to keep him. If he were rejected by the voters at this first general election, then a vacancy would occur, and the commission would fill the vacancy as before. The advantage, of course, in that is obvious. You would have a commission who studied the qualifications and compared them with other applicants and made an intelligent choice. It also would have a tendency to reduce the extent to which politics are involved in the selection of the judiciary. Watergate’s taught us a lot of things, but if it’s taught us anything, it’s taught us how absolutely devastating it can be to associate the size of political gifts with the kind of favors that government can give. We’ve seen what has happened in the executive branch by reason of this kind of process, and we know, perhaps, from Sharpstown what you can do for the legislative branch. 46:00 We know from the Milton cases what’s happening in the case of legislative races and executive races. But the one branch of government where we ought to be absolutely certain that there just isn’t any hanky-panky is with the judiciary. As long as we in Texas have a system that requires judges to run for re-election and face opposition in the polls and to raise money—in my race, we raised over $60,000 in a county-wide race. You raise this money from your customers. I don’t mean by that the people who are going to be litigants, but the lawyers who are going to advocate for them. A lawyer just can’t forget if he gave you $2000 or $1000. Even if he forgets, I don’t forget, you see? I remember. And I sure do find out who gave to my opponent. I don’t know that it does make a difference, but it could. I had some guy appears before me, and he gave $1000 to the guy who ran against me. We just don’t have that nonsense in the judicial branch. We only have one branch where people were selected on the basis of qualifications, who don’t have to continue to go back to the voters for those kind of reasons.
F: I think you’ve also commented on the fact that when you have the runoff in those big situations, it’s caused a slight additional amount of money, as long as you continuing systems.
AJ: That’s right. This’ll give me a chance to talk about my election in 1972. I was appointed by the governor in 1971—actually in ’70, and it became effective January 1, 1971. Of course, in order to continue to serve, I had to run in the Democratic Primary in 1972. I had a good job by all indications. We had done well in terms of number of cases closed. We’d run a very professional court. We’d not been subject to any scandals or anything on that order. But I think many people knew that, historically, we have not had a black person hold a county-wide office, and we’d never had a black person win a county-wide election, especially against a white opponent. These were big question marks that certainly weighed in my line and apparently in the lines of some people in the county who wanted to see what would happen if a black person were opposed by a white person at the polls. I always figured that out of all the 4,000-5,000 lawyers in the county, at least one would just test me, in spite of the fact that I had done what many people view as a 49:14 quality job as a judge in a court of domestic relations. Before the filing deadline in 1972, there were 3 people who filed against me. All 3 of them were white. None of them were very substantial in terms of members of the profession. They were not leaders in the bar. They were not outstanding practitioners in the view of most people. They were marginal types, but there they were. In politics, because the voters are so uninformed when it comes to judicial races, you’ve got to assume the worst. I understand that’s true in every kind of political contest. You’ve got to view the opponent as having the capability of beating you no matter how unqualified he may be or she may be. As you know, after the filing deadline, you get so many more days in which to pay your full fee. By the time the 2nd deadline came around, one of the three opponents dropped out. I am told some of my friends went to this other person and talked him out of the race. They made attempts to do the same with the other 2 people unsuccessfully. I went into the first primary with 2 opponents, both white, in a county-wide race where you have, at that time, 397 precincts, and only 85 of those precincts were predominantly black precincts. So, you see the kind of problem here if this thing becomes a division of black and white. In the first primary, I spent $40,000. Both my opponents spent maybe $2500 between them. We had a professional PR firm. We had billboards all over the county, 100 at least. We were able to afford half-page ads in the newspapers with all kinds of endorsements from the leaders of the bar and from citizens throughout the country. I was the only candidate running for any office—I mean, any office, state or local or federal, if there were any federal offices up at that time—who received the endorsement of both daily newspapers. The reason for that is Bill Lobby, you know, was lieutenant governor. Once he became involved deeply in politics, the Post stopped making endorsements, except they endorsed Bill and they endorsed me. The Chronicle did not endorse Bill Lobby, but they endorsed me. I was the only candidate with both the Chronicle endorsement and the Post’s. I had the endorsement of every newspaper, from the Houston Tribune, which is the most conservative, to the Space City News, which caters to a so-called beatnik or hippy culture. I had the endorsement of all the political groups around the county who endorsed people. There were labor groups, social clubs, political groups that had put themselves together, the professional groups, the lawyers, even the Houston automobile dudes. The Houston Bar Association conducts a poll, where they send a ballot to their membership. They say, “Vote on the following judges. First choice, second choice, third in choice,” in the case of three candidates. In that poll, I received more first-place votes than any of the other 33 or 34 candidates in the judicial office in the whole county.
F: This was unusual, right?
AJ: 53:22 Of course it is. Yeah. All right. What happens the night of the election? We’re having a big campaign party at my campaign headquarters. The first returns have us over 50%. We lost a little ground, and we got a little more than 50%. Both Sunday papers carried us as having won. The Chronicle had us at 51%. The Post had us at 53% or 54% or something, but both over 50%. The fact of the matter was—and I had it reported to me that night—that we had slipped under the 50% margin. As it turned out we had 48.9% of some such number, maybe 49-point-something. But anyway, we were short some 350 votes of avoiding a run off. But we went into a runoff against Herman Mead, who was the guy who was the 2nd place out of the 3. Mead was number 1 on the ballot out of 3. I was number 3 on the ballot out of 3. Or was Mead 1. No, he was number 2. The number 1 guy was Don Powell. He got 34,000 votes at number 1. I forgot what Mead got, but I got voted number 3. And if you know that voter syndrome in a race where you don’t know anybody, you vote for number 1, and then you go to the next race. Okay. So, we go into the runoff against Mead. Mead, by the way, was a guy who had been indicted back by Judge Clement and went to the penitentiary. You ask several people who knew what they were doing, how in the world could they choose between me and Mead, vote for Mead. As a footnote to this, Mead just got elected to the very bench that he ran for where I defeated him in 1972, because he ran against a guy named Hernandez. Those 2 people out of 13 ended up in the runoff, and given a choice between a fellow named Mead and a fellow named Hernandez, the suspicion is if you’re prejudiced against people with the name Hernandez, you will operate so as to favor the person named Mead even though you don’t know either one of them. That’s kind of another story. Right? So, January 1, we’ll have a judge on the bench right here in Harris County who’s been indicted before. For what? For stealing from the estates of dead people in a probate court. Now, that was dismissed. The presumption of innocence being what it is, we got to presume that he was innocent, but I know that if the voters knew that, they wouldn’t have voted for him, unless their feeling toward Hernandez was so strong that they’d take even a Mead who had been indicted for that kind of thing over a Hernandez, who, by the way, is a real quality guy. Okay. We’re going into a runoff against Mead, and I’ve got to raise another $20,000. To make a long story short, I beat him. I had 157,000 votes. I had 67.6% of the vote. I carried—make a note of this—I carried 334 out of 397 precincts in that county-wide race plus the absentee box, which the blacks and the liberals were never supposed to carry. I was also number 1 on the ballot. Whether that’s all due to Jefferson’s race skill is something that I’ll never know, but I’ll tell you, there was a great celebration at Democratic headquarters when I drew the number 1 out of the fish bowl, because it makes a difference. Of course, this time, for this bench, I’m unopposed, and I hope to be unopposed for however long I run for office, because it’s the best way to run. But the other part of that story is that this runoff represented one of the greatest experiences that a 57:45 person can ever have in terms of relations with other people. Remember that only 85 of these 397 precincts are predominantly black. Carol and my court reporter in there maintain the math. We try to assign lawyers to every precinct to pass out these little cards to people who are uninformed and have somebody in the precinct who was talking of our candidacy. I tell you, number one, the money, the $60,000, came from mostly white people. Some black organizations—the doctors, dentists, the lawyers, black people—but most of the money came from the white, legal, some of the philanthropist-type people. That’s a lot of money anywhere. I’ve heard people from some Chicago say that they couldn’t raise it. Because a judgeship’s general, you know? They give the money to the governor and the senator, but if you’re going to have a judgeship, they run out of money to give to anybody. In Pasadena, Pasadena lawyers, you know there are very few black people in Pasadena who live there. Pasadena lawyers, we got their endorsement, and they work for us the last I’ve heard. Deerpark, the North Houston Lawyers Association, Little York, and Tidwell. That’s hard, hard politics. Southwest, the young white lawyers and their wives and families were out there pushing it. Southeast, of course, black people, and the Mexican American Lawyer’s Association—all those people. It was a black and white, young and old, just a great experience, everybody working to get this thing done. It seemed like an enormous expense in terms of energy for something like a judgeship, but we did it. We did what we had to do. I’ll just never forget it as long as I live. I thought it was unnecessary, considering the way we started with everything going for us, but it happened.
F: Is it not traditional that appointed judges, when they are up for election, that next go-around, are generally unopposed in Houston?
AJ: I don’t know what the general rule is. I’d hate to hazard a guess on it, because there have been some judges who get opposition the first time they run. Personally, I think more often than not, they don’t get opposition if they’ve done a good job. Will Stuart’s gone up. He didn’t get opposition. Judge Sondop was up this last time, the first woman district court-level judge in the county. Judge Westwood was defeated this last year. I think that’s it for women. One in and one who was in and will be out January 1. Judge Sodock was unopposed. I’m trying to think of new people. Those are the only 2 I can think of right now. My impression is that most of the time—part of my trouble is, you see, when you’re in the judging and lawyering business, you’re real careful about the empirical status unless you got the data, and you all are too, because that’s the business you’re in. You’re in the business of knowledge. My impression, as impressions go, is that most of the time, once a judge is in and is the incumbent, he does not or she does not get opposition as long as she is doing a good job or a job that doesn’t attract attention in the negative sense.
F: 1:01:41 One of the questions that frequently arises in the criminal courts today is jury selection. Can you tell us about the jury selection?
AJ: Just any kind of jury? Trial juries or grand juries?
F: Grand juries, in particular.
AJ: Of course, you undoubtedly know about the decision I reached in the case involving the selection of members of grand juries. I think the system in Texas in which grand juries are selected is in need of very, very substantial revision. Or, in the absence of revision, the implementation has to be more in terms of including people and not excluding people. Through the years, the grand jury service has been regarded as an exclusive assignment, one of…
AJ: The system we have in Texas is one that requires the district judge to appoint a grand jury commission. The commission consists of not less than 3 and no more than 5 people. The commission, in turn, appoints the members of the grand jury. You end up with 12 people on the grand jury, but the commission starts out by appointing not less than 12, no more than—I’d say, not less than 15, no more than 20, members of the grand jury panel. From that list, you end up with 12, the first 12 that qualify. The district judge, in selecting the commission—not less than 3, not more than 5—many times, will operate on a 100% subjective basis. He will appoint his friends. I’ve appointed my friends. I had 5 people I’ve appointed. I appointed Jay Herberts, a friend of mine with whom I played golf and with whom I share some political beliefs. He happens to be Jewish. I appointed Bob Hinsley, who was a friend of mine with whom I worked when I was a member of the board of directors of Citizens for Good Schools. He’s a young lawyer in town. He happens to be white, and I like him. He’s a friend of mine. I appointed Mrs Lulea Harrison, who is black, who is a woman, who was my English teacher in the 5th grade. I appointed H.R. Goddard, who is black and who is the president of the Harris County Council of Organizations, which is responsible for a lot of politicians being in office and for getting some of them out of office. Then, I appointed John Harrera, who is a lawyer who happens to be Mexican-American, and I like John. They are all friends of mine. That’s the way it works. You’re 100% subjective. Now, I got that kind of cross-section in mine because that’s what I want. I want some blacks, some whites, some brown, and I even got the Jewish influence in there, you see? When they, in turn, put their panel 1:05:00 together, then they have a cross-section. The only way you’re going to have a cross-section on the grand jury is to start off with a cross-section, in my view, on a commission, and the only way to get the cross-section on the commission is for the judge to put it there because he wants it there. It’s 100% subjective. That’s the way it works. The observation through the years, at least in this area, has been—up until about the time I made this decision. If you look at grand juries now in Harris County, I think they’re much more representative than they have been. You might want to take a minute and look at some of them. There’s some sitting now. There are always 3 in Harris County sitting at one time. There are always at least 3. There will be 3 new ones coming on in January or February of next year. The subjectivity of the process is what’s wrong with it. Objectivity is always best. If grand juries were selected in the same way as trial juries are, we’d have a much more balanced grand jury. And except for these unusual occurrences, you would always have some black, some brown, some white, some men, and some women, because if there are more than 50% women in the sample, you’d probably end up with 50% percent of them women, as I understand. You come pretty close to the percentages. I think when we get these jury panels from time to time…
The last words I said were “time to time,” but I can’t remember what the subject was. If we selected our grand juries at random in an objective manner, making certain that the pool of names were taken from a source that included all of the people in the community, we wouldn’t have any real problem with that grand jury system. But Greg Washington, who’s in the House of Representatives of the State of Texas, has a bill that he’s going to offer in January to revise the system and to make it more objective. I’ll be watching that with some interest.
F: This was a reaction from a legislature to your decision. Can you tell us about some of the reactions from the community, other colleagues, in terms of—
AJ: There were a lot of letters to the editor, most of which were complimentary. One or two were not complimentary. Had a lot of letters from the penitentiaries. I got a letter even today from someone who wanted a copy of the decision. A lot of word of mouth that passes between lawyers, other judges, and myself, most of which were complimentary. Some people said, “Why did you dismiss the indictments on people who were not Mexican Americans?” The answer to that question is because the law says that you don’t have to be a member of the group that has been excluded to claim your right to a grand jury consisting of a broad cross-section of the identifiable and significant racial groups in 1:08:42 the community or economic groups in the community. There’s a precise decision on the issue by the Supreme Court of the United States that says even a white person can complain successfully when black people are being excluded from the grand jury. I guess I’ve received awards from the Chicano portion of the Mexican American community. There’s a dinner coming up that is sponsored by the Lulac portion of the Mexican American community. The Jewish community has given me their Antidefamation League, which is—Antidefemation League National Torch of Liberty award, and the black community has something planned on January 23, due in part to this decision. Many people have read the report that appeared in the Houston Post about 3 weeks ago, on which someone has done a study. Dr Carp from the University of Houston has done an elaborate study of the grand jury selection process in which his conclusions seem to vindicate my decision. The reading public sees that, and they see that as an endorsement of my views. The fact of the matter is that Dr Carp testified for the accused in the case. His views are no surprise to me, but his views represent only part of the case. They’re not the law, and they’re only part of the facts. But most of the reaction has been positive in terms of the people’s reaction to something that has happened. For my part, the court had no choice but to follow the law. The facts were that, in the particular court which the grand jury returned the indictment, there had been only 3 Mexican American commissioners for the last 10 years, and then, there had never been a Mexican American commissioner. For 3 years, next preceding the return of the indictment, there had only been 1 Mexican American on a grand jury. On the particular grand jury which returned the indictment, there were no Mexican Americans in a community where there is between 11% and 16% Mexican American population. When you read the Supreme Court decision in Hernandez vs Texas, which is 20 years old, and it started against West Virginia, which was decided in 1880. Hence the law has been for a long, long time, and the court didn’t have any choice but to follow the law. Some students at South Texas Law School one day asked me what was the philosophical basis for my judgment. I said, “The philosophical basis was that I’m a judge, and a judge’s obligation is to follow the law. Now, what’s your next question.” And the law was… They thought there was something squirrely here that had no basis except in my own, personal moral code or a Jeffersonian philosophy of some kind.
F: I think we’ve mentioned the response from the community to broaden the legislature and the general community. District Attorney, Carol Vance, has this sort of viewpoint. Do you care to comment on it in relationship to your decision?
AJ: Part of the trouble a judge has is that he can’t enter public debate. Part of the fascination of this session we’re having here is that it’s private. It’s being preserved for the future. It’s not being published in the newspaper or appear on television. It will be put in some archives somewhere and will be unearthed at some time in the future or at least analyzed by some researcher sometime. Advocates are the lawyers who appear before the court and make arguments for either side. The DA is such a person. He represents the State of Texas. The defense lawyer, of course, represents the defense. In that particular case,
Mr Vance was quoted widely with respect to his views. I never saw much in the newspaper from the other advocate. The leading lawyer was a fellow named Cameron Cunningham from Austin. 1:13:39 Radio stations carried comments from some of the defendants themselves, and perhaps one or two carried comments from Mr Cunninham. But a judge, you see, doesn’t enter public debates. It’s not ethical for him to do so. As a consequence, Mr Vance was essentially taking advantage of the court. I have doubts with respect to the ethical consequence of the statements attributed to Mr Vance in the newspapers, suffice it to say that I don’t agree with all of them. If I weren’t an African, I would have and could have done with all the statements he made. His statements showed, essentially, that he didn’t know what the law of the case was. This was no surprise, since he didn’t try the case. He didn’t prepare the brief nor had he heard the legal arguments in the case. I have serious doubts as to whether he read the briefs filed by the other party in the case. If he had and if he can read, he would have known that the court decided the case properly. Or, if he had asked for the prosecutor who was assigned to the case and tried the case, was the court probably reached the right result on the law. I suspect he would have gotten an answer that the court did. Since that time, these people have been reindicted 3 times. Each time, the state has corrected some mistake in the indictment in my court. The case will probably be tried sometime next year. I’m still under the same kind of restraints regarding the extent to which I can become involved in public debate. Many radio and TV people have called about this subject, and they want to have a session on it. I’ve told them that when the case is closed, perhaps we can discuss it as a matter of legal theory. With respect to the case, it’s already been handled by the court.
F: I think you had mentioned that judges have over putting people on the grand jury. Could you tell us if they have any influence on the investigation of any nature?
AJ: To the extent that anything is possible, yes. For example, there’s nothing to keep a judge from calling his foreman in and suggesting an area of inquiry or appearing before the grand jury on any particular day when they’re in session and making a statement to them regarding some possible area of inquiry. I have doubts as to whether that would be proper in the absence of, maybe, a written statement that the judge has received regarding the matter. From time to time, a judge will receive a letter from a person addressed to the grand jury foreman or to the grand jury in care of the judge. The judge’s function at that point is to simply refer to the letter without even opening it to the grand jury, because the judge, even though the judge is involved in the appointment of the grand jurors, is still a member of the judicial branch of the government. He’s not a member of the executive branch, which is charged with the enforcement of the law. He’s the law interpreter. He’s not a law enforcement officer in the true sense of that term at all. If he becomes the arm of the prosecution, he’s about disqualified himself, it seems to be. In absence of extraordinary circumstances, a judge would not and should not involve himself in suggesting to define for the jury areas in which it ought to be investigating.
F: Let’s move to another area now. In your opinion, do the police generally respect the rights of suspects, and has the Miranda decision had a profound effect on police investigations?
AJ: Now, you’re asking me a question that requires me to do a couple of things. In my judicial capacity—and the only way I can respond to that question is say that, in a given case where the facts are presented to the judge, I have to decide whether the requirements of the Miranda against Arizona have been satisfied or not, and if the court says that they have not, then suppress the confession. I have not heard enough cases so that I’m able to give you some kind of a trend, because cases are all different. Every one has to be decided on its own things, and the law has to be applied to one case to the next, depending on what the facts are in that case. I do not mean that to suggest that I feel that there is no police brutality in the community or that policemen are all following the law, as announced in the decision of Miranda against Arizona, but as a judge, you see, the cases come to the judge case by case on their own facts. I just don’t see a trend.
F: 1:19:24 In a recent comment, you stated that courts should stop handing out light sentences to blacks in hate crimes against each other. Would you comment on this? It was quite recent.
AJ: I sure hope that wasn’t the quotation that appeared in the papers, but it wouldn’t surprise me if it did.
F: Yes, it was.
AJ: I’ll give you one guess as to who generated that, probably Houston News Service, because I was interviewed by them afterwards. Courts shouldn’t make a difference based on race. There are a lot of people who have observed the criminal justice system, who have decided in their own minds that there is a disparity between the kinds of sentences that black defendants get once they’re convicted, where the victim is also black and those cases where the defendant who’s been convicted is black and the victim is white. In the course of commenting on some of my views…
AJ: What was I commenting on?
F: You were commenting sentencing for blacks.
AJ: I just outlined what the problem is. Somebody asked me in that interview whether I thought judges made a difference. 1:21:03 I said I have not undertaken a survey of the courts, and I’m in no position to say that they do or do not. I can tell you that this was an issue at one time and that leaders in the black community felt so strongly about it that they approached the DA back in the administration of Frank Brisco. As a result, Brisco undertook a more vigorous prosecution of cases where the defendant and the victim were both black. As a matter of DA’s policy at this time, there is no difference. Then, somebody was there from the Chronicle who said, “What are your feelings about the way black people feel now?” And I said, “I’m a judge. I’m not in the business of predicting how people stated my feelings about how somebody else might feel, except to say that this was a problem in the past. It can be documented.” But I don’t think it’s the same problem of the same magnitude it once was. Certainly, I’m in no position to say that judges do or juries do, as a matter of fact, make a difference. That’s where that comment came. That’s why I’m so cautious about the damn papers.
LM: I know you have an appointment with the—
AJ: But I feel pretty good, though, about the fact that nobody’s written me about this. I generally get all kinds of flak by these kinds of newspaper stories.
LM: I know you have an appointment with the mayor, judge. I don’t want you to be late. I hope we can continue this session in the near future. For now, I want to thank you for participating in the program, and we look forward to seeing you again.
AJ: Okay. Good visit.
F: 1:23:09 Last time, we spent of our time talking about your career in the criminal court. This afternoon, we would like to speak to your time in the domestic relations court. Was your serving on the bench of the domestic relations court a battle for separation for your work in the criminal court in your opinion?
AJ: I think so. I think any judicial assignment prepares a lawyer for a better service on some other bench or with some other document. You need to refine your judicial temperament. I can’t imagine a better document for testing your limits than the family court, where you’re dealing with a lot of real emotional problems. Yes, I think it helps in a general way.
F: What were the most public type of cases that came into your court during this time?
AJ: Of course, the court is a divorce court. Any time a husband or a wife file a petition for divorce, there are a number of issues that the court may ultimately have to decide, the first being the question of whether there are grounds for the divorce and whether the divorce will divide their children. The court, in many of these cases, would have to decide who gets custody of the children. Then, the divorce court has to decide how the property should be divided. In cases where there are children, in addition to the custody question, the court has to decide who pays child support and how much. It has to decide the visitation rights, and ultimately, the court will, in many cases, have to fix the attorney’s fees and determine in some cases who should pay the cost of the court. Of course, there are the contract situations where the court has to consider the law of the case as it relates to the proper classification of property as separate property or community property and then make a determination as to how the property should be divided.
F: While in the domestic relations court, did you see many men file for custody of children? Can you tell us something about that?
AJ: Yes, there were numerous cases in which men asked for custody of their children. That’s the kind of question I have been asked many times before. I’ve never really searched the data to be sure of the percentages in law. Suffice it to say, there were a considerable number of cases where men asked for and were awarded custody of their children.
F: Do you have any particular feelings about this attitude?
AJ: No, not necessarily, but the court’s concern on that question is the suitability of either parent or both parents as to the custody of the children. In either case, where the father happens to be the better custodian, then the court shouldn’t hesitate to award custody to the father in those circumstances. I’ve made such orders on several occasions. There are a number of presumptions that work in this custody area that operate for the benefit of the mother. One is on occasions where you have children of tender age, babies and children that are preschool age. The presumption is that the mother is better suited to take care of those children, but that’s a presumption only, and it can be overcome with evidence.
F: She’s not.
AJ: …suited to take care of the child, if the father is a better custodian.
F: Was there anything in particular about your court that was unique in handling in these cases? These are particular things that…
AJ: Not especially. I wouldn’t be in a position for us to evaluate it on a comparative basis. The lawyers that have been more involved in domestic relations might have some idea about that. I just tried to do the best I could. I heard the evidence of both sides on custody matters and visitation. As a judge, I did what I felt what was best under the circumstances. I don’t think I had an extraordinary, innovative approach to the handling of these cases.
F: Judge, what are your attitudes and impositions on the acceptability of confessions as evidence in the court?
AJ: 1:28:20 Confessions are proper evidence in a trial of a criminal case. The problem with confessions is that they have to be taken according to precise rules. My attitude on that is that the rules must be followed to the core before confessions are admitted as evidence. The rules are to be followed, not broken. They’re not like records in the athletic sense, where the records are made to be broken. These are rules and the law of the land and should be followed.
F: What has been your experience of how these confessions—do they appear to have been given voluntarily without coercion?
AJ: Every case is different. Of course, our obligation in a case where a motion to suppress a confession is filed is just to hear the evidence and consider the evidence in light of the law of the case and decide whether or not the confession should be admitted. There is no general trend.
F: Did you anticipate the response when you continued to broaden your position on confessions as evidence in a different case? One of the reasons is…
AJ: Any time a judge reaches a decision that has the arguable effect of making the prosecutor’s job more difficult in a case that has been sensationalized by the press, a judge should anticipate that his actions will be misunderstood. A judge can only hope that members of the community will know what it means to be an American, what it means to have a Constitution that says you don’t have to make him state a denial. You don’t allow it, except if he voluntarily incriminates himself. That’s what the 3rd amendment’s all about. The 3rd amendment applies to the states and to the 14th amendment of the Constitution. People in the communities have been flexible on what it means to have a right to counsel and rules that require that he is advised of his right to counsel before a confession given by such person is admitted.
F: 1:30:50 Have you found the police officers to be effective in the court?
AJ: I think most of the cases that are tried in this court are tried for juries, so it’s for the people to decide which differences they believe. In most cases, the jurors believe the police officers. The police officers are people like other people in the way they come into court. They raise their right hand. They’re sworn in. They swear to tell the truth. They get on the witness stand. The prosecutor asks them questions. The defense counsel asks them questions. The jury then decides, based on what they’ve heard from that witness and what they heard from other witnesses, just which witnesses to believe. In most of the cases, the verdict was guilty.
F: Have you had very much experience with allegations of court abuses?
AJ: Not that much. Occasionally, when we try a lawsuit, it will eventually come up. It won’t come up where brutality is concerned. It will come up as a criminal matter, and as such, it will be cases where the person is charged with murder and the question of admissibility of the confession was an issue and the officer beating the confession out of them. We had a case the other day where the guy was arrested in a case where he was accused of stealing some property from a lady by snatching it out of her hand and running with it. He said that after the police officers arrested him, instead of taking him directly to the police station, they took him to an isolated area of the community and proceeded to beat him. He wasn’t charged with that. The policeman wasn’t charged with that. It really wouldn’t have been necessary for the jury to decide whether he had, in fact, been a victim of police brutality in order to decide whether or not he had taken the package out of the woman’s hand. That’s the way that probably that would come up in this court.
F: 1:33:15 Can you tell us something about the quality of a court-appointed attorney in the criminal court of appeals?
AJ: Yeah. This is a problem area. Most of the judges will appoint a young, inexperienced lawyer to represent the defendant in an uncomplicated criminal case, such as an auto-theft case or the burglary of a building, not a residence. But any time you have someone who lacks experience, you got a problem. You got just a boy who is inexperienced and always makes mistakes. You wish you had a better system. The experienced lawyers are afforded the more serious cases—capital murder cases, for example—that would have a very experienced lawyer and a good lawyer, who is also a young lawyer… We had good lawyers over the years, but the more experienced lawyers worked together with the less experienced lawyers. That’s the way that kind of thing has happened. We have kind of a specialist to handle appeals in which he was in a court of criminal appeals. The system has problems. It may be that we should spend time reviewing the question of whether Harris County should have gone with a public defender program. Once you get into it, you’re talking about the financing of it. The county spends several hundreds of thousands of dollars a year paying court-appointed lawyers to represent people who cannot afford their own counsel. It may well be that that amount of money is a sufficient amount of money to finance a public-defender program. I asked him about that issue some time ago. He was a reporter from some place, and he seemed surprised when I appeared sympathetic to the public-defender program. One of the ways that I tried to get him to understand how serious the matter is was to ask him how he would feel every time he had to prosecute a defendant in a murder case or rape case, we appointed some lawyer from the community to do it. There is an advantage in having a staff of prosecutors who keep up with the law and get their prosecutor skills sharpened, representing the public interest in brutality cases.
F: Can you tell us something about how these court-appointed attorneys make themselves known, so that they are—
AJ: A lawyer who passed the bar exam will buy an office somewhere. Many times, he is associated with 2-3 other lawyers. He’ll have his cards printed up. Then, he’ll make the rounds. He’ll come to my court. He’ll go to Judge Walker. He’ll go to Judge Price. He’ll go all over the courthouse. He’ll walk in and shake hands with the judge and say, “Judge, I am so-and-so. Here’s my card. I would appreciate it if you would consider me for a possible appointment in criminal cases.” They’ll go to criminal courts. They’ll go to domestic relations courts or civil district judges sometimes. They’ll go to county courts of law and JV courts. Their cards will be all over the place. I have not learned to say no to any young lawyer who says, “Put me on the list.” I’ll put him on the list. We have them alphabetized, and that’s the way it works. We go through As and go to Zs. I don’t know how many lawyers we have on that list now, but that’s the way it works, and that’s the way they get on the list.
LM: Is there a way you can find out more about them? Do they give you a summary of their qualifications
AJ: You see, I got to rely, to some extent, on the quality of the law schools that are educating the lawyers and the bar exam that determines whether or not they possess the basic skills to be a lawyer in this state. They got a law license. They’ve at least found a court, and they must have learned something. Until the contrary appears to be true, then I assume that they have at least the basic lawyering skills at handling criminal cases. Sometimes, I discover that I made a mistake. Then, I have to take that lawyer off the list.
F: 1:38:25 Is it possible today for a person from a low-income group, as opposed to one from an upper income group who can afford to pay legal counsel, to get a fair trial?
AJ: Sure, sure. He’s not going to get superior representation, but that costs a whole lot of money. Unless in cases of the capital murder cases I was telling you about, where the offense that has been committed was so seriously and the person can’t afford his own counsel, then the court feels an enormous obligation to make certain that that person has some of the best legal talent in the community. On the average, a person who is poor can get an adequate legal representation. The more difficult question is whether they are entitled to a lawyer or not. Is everybody entitled to the best legal representation available? That’s the question someone might ask. There are cases on the books that would tend to prohibit a court from committing a lawyer who was incompetent to represent a client in a criminal case. But if there is incompetency, it’s kind of a nebulous concept. The cases say that before a lawyer is found to be incompetent, the trial must be a hypocrisy or a farce—a mockery of justice or a farce. You don’t see trials like that, but there’s still some.
F: 1:40:15 Let’s go into another area now. To what extent does the judge make laws and establish policies?
LM: Let me go back to the other thing. The question you asked me, the biggest question, is also an invitation to comment on something that we think is basic in our society, and that basic concept is that everybody wants justice. That ain’t so. One of the federal practitioners around here has a little saying, my clients are not seeking justice. Here, you got another thing: don’t give me justice; give me mercy. You see? But all of them want some minimum floor utterance and don’t want any juice. You don’t want to be seated out there, but yes, the question of whether they get adequate counsel. Yeah. But if some defendants can get off for a technicality that can be exploited by the best legal minds, why can’t everybody get off on that same basis? But when a defendant is guilty and is convicted on the basis of adequate evidence, sometimes he is not too sure that’s justice at all, and if it is, that’s not what he wants. Most people, they want to get home. But the minimum standard is that they should never be convicted except as a result of a fair trial or evidence that is deemed to be admitted is admitted and that which should not be is not admitted, and unfair evidence is not taken by the prosecution. That’s all on that.
F: Back to judges involved in making policies and perhaps making laws…
AJ: Of course, judges shouldn’t make law. They’re not policy makers, legislators. The judiciary clarifies to the government. Our job is to interpret laws and to apply the law. The trouble is when you get into an area where, in the name of interpretation, you are accused of legislating. This happened to someone else at the entire level of the system or who is more perceptive to decide whether a judge from case-to-case makes law. An interesting area that I discussed the last time is my decision that I made on the grand jury question, that I dismissed those indictments. There are a lot of people in this community who feel that old Jefferson made law. If I get a chance to tell them what the situation is, then they would understand and would believe me. I remember clearly a law student of South Texas asked me what my philosophy was. I told her it was my philosophy that judges ought to follow the law. The facts of the matter concerned an identifiable group since 1880 that the grand jury should consist of a fair cross-section of the community. But I didn’t make any law. I applied the law that had been designed by the Supreme Court a long time ago. So, the question of whether judges make law is really an arrogant proposal.
F: I’d like you, judge, to explore the establishment policy. You said that they’re not policy makers, but do they not ignore policies on some of their decisions?
AJ: Yeah. Decisions that a court makes may impart to legislature to change the law. That certainly has happened.
F: Can you give me a particular example?
AJ: Sure. Bussing gives an excellent example. The court started using bussing as a tool to achieve desegregation. Congressmen changed the law. Now, bussing is a tool for racial balance. There are other areas I can’t comment on. I know when legislators get a case postponed. The Supreme Court of Texas reached a decision some several years ago that said that wasn’t true in all cases, and the legislators went back and changed it in order to tighten it up. I got a case up there now that’s going to submitted to court next week on the question. It’s still not clear that the area applies to all case under all circumstances. They’re going to clarify it still further.
F: Is it in your opinion that judges should not enter the policy making area?
AJ: 1:45:29 Not directly, no. Judges are not there to say the law, which is a reflection of policy, should be different than what it is. That’s none of the judge’s business. Not only is he on that bench with a black robe on, his job is to ascertain what is the law, not what it should be. Maybe, if there had been some lecture series somewhere in law school or in the privacy of his own home, he may discuss, but not a judicial setting, what the law should be.
F: Today, the attorney-client privilege is very accepted by the court. Are there any other similar relationships that you think should also have a space today in court that do not?
AJ: Of course, the present electorate, which is one we have to be comfortable with. We’ve come to a position based on this kind of nebulous concept.
F: What is your position on the admissibility of evidence secured by wiretapping?
AJ: My position is that the law should be followed. The law is that evidence obtained by wiretaps may only be admissible if gotten under the authorization of a federal court.
F: What about use of undercover agents to infiltrate…?
AJ: 1:47:23 Once again, the law ought to be followed. The Supreme Court of the United States ruled a long time again in a case called Roviaro against the United States, and there was another several years ago, an Illinois case, involving informants. Informants are essential in ferreting out criminal activity. There’s a lot of criminal activity and a lot of people who violate the law that would go undetected and unpunished if there were not covert involvements. There are people who are disguised, the various people in the underworld, and people in law enforcement have a great respect for them, because nobody really loves a snitch or a stool pigeon, but the police have just got to have these people. A police officer can’t do it. He’ll be just a dead giveaway if he tries to go in on a regular basis. They have undercover agents who work fairly well, but they can’t hope to do the kind of job that a nonofficial kind of informant can do, because he’s a member of the group. He’s a confidante. He gets all kinds of secrets that police officers would never get. They’re essential. They provide the basis for search warrants and arrests.
F: Since you are a fair judge in the area, you have received numerous outstanding awards. Are there any particular ones that stand out for you?
AJ: Yeah. Firstly, I guess, when I was in the Department of Justice, I received an award in 1967. It was just the recognition of a lot of hard work and dedicated service. I was part of the testimonial that we had last week that was given by 11 or 12 organizations in the black community who combined their resources and cooperated to sponsor this area. It was the best I experienced. My wife and I still have recollection of that event. The award by the Antidefamation League, of course, was special. They have some other people giving out awards, and I hope that never changes.
F: How has your success affected your relations with the black community?
AJ: That’s something I could guess about. I don’t go around asking, “What do you think of me?” Of course, the testimonial, you see, is an indicator. The Houston Lawyers Association was one. It is an organization of black lawyers in Houston. I belong to that organization and have for a long time, and I get along fine with the fellows. Of course, I spend a lot of time on both sides of the track, so to speak. It really drains your resources, because you’re worried about life where you live and where you work. But I live on one side of the track, and I work on the other side. It requires me to make some professional frat brothers and black lawyers and white lawyers and to establish with people in the black community all over.
F: My final question has to do with what (background noise) from the court? You were talking about topology reform.
AJ: They are the kinds of things I worked on. I’m still convinced that we have to change the way we select judges. I don’t mean all judges. Electing judges and then expecting them to make judicial decisions on the bench on the basis of what the facts are and what the law is without any concern for the political consequences is a joke. What happens so many times is a judge will know what the law requires, but in terms of the politics, in that sense, he is concerned with whether or not his decision will be popular, even though it’s illegal. He is concerned with whether it is popular and whether it will result in him getting elected or getting defeated. I am going to have a system that de-emphasizes the political side of judging. There are a couple of ways of doing that. The American Bar Association back in the early 1900s came up with a program that’s been adopted in such states as Missouri. It came to be known as the Missouri Plan, where judges are appointed by commission and are subject to retention or rejection every so often, say, every 4 years or every 6 years. 1:53:50 The voters vote on the question on whether you want to retain a judge or remove him depending on what kind of a record he had. The value that system has is that, with a judicial selection commission to sit down and select a judge on the basis of his qualifications, less emphasis will be put on his political affiliation. To the extent that a better informed group of people make that decision, we will improve the method of selection because, as you probably know, people know very little about judicial candidates. Normally, they are controversial. People in the community won’t know who the judges are, and when they see their names on the ballot, their votes are based on something other than directly to that candidate or the qualifications of that candidate. In a democracy, we just ought to have a better way of selecting public officials. You ought to at least know what you’re doing. In Texas, we’ve got we’ve got a package that we put together on the Constitutional Relations Commission and that did not come out of a constitutional provision or an election. It never was fixed, because it has political problems in the sense that Texas decided to let its legislature write the constitution. There’s 181 politicians in the legislature, and they’re not about drop politics. Those people are very likely to misunderstand a system by which you have appointed judges. I think salaries ought to be improved. I think the political structure of the courthouse ought to be improved. I’m real concerned that we ought to be doing something about this public defender thing. I think we spend time gathering programs that have worked mostly in the country. I know a public defender in the system who has just been inaugurated, and I hope that people in the legal arena will be looking at that program. The state court says it worked, but not in the federal courts. The big problem there is people aren’t really too sure they want a criminal justice system that guarantees 1:57:05 justice of the criminally accused. We’re not willing to go all the way with making certain that everybody has the same quality of representation. Certainly, the system we have now has a lot of problems with it, because I shouldn’t have to appoint lawyers on a kind of luck-of-the-draw basis. I want to know what I am doing. That’s the problem. I don’t have any other projects. I know that we’re in a period where the county government is having real serious financial difficulties in terms of not having enough money to do all the things that need to be done. For the past several years, the federal funds have been spent in Harris County on a number of programs that assist the court in doing that. For example, each one of the district judges who find criminal cases will have acknowledged one of the county courts of law. They will have a court coordinator who is responsible for the administrative work that has to be done. Setting the cases, notifying the lawyers, making certain that they are here when they are supposed to be here, and just generally keeping the operation moving in a smooth way. This program is in jeopardy, because it is funded by federal funds that are allocated by the Federal Justice Council. In the last year, with the grant, the commissioner’s court has said that it’s not going to be picked up by the county. I can’t imagine courts without a court coordinator, but we’re facing the prospect of not having a court coordinator. I think that is a very important thing, persuading the commissioner. Of course, if you find the money somewhere, you continue to operate the program. There’s another project. We have a pretrial release agency in Harris County. That is an operation that is confusing some people. It’s under attack by professional bondsmen. Not too long ago, the commissioner’s court handed an advisement a motion to abolish the program. This is a program that really assists the courts in deciding which people should be released on their own without having to pay their bonds to get them out of jail. Basically, anybody who is no risk, who has no risk in the community, who has no past criminal record in terms of relations, that’s someone the community is the most for, him or her. He has a job waiting, perhaps, against whom the evidence may not be too overwhelming, or if it’s overwhelming, it’s the kind of case that doesn’t represent a serious threat to the community. Such person ought to be eligible to at be released under his or her own law. If you don’t release such people, you’ll have a jailhouse that’s filled with X number of people, with X plus 300. The community has a serious problem in that respect. In terms of Austin, they don’t like the program, because they say, “We don’t mind the court releasing people who are poor, but if you got somebody who can pay his own way, we want to get those fees, because we’re in there to make money.” And the courts say, “Look, that’s not the question really. The question is whether or not these people are at-risk to be released without breaking the law.” This goes on and on, and I just hope that the next court doesn’t delay these arguments or overlook their real importance of the continuance programs. That’s about it. I don’t have it all on the list, but those things that need to be done, need to be done.
F: I’m going to ask you one question that really—and it’s controversial, so feel free to be very frank—can you respond to the increase of women in the field of law as lawyers practicing in your court, where is your opinion is on equality and any other comment?
AJ: 2:02:12 We got women, like other practitioners. As a group, there’s some good ones and some not so good. Some are better trial lawyers than others, and there’s some that shouldn’t be in it. That’s true with men lawyers and with women lawyers. I don’t have any objection to that. It’s too late in the day to start getting hung up on that. If they got the smarts to get into a law school and to pass the bar exam, then more power to them. Love them. But they have to learn like the rest of the lawyers have to learn. They are young. They learn by experience. They serve the best interest of their client, and that’s what it’s all about. There are some super-great women lawyers in this county, and then there’s not.
LM: I have a few questions that came into my mind during the course of the interview, and I also have a last couple of questions regarding the emotional commitment made by a judge as he sits on the bench trying cases. One of the questions I’d like to ask you goes back to some of the legal aspects of being a judge. Plea bargaining—how do you regard that? Is it useful or is it a hindrance or an injustice?
[end of 081_01] 123:50
AJ: Plea bargaining that is unacceptable is the plea bargaining that results in an innocent person entering a plea of guilty just to get it over with or because he’s been in jail, say,
5-6 months, and the prosecutor is recommending that he be released on the basis of his time served so that he’s a free man, even though he said, “Help me. I’m a young man. I didn’t do it. I can’t plead guilty to something I didn’t do.” The kind of people are arguing who are their defense lawyer would say, “Look, the judge is going to ask you are you pleading guilty because you are guilty? Now, you told me that you’re not guilty, but you can’t tell that judge that, because if you do, he won’t take this plea of guilty, the prosecutor won’t make this recommendation, and you won’t be released. You’ll have to stand trial, and trial means another 3-4 months waiting for a jury trial, because there’s a long list of people who want jury trials.” That legal argument is bad. We probably should modify the rules to require that the bargain be disposed in full and for the record. The court probably should ask the defendant, “What’s the deal? Have you all been negotiating? If so, what agreement have you reached?” The defense lawyer, possibly, will say, “Your honor, we have been negotiating, and here is the deal. He’s charged with burglary and habitation, a 1st-degree felony in Texas carrying a penalty for 5-99 years or life. The prosecutor’s going to reduce that charge, with the court’s approval, to ordinary burglary of a building, minimal habitation, 2nd degree felony, 2-20 years, a $10,000 fine. Given the defendant’s past record, we’re going to recommend that he be required to serve 5 years in the state penitentiary, and that he be given credit for all the time he’s been in jail.” This defense lawyer is bargaining this and that. Unless the court sees something wrong with it or unless I determine that in some way this arrangement doesn’t serve any justice, I will approve it. If I reach a point where I’m not going to approve it, I’ll tell you. Then, I’ll let the defendant withdraw his plead guilty or not guilty. We don’t do it that way. I know, in every case where the prosecutor says “I recommend probation” or “I recommend a certain sentence” that they talk, and that that’s the deal. I see them in the hallway whispering. They’re writing down numbers. Our law provides that the court has got to ask a number of questions in taking a plea of guilty. One of those questions is, “Have you been promised anything?” Every now and then, a defendant, bless his heart, will say, “Yes, I’ve been promised something. They promised 2 years if I plead guilty.” When that happens, it shocks everybody in the courtroom, but it doesn’t bother me, because I deal with that. I say, “Well, you understand that is what the possible punishment, and this recommendation is not binding on the court. You know what you could get, 2-10 years or 2-20 years, even though you’ve been lead to believe the prosecutor will make that recommendation to the court. That’s what the arrangement is. Nobody’s told you that the judge would say he’s going to give you two. You don’t know what the judge is going to do. That’s right. You’ve been told that the prosecutor will recommend that.” And he says, “That’s right.” “Now, in spite of that, are you still pleading guilty because you are guilty? In spite of this promise on the part of the prosecutor that he will recommend this to you, do you still enter this plea voluntarily and of your own free will?” And, of course, he gives an answer to it. We still have a problem with that, because one of the things, the problem in his plea, is the promise that the prosecutor will recommend 2 years and hope that he will get 2 years. I said, “We don’t have it quite that way, but that isn’t really consistent with what the practice is.” Plea bargaining. There’s not a lot of plea bargaining. They just stand trial. Another way of doing it is have the judge as party to the bargaining. I don’t want that part. I like the idea of the middle ground to have them recite the bargain and having the court say, “All right. Unless I find something that says to me that I shouldn’t approve it, then I’ll approve it. If I decide not to, I’m telling you to withdraw your plea of guilty.”
LM: Another question I’d like to devote a little attention to is the situation where a judge is confronted with what he considers to be a bad verdict by a jury, perhaps demanding that 05:31 the defendant didn’t have adequate defense. What does a judge do to mitigate that kind of situation? Can he do anything?
AJ: To that, I’d say, you know, if I were practicing law again, I’d sure love that defense. But in a case where the man is hired by the lawyer and if the defense has been adequate—it hasn’t been super, but it’s been adequate in terms of not being incompetent—there’s not a whole lot the court can do about it. Even an incompetent counsel problem is kind of an exotic problem to deal with, because the lawyer who represented him is not going to raise that question. A friend of mine who represented a defendant in a federal criminal case a couple of weeks ago did raise that question. He filed a motion for a new trial in which he said, “The defendant had inadequate counsel, namely me.” I suppose that’s extraordinary, but this is an extraordinary guy. He was a civil practitioner. He used to be a state prosecutor, but he doesn’t prosecute anymore. He’s in private practice, but he doesn’t have any criminal cases on the record list. But he’s a good lawyer. Unless he’s just really bad that the lawyer is incompetent, there’s not a whole lot the court can do. If they’re convicted, in most of the cases, the jury determines guilt or innocence, and the jury also determines the amount of punishment they get. In Texas, we don’t have a system of the judge to lets the judge reduce the sentence after the jury has assessed a sentence. What has to happen is that a motion for a new trial has to be filed. You delay the whole thing and then indict into a new trial. One of them is that he had incompetent counseling. You got to get another lawyer in a case before that can happen. The law is that the evidence was insufficient. That is not a function, you see, of incompetent counseling. But is it insufficient, yes, it’s insufficient. That may be evidential incompetency on the part of the prosecutor who fails to submit sufficient evidence or on the part of the police officers who fail to uncover sufficient evidence or they leave evidence that the defendant was innocent. That’s all there was to it, and they didn’t have enough evidence to prove he’s guilty, because there isn’t any guilt. It also may be a recognition that he covered his tracks well and didn’t leave any evidence behind. But seldom is mottled evidence an approximation of incompetent counsel. There might be a lot of unofficial evidence that gets in the record because the lawyer didn’t counsel, and that may have affected the outcome of the trial. So, the court has to look at the admissible evidence to determine whether it was sufficient or not. Now, there are some cases where the defendant exercises his right to have the judge assess the sentence in the first place. There are two parts to our trials. The first part, either the judge or the jury will decide guilt or innocence, but before that can happen, the court judge can try the case to determine guilt or innocence, the prosecutor has to agree and approve of the waiver of trial by jury. Unless the prosecutor agrees, the jury has to try that issue. But when he comes to punishment, the defendant has the absolute right to decide whether the judge or the jury assess punishment. Where the 09:34 defendant decides that the judge shall assess punishment, then it’s the judge who assesses punishment. I suppose, in that context, a judge could say, “This poor devil’s had such poor defense that I’m just going to make things light on him and give him, say, a minimum sentence,” because he doesn’t think he got a fair trial. I suppose that the court could do that, not to say a court should.
LM: Has it been your experience—what has been your experience with regard to whether judges can be more lenient with sentencing or juries?
AJ: I don’t know. It all depends on the judge. I suppose I’m more lenient than the average jury would be, and I suppose the prosecutors would all agree with that. I’m saying that because I think that’s a good thing. Yeah. But I don’t know how other judges would compare their sentences with the sentences of the juries.
LM: Is the judge exposed to public pressure in certain types of crimes?
AJ: Because he is a county official, and the sensational cases are—the newspaper people are there. They’re writing stories everyday about the trial, the case, about the rulings of the judge, and the effect of those rulings on the outcome of the trial, or possible outcome of the trial. He’s a political animal after all. He wants to be loved by everybody who votes. He doesn’t care a lot about folks in the community who don’t vote. So, he’s sensitive when it comes to his rulings and the fact that they’re going to be publicized. There’s a whole concern of what the voters are going to think when it comes time to vote on him.
LM: I think you’ve handled this type of situation.
AJ: That’s the measure of a man or a woman—do your job in spite of that. That’s what it comes down to. It doesn’t mean you don’t think about it. To some, it makes a difference. To others, it doesn’t make a difference. That’s what it’s all about.
LM: How important is court ritual—the black robe, standing—is this a conscious ritual or is it tradition?
AJ: It’s a combination of all those things. It’s real important to me. I just think that we ought to do all we can to enforce respect for many of our institutions in our society, especially the courts. I think that tends to foster respect to the court or the institution aside from the man or the woman. I think the standing up when the judge comes up, standing up when he speaks to the judge. I remember asking a lady to stand up, because we shouldn’t encourage that kind of informality. We had a fellow the other day who didn’t have a lawyer, and I was asking him some questions in order to ascertain whether he could afford his own counsel or whether I should appoint a lawyer to represent him. This was a fellow who couldn’t. He was in some kind of pain and couldn’t walk, so I let him sit down where he was. He was seated, and I was seated at the bench. I was asking him questions. At some point he said, “Oh man, I haven’t…” I said, “Now, look. I can rap with you outside of the courtroom, but we’re in court today. You don’t address the judge as ‘man.’” He apologized. When we met later on, he apologized again. I said, “That was a mistake.” He said, “Yes, it was a mistake.” People forget sometimes, and you kind of need to remind them. We reached the point in our development where we really don’t have the same kind of respect, a lot of respect, for the institutions of church, the school, courts that we once did, and I think we ought to encourage that for a nondestructive society. It’s a useful tool in performing your duties. 14:45 I’m not so sure of that. We can insist on it. It may not make any difference, but I feel better about it. I want to work in an orderly courtroom with a formal setting where lawyers remember the rules of decorum, where the clients come and they fall into the tradition and respect for the court and for the judge who happens to be sitting there, not so much for the person but the office that he has. But it may not make any difference to people who are going through the motions or, for that matter, in the mind of a specific judge. I’ve heard judges who charged right on the courthouse, who had the attitude that “If you plead guilty, I’ll give you one sentence, but if you insist on a trial and a jury finds you guilty, I’m going to sock it to you because you wasted my time.” You even have a right to a jury trial yourself and in order to be exercised without fearing that you’ll get a penalty for having exercise your right. That shouldn’t happen.
F: How do you respond to the fact that, in some cases, you refer people to marriage counselors? This isn’t necessarily common, is it?
AJ: The law permits it, and some might argue that the law encourages that. My experience with marriage counselors, though, was discouraging in the sense that I can’t say that the process of counseling people whose cases were already on the divorce court resulted in resolution of their problem in a higher percent of the cases. I think out of all the cases that I referred to marriage counselors when I was on the domestic relations court, less than 5 of them resulted in reconciliations as a part of the counseling process. Most people who have gone to resume their marital relationship do so because they just decided to try again. There’s nothing any marriage counselor can say that makes them make any different decision. Now, marriage counseling serves a different purpose. For that reason, I think it’s something good. That purpose is that it prepares people for divorce. It prepares them for the trauma of not living together anymore and of not having a unit, a family unit, anymore, and the business of the husband having the kids on a 2nd and 4th Sundays and movies in the summer. It makes them anticipate a lot of problems they never thought of. In that sense, a marriage counselor is a good thing. But many people regard it as a way to get people back together again. Let’s face it. By the time the problems get so bad they want to file for divorce, it’s almost beyond the point of return. But still, you have a very substantial number of cases where the suits are dismissed and people go back together again. Most of those cases involve people deciding on their own, without even having anybody. (background noise)
F: 18:48 I wanted to speak of the point of the family institution, I think, that you were relating to Louis about the institution being protected. You had had some feelings about this, I think. Have you not?
AJ: The family still is the basic unit in our society. What I see out here on the criminal docket so often is a percentage who comes from motor homes. Many times, he doesn’t know where his father is. The other fascinating thing that I see is that dear old mother stays whether she gets bored down to the end. Mothers just, which is part of—we had an argument the other day on this case. The prosecutor said, “The court stipulates so much weight on the fact that he said he confessed because he didn’t want his mother locked up.” He said, “He wasn’t living with his mother. There’s nothing to show that he cares for her.” Part of what I see that convinces me that we wouldn’t have as many people in trouble with the law is if family’s stay together longer. Once, of course, they break up, the unit disintegrates, and the children go one way, the daddy goes another way, mama’s got to go to work, or she’s at home with the kids. You get a lot of other byproducts of broken homes, and crime is one of them.
LM: I have two questions left. One of them is, is there a place for capital punishment in our decision?
AJ: I have no opinion on that as a judge, except to say if capital punishment is on the books in the State of Texas, where I happen to be judge, and I’m trying a capital case, my obligation is to make sure that jury is instructed properly as to what the law and what questions they must answer before the court can assess the death penalty. Under the law in Texas, if they answer in a certain way, I’m obligated to assess the death penalty. Now, the Supreme Court of the United States has written on the question of the death penalty in the last few years. There’s another case pending through the courts until now, I believe in North Carolina, where they’re going to write on the question again. For the next several years, you’ll see cases where the Supreme Court is asked to re-examine the question, whether that should be allowed as punishment. Until they come down squarely on the issue, whether the death penalty is or is not cruel and unusual punishment, we’re going to continue to have the death penalty laws on the books in the various states and, for that matter, the federal system. I have an opinion as a person with regard to the death penalty, but I’m not certain if you want to talk to Jefferson, the man, or if you want to talk to Jefferson, the judge.
LM: I don’t know if you could separate the two.
AJ: I can, and it’s important for me to do that in my work. I’ve got to remember that. That’s what makes certain that I know when I get on that bench that it’s the law that guides me and not my own personal philosophy about certain things. But I have views on it. As a man, I say, if I got home this evening, and somebody’s gone in there and killed my daughter and wife or one of my children, I want somebody to burn him. I expect my wife to feel the same way about me. If I’m killed by some ruthless murderer, you see? I think there are cases where the death penalty is a proper punishment, where it’s a deterrent to others. But people will argue that the death penalty doesn’t deter anybody. We don’t know that. I think it does. I think that any guy with a pistol in his hand who is about to pull it and discharge the projectile into some human body must think about the question of whether he’s going to burn one day if he kills somebody. Chances are he’s not going to do it. Chances are he’s going to be less concerned about the consequences of his act. He hates somebody enough to kill him, but he’s going to think twice if he knows that if he kills somebody, gets caught, and gets convicted, he’s going to get burned. You can’t persuade me that won’t make a difference in his mind. He’ll think through all those crazies that he’ll put the pistol down, or he’ll write a hot letter, or he’ll make a phone call, or he’ll curse somebody. He maybe even get in a fistfight with him. He ain’t going to stick him with a knife or shoot him with a gun. But to the extent that the applicability of the death penalty is uncertain, you encourage killing folks, which is as stupid to begin with, but of course, we’re dealing with people who don’t act reasonably all the time. As long as it’s on the law books, I’m obligated to see that the law is followed.
LM: Last question in an attempt to fill the emotional aspects of being a judge, and that is, is there attention that goes into a judge when he is supposed to decide on sentencing, weigh in the case and its conclusion—how do you cope with this type of tension?
AJ: Always. 25:10 We’d get a case, I remember a case, a guy named Aaron Jordon. I remember him just as well. He was convicted of selling heroine. I believe he’d been convicted a couple of times before for selling heroine somewhere out in the black community here in Houston. They caught him. They sent an undercover agent in, a law officer in disguise, and this fellow bought some heroine from him. It wasn’t a whole lot of heroine, half a gram or so as I recall, but when they caught him, they proved that he was guilty. 25:47 I remember one day, when he was in court awaiting sentencing, I think, his wife and all 5 of his kids were in the courtroom, and I remember sitting there watching the 5 kids go by and say goodbye to their daddy. That’s just got to target your heart strength, you know? But I can’t change the situation over there that you’ve gotten yourself into. I feel sorry for his family and his kids, but I got to pronounce the sentence. In the back of my mind, I can hope he has guilt there to hate himself so he can make parole and get on back to his folks. But I’ve got to know that the institution is such that we’re going to help that family while he’s gone. She’s not able to make enough money on her own.
LM: In our system, then, it would appear that the jury is sort of a buffer for the judge with the jury’s verdict. I’m prescribing the laws according to the book. I don’t want to put words in your mouth, but is this how it works, in a sense?
AJ: Not especially. The jury is essentially another part of the criminal justice system. It gives an accused person the right to have his case decided by 12 disinterested, dispassionate people. That’s all there is to it. They sit there, and they do a remarkable job when they come together and agree on something. Sometimes, they don’t agree. They call that a hung jury, and, of course, from the question of the defendant’s point of view, that’s the next best thing to acquittal. At least, he didn’t get convicted. Then, the prosecutor has to decide whether to try him again. I don’t know how other judges feel about the jury. That’s my view of the jury. It’s another part of the system. My responsibility in a jury trial is to give them the guidance that comes from the law and to make certain that the rules of evidence are observed in filing a case. I suppose a fairly difficult, sort of gruesome kind of situation, would be unfortunate if you didn’t have to make that decision. Let the jury make that decision. We don’t have that responsibility. I feel that way in some of these cases. I know at least I have the regular feeling in child custody cases, where the jury is selected to try that issue. But I don’t have to decide that question, because that’s the most horrible decision there is for any judge to make.
LM: Melissa, did you have anything? Any questions that you wanted to ask?
F: No, there was one that popped in my mind, but it’s gone.
LM: Thank you very much on behalf of the Houston Metropolitan Archives and Research Center, I want to thank you for your participation.
[end of 081_02] 29:18