Frank Price

Duration: 1hr: 3Mins
Please read and accept the disclaimer below to continue.

DISCLAIMER

I have read and accept the terms of the disclaimer.

The Houston Oral History Project is a repository for the stories, accounts, and memories of those who have chosen to share their experiences. The viewpoints expressed in the Houston Oral History Project do not necessarily represent the viewpoints of the City of Houston, the Houston Public Library or any of its officers, agents, employees, or volunteers. The City of Houston and the Houston Public Library make no warranty as to the accuracy or completeness of any information contained in the interviews and expressly disclaim any liability therefore.

The Houston Oral History Project provides unedited versions of all interviews. Some parents may find material objectionable for minors. Parents are encouraged to interact with their children as they use the Houston Oral History Project Web site to complete research and homework activities.

The Houston Public Library retains the literary and publishing rights of its oral histories. No part of the interviews or transcripts may be published without the written permission of the Houston Oral History Project.

Requests for permission to quote for publication should be addressed to:

The Houston Oral History Project.
Houston Public Library
500 McKinney
Houston, Texas 77002


The Houston Oral History Project reserves the right, in its sole discretion, to decline to post any account received herein and specifically disclaims any liability for the failure to post an account or for errors or omissions that may occur in posting accounts to the Virtual Archive.

For more information email the Houston Oral History Project at information@houstonoralhistory.org.

I have read and accept the terms of the disclaimer.




Interview with: Frank Price
Interviewed by: Louis Marchiafava
Date: January 10, 1975
Archive Number: OH 143

Marchiafava
0:00:07.3 Interview with Judge Frank Price, January 10, 1975. Judge Price, how did you first get interested in the law?

Price
Well, I graduated with a degree in history. Actually, I didn’t have anything that I particularly wanted to do at that time as far as continuing an education in history. I didn’t want to go into the service, so I decided to go into law school. I guess it was in law school that I really started to develop the interest in law.

Marchiafava
How does one get appointed by the governor?

Price
(Laughs) Well, I’ll go ahead and give you a little more background first, for whatever it’s worth. I graduated from law school in November of 1963, and I started working in the Harris County District Attorney’s office in January of 1964. I worked there for about 6 years, and I went out into private practice with another individual who was employed in the district attorney’s office. We opened up a 2-man law firm named James and Price. We specialized in the practice of criminal defense law. That was in September of 1969, and in June of 1973, I was appointed by the governor to preside over the 209th District Court, which is going to go into effect January of 1974. The legislature created this particular court along with one other criminal district court. At the time it was created, I began talking to various people who I felt may be helpful in causing me to be appointed by Governor Briscoe. Quite honestly, the first person that I talked to was a man by the name of Everett Collier, who was the editor of the Chronicle. I had been aware for quite some time of his interest and involvement in the local political scene as well as the state and national political scene. He had been doing this for some 40-odd years, so I was aware that he knew a great many people as well as Governor Briscoe. I more or less sought out him to get advice as to who I should talk to and whether or not I might have any chance of getting the appointment. Strangely enough, he was a little bit cold—you know—not too receptive at first. I guess maybe I didn’t know him well enough. Then he approached me 2 or 3 weeks later and asked me if I recalled what we had talked about, and I said that I had but I thought that he just wanted to check it off as something that was kind of insignificant because he didn’t pay any more attention to it than what he did at the time. He told me then, he said, “Well, I really didn’t know very much about you as a lawyer, and I wanted to go around and talk to people to try to find out something about you.”

0:04:08.6 He told me that he wanted to talk to several members of the Bar to try to find out what kind of lawyer I was, whether or not I was competent and qualified in their eyes, because I think it was his attitude at the time that if somebody was interested he didn’t want to help them unless they had a good reputation or if they weren’t competent and qualified. So he told me at that time that of those he talked to that I had a good reputation and that he would be interested in helping me but I was pretty well going to have to do most of it myself. It’s strange, but I’ve been coaching Little League baseball now for about 13 years, and I came to find out that a great many people who were—most of them were instrumental—big in the Bar Association, so to speak—as well as others were friends of mine and people whose son I had coached in Little League. Of course at the time I didn’t really realize anything about these people. When I found out who they were, I wanted to talk to them. I had a pretty good chance through Little League and things like that. One of them was currently the president of the Houston Bar Association, and several of them had been members of some of the big law firms here in Houston. I found out that there was sort of an advisory committee to the governor on local appointments. The chairman of the committee was also a person whose son I had coached in Little League. I talked to him and through other means found out the names of all the members and made an application through them. Actually I made an application to Governor Briscoe’s office and then made an application to this particular committee. And also Mark White, Secretary of State, is a friend of mine. I went to school with him. I talked to him, and just anybody and everybody I could who may have some political stroke or who may know the governor or know somebody who knows the governor or who may be an advisor to the governor in one capacity or another. I was one of the ones that who was appointed along with Andy Gibson(?), of course. There were a lot of people—I guess about 25—who made applications.

Oh, and there is a man named Judge Frank Evans who played an extremely important role. Judge Evans was Governor Briscoe’s Harris County campaign manager. He was appointed to the Court of Civil Appeals. He was extremely helpful. Just many, many people like him and Everett Collier. I rather suspect that Everett Collier played as major a role as any individual could have and was a great supporter. That’s, I guess, pretty well the way I got the appointment. I’m sure there were some other things that were done that I’m probably not privy to, but that’s generally what I did.

Marchiafava
0:08:47.3 Were you very active in the law profession as a lawyer before your appointment?

Price
Well, I wasn’t actually active as far as Bar Association work is concerned. I was active in the criminal law field. I was on the board of directors of the Harris County Criminal Defense Lawyers Association and started that. I had been a past member of the—I can’t think of the names of them now; it’s been so long—just various organizations through the District Attorney’s office—the National District Attorneys Association, the Texas County District Attorneys Association. I instructed at the police academy sometimes, things like that. That was mainly the area that I was interested in and more of the work that I did, along those lines.

Marchiafava
I don’t recall, did you say that you were with the DA’s office too?

Price
Yes.

Marchiafava
How long were you with them?

Price
Almost 6 years. I started under Frank Briscoe in January of 1974, and I resigned from the office September 1969.

Marchiafava
So you had experience both as a defense attorney and a prosecutor?

Price
Right. And I felt this was helpful to me, coming into a court such as this, which is a criminal district court—because I’d been on both sides and I tried a lot of cases. I just felt that this was something that was invaluable in the way of experience as far as preparing you to ascend to this particular position.

Marchiafava
0:10:57.6 Now, you’ve run for re-election one time since your appointment?

Price
Right. The law says that after you receive and appointment you must present yourself at the next general election, which was this last November.

Marchiafava
How does a judge get support in an election like that?

Price
It’s really fairly difficult. About the only way that you can find people to—well, that’s not necessarily—I suppose that the starting point obviously would be through the Bar Association. Now, the judicial races are not followed as closely as some of your other races—some of your local races. The mayor’s race, some of your legislative and congressional races and of course your national races are a little more important, I think, to the general public than just your judicial races. They really don’t know too much about the qualifications or anything of any of the people running. It makes it a little bit difficult. So you need the support of the Bar Association obviously, and that’s pretty much a starting point, I think. At least it was in my campaign. I had an opponent for a while. He withdrew before the election, so I was unopposed, but I was faced with organizing a campaign originally. I gathered a steering committee made up exclusively of lawyers, but I was not limiting my support to the legal profession. It’s too small. I just feel that if you have the support of the legal profession it’s got to help.

Marchiafava
Is there a great deal of money required to run in this type of election compared to an ordinary post

Price
Well, anytime you’re going to run a political race it costs money; it costs a great deal of money. This is another problem we’re having, obviously, raising money. Once again, I think your primary source of income is the Bar Association or members of the Bar Association. Some of the new disclosure statues and things are active and make people a little more reluctant to give money. Of course, like I said, nobody cares that much about judges, so they don’t give the large contributions the way so many other political candidates do.

Marchiafava
0:13:50.8 Does this create political pressure, being a judge and having to go out and campaign?

Price
Yeah, it did to me. I am not a politician. I don’t really like the politics. If a person is a friend of mine, that’s great, I’ll do anything in the world for me and hope that he would for me, but I do not like to go out and meet people or befriend somebody simply for what I can get out of them. It’s just sort of repugnant to me. And it is difficult because I enjoy working, and it bothers me when I’m not working. To sit around and do nothing really bothers me. So I’d rather be sitting out on the bench, listening to a case or ruling on a motion or hearing some evidence or doing something connected to work. Consequently, my politicking time was greatly limited because it cuts down on when you can actually go out and do your politicking.

Marchiafava
Do you have to align yourself with a political faction?

Price
Yeah, that’s what you have to do—democrat as opposed to republican. I suppose if there’s one thing that ought to be changed, it’s probably taking the party label out of the judicial race the way they have the mayor’s race and set them apart. Don’t put them under the democratic label or the republican label. But, yes, you do. You file as a republican or as a democrat. Of course, I was appointed by Governor Briscoe, so obviously I’m a democrat.

Marchiafava
An unusual situation. What is the alternative to the present system?

Price
Oh, golly. I don’t really know. This is something that’s been argued a lot by lawyers and I’m sure non-lawyers alike. If there was an adequate alternative I think we’d be doing it at this time. I think that probably since we haven’t actually done anything that maybe nobody has come up with a proper alternative. Taking the party name out of it I think would be of some help. I’m not sure that there shouldn’t be some sort of body, and it would pretty well have to be made up of, I would imagine, lawyers—somebody who could adequately evaluate a judge and his ability and his competence and to make some sort of recommendation to the public perhaps and maybe limit the number of candidates. I don’t know. I’m just not really sure what a proper alternative would be. I’m not really totally in favor of just presenting yourself to the public and let them vote on you. It may be that you’d want to do it at a different time when there’s no other political race involved. Consequently, those people who are interested and who do go out and vote will find out something about the person before it goes out there. But if you join it with just a general election, it’s just going to be—you know—they’re going to be interested in the races up here, and they get down here and say, “Oh, here’s the judge. Well, he’s the first name on the ballot, so I’ll punch him.” This happens more often than not, because the last 2 or 3 elections there have been 2 or 3 benches where 8 or 9 or 10 people have filed. It’s always ended up a runoff between the top two names on the ballot. This is not fair either because it just depends on the luck of the draw at that point. That’s not really right. So that’s, I guess, one solution maybe—have an election at a different time, when you’re electing and selecting only judges, with no other political races involved. I’m sure you wouldn’t get a very large turnout. Like I say, I just don’t think the public is that interested in the judiciary races. I do think you ought to take the party tie or label off of it.

Marchiafava
0:19:13.2 Is there any position which prohibits, say, a law firm to donate a lawyer a lot of money to election of a judge and appearing in that judge’s court to try a case?

Price
No, I don’t think so. Or at least, if there is any statute, I’m not aware of it. Of course, my position over here, being criminal district courts, is a little bit unique from the civil side. We do not have any large law firms that practice criminal law. As a matter of fact, the 5 very large law firms in Houston don’t practice criminal law; they practice civil law. The majority of the criminal cases that come through this firm are referred to criminal defense lawyers. Of course, this is—you know—was sort of a selling point to me, going to the large law firms and saying—you know—you could legitimately contribute to my campaign because you people never come to my court anyway, so nobody could every accuse anybody of any kind of favoritism or anything because they contributed a large amount of money. But nobody contributed—well, I think probably the largest contributor was about $500. I think; I’m not sure. That doesn’t really go very far, you know. So in my position, it doesn’t make that much difference because there are no large law practices.

Marchiafava
0:20:56.8 You’ve had a chance, being a prosecutor and defense attorney, to gain a great deal of knowledge about the quality of both. Now sitting on the bench, you can give an objective opinion about it. What is the quality of the prosecutor, presently, in Harris County?

Price
Well, obviously it’s going to vary from prosecutor to prosecutor.

Marchiafava
On the whole.

Price
The quality of the defense lawyer is going to vary from defense lawyer to defense lawyer. I can tell you that the most frustrating thing, sitting on the bench, is when some lawyer comes in and he’s not prepared or he doesn’t know what he’s doing and I’m sitting up there having to listen to this. It gets extremely frustrating. I suppose the greatest amount of injustice that flows from, through, or by the legal profession—however you want to say it—probably occurs in the courtroom, and I think if there’s anything that we need to change the structure of legal profession it would be to limit people who actually come into court representing somebody, whether it’s from the prosecution side or the defense side or whether it’s in the civil court or plaintiff or defendant or whatever. I think this is extremely important. You cannot imagine when a defense lawyer who is inexperienced or unprepared comes into court representing somebody whose life is at stake. Well, this guy is going to suffer because of it. It may mean 5, 10, 15, 20 years out of his life because of the ineptness of a defense lawyer. And then what happens—then we spend years and years and years taking this particular case to the appellate courts, and somewhere down the line—you know—4, 5, 6, 7 years from now, somewhere in federal court, the case is reversed for ineffectiveness of counsel. Well, somebody spent one large sum of money in this entire operation, which is really unnecessary if we could just change our system. I kind of like the English system in that regard. They have what they call solicitors and barristers. The barristers are the only people who can actually go into court. A barrister may one day prosecute a case and the next day defend a case. What this does is it keeps them from being totally aligned with one particular philosophy. You have a prosecutor and he’s employed by the District Attorney’s office and he does nothing but prosecute cases, well, he’s got a particular philosophy that he’s going to be aligned with. You have the defense lawyer that is the same way, you see. Whereas if you have a person who maybe one day prosecutes and maybe the next day defends, then he’s not going to be all the time criticizing the prosecutors for being unfair or vice versa—criticizing the defense lawyers for going out and bringing witnesses in to misstate the facts or something like that. I don’t know. It’s something worth thinking about anyway. But that doesn’t necessarily answer the question that you asked. You’re talking about the quality of the—the overall quality of the prosecution.

0:24:45.6 The overall quality of the prosecution, I don’t know how you would rate it. I think probably, right now, in the Harris County District Attorney’s office there are a great number of very, very fine trial lawyers who are in administrative positions, who are not trying cases, and it’s unfortunate. Consequently, some of the other people who are not as experience, not as competent, are the ones who are actually coming into court, representing the state of Texas in trial of criminal cases. I think this is unfortunate. I don’t need to be critical of Carol Vance, because he’s certainly a lot closer to it than I am, and he is a good, close personal friend of mine, but I do feel that he has a large number of very competent, qualified trial lawyers who are not in trial positions; they’re in administrative positions. You can say anything you want, but you don’t administrate justice. It just doesn’t work that way. You have a lawyer on this side and you have a lawyer on this side. What you want is to get competent lawyers on both sides who understand the strengths and the weaknesses of both sides, and they can come to an honest agreement about a particular case without having to try to slip something by somebody, be fair about it. You don’t have to hide anything, my gosh. Also, I think you ought to change—I don’t know why I’m getting into this; it’s not really a big deal. But one other thing I think that may be bad to our system—and when I talk about a system, I guess I’m talking about the administration of justice, which we are all interested in, of course—but we need statutes, rules, laws, whatever you want to call them, where we can have a little more open discover methods on both sides. Now it’s more or less one-sided. The defense can come into court and really, if they are competent and qualified lawyers, can find out everything about the state’s case—everything—whereas the state doesn’t have a right to find out anything about the defendant’s case. Don’t you think that it might be proper if the end result is trying to get at the truth of the matter? If the defense is going to try to set up a defensive alibi, why should he be allowed to tell the state, “Well, our defense is alibi, and I’ve got these witnesses. If you want to talk to them, fine.” If the guy didn’t do it—I mean—if he really didn’t do it, you don’t need to be in there trying it. I can remember a case—and I really won’t mention any names—was not in this county. It was a killer-for-hire case in a neighboring county where the defense lawyer went down and tried to negotiate a plea with the district attorney in this particular case. He had another case in another part of the state, and they wanted to plea to 25 years. Well, the district attorney wanted 50 years, so they didn’t plead guilty. So during the course of the trial, the defense produced a surprise witness—a surprise alibi witness—who incidentally was a judge from another county who came in and claimed he had a bill of sale, this guy couldn’t have done this particular killing because he was with him all day. Now, you can’t tell me that that lawyer didn’t know of the existence of that particular individual, if it did actually exist. The only thing I’m saying is that if this is a legitimate situation, then what’s he going down there and negotiating a plea for? If it is a legitimate situation, maybe he ought to be willing to say, “Okay, this is what our defense is, and we’re going to come forward with this.” I mean, why not? Why should you hide something if it’s true? So I think we need more discovery on both sides. I don’t think the state ought to be allowed to lay behind the law evidence of surpriety(?) so long as they can find out what the other side has. I mean, it’s almost as a game, and this is unfortunate, but it’s gotten to that point. It’s a game. We’re playing a game of strategy, but we’re playing with people’s lives, and this is not really good. Now it’s me as a lawyer pitted against Joe Blow as a lawyer. Well, this poor guy here is sort of the pawn, and whatever good or bad happens is going to happen to him. It’s not going to happen to me, it’s not going to happen to some lawyer, but this guy here is going to suffer the consequences. He doesn’t know what’s going on. I mean, we’re going to play a game. I’m going to lay back and produce certain witnesses and ask certain questions and have things over here and bring them in later and do this. And that guy is going to do the same thing to me, you see. But that’s not what it’s supposed to be. You’re supposed to say, “Okay, let’s just lay it all out on the table. Let’s bring in all the witnesses and see what they have to say. Let’s make our decision from that.”

Marchiafava
0:31:03.1 How does a judge select a court appointed attorney?

Price
That’s a good question because there are a great many people who—defendants—persons accused of a crime—that come to court that don’t really have sufficient funds in order to afford an attorney. Generally these people are in jail. They can’t even make bond. I am, I think, somewhat opposed to appointing a lawyer to represent somebody who is out on bond, able to work, and capable of hiring an attorney, as long as it’s for good reason, of course. But generally there are a good many people in jail without the funds to make bond, without the funds to afford an attorney. Then they file what is known as a pauper’s oath with the court. What I personally do is I try, in most cases—if it’s an important case, like a murder or a robbery or rape—and I try to alert the assistant district attorneys also. Look, if we’re going to appoint somebody on a case, I want to make sure and appoint a competent lawyer on any case that’s notorious, that may be complicated from a legal standpoint or from a factual standpoint. Some of the general, ordinary, run-of-the-mill cases you can’t be hurt too bad if you don’t have the most competent lawyers, if you understand what I’m saying. But a lot of the cases, like the Ronald Ryan case, which the fellow out in Salinas Park(?). He was accused of killing his son. He was declared to be indigent. I had to appoint lawyers to represent him. I was trying to be careful to appoint somebody—actually I appointed two lawyers, people who I feel are competent and will do a good job for him. I think it’s extremely important not only for that person’s benefit, but I think society is entitled to it. I think that if you do get competent lawyers, this will save the taxpayers, in the long run, a lot of money.

Marchiafava
0:33:56.6 Do court appointed attorneys receive a reasonable fee for their services?

Price
Yes and no. Some do and some don’t. It’s obvious some of the court appointed lawyers who come in do a much more competent job, they do spend more time preparing, they spend more time investigating, and the law really doesn’t adequately compensate these people. Some people make their living by representing indigent defendants because it’s an easier way to get money. Every time you make an appearance you get $50. For every day in trial you get at least $100. I try to adjust it where I see a person has done a much better job. I try to reward them with more money. It’s not really enough, but it’s—

Marchiafava
It would seem that a case such as the Ryan case that the attorneys are certainly going to have to make an effort. It may take a lot of work. One wonders if they can possibly be adequately compensated by the court.

Price
Well, I’m confident that they will not be adequately compensated for their services to the same degree that if he had walked in off the street and employed them, but I am also confident that these people will do as good a job as they possibly could do the same as if he was somebody off the street and was paying a very, very large fee. This is something else that I honestly take into consideration—somebody that is maybe motivated by pride as by money and would realize the importance of his role in a particular case so that he’s not going to be concerned with the fact that he’s not getting as much money as he would have if the guy was a paying client.

Marchiafava
0:36:06.8 I’d like to turn just for a moment to the interesting remarks you made about the poor quality of some of the defense attorneys. As a judge, is there any way that you can mitigate the damaging effects of such a lawyer on a defendant?

Price
You have to be very, very careful because if there’s no jury there it’s not quite as bad, but when there’s a jury there, you’ve got to be extremely careful what you say and what you do because you can’t let that jury have any idea of what your personal feelings are. And you have to understand the judge is a human being just like everybody else, just like everybody involved in the case, and he’s got particular feelings. And it’s just darn hard for a man who is a judge to sit up there and—even though there’s a jury in the box—and not believe a witness or disbelieve a witness or not have any particular feeling as to the guilt or innocence of the man who is on trial. The thing that judges are careful about is not expressing his opinion to the jury by the way he rules or the way he talks to the lawyers in court. About the only thing that you can do is sometimes you can call a recess or do it at a time when the jury doesn’t know what you’re doing and just take them back and tell them. I’ve had situations where lawyers have made applications for probation and they didn’t properly prove probation. Consequently, they’re really not entitled to a charge to the jury. Okay, well, if the man is eligible, he’s made application, I’ll tell them. I did it today, as a matter of fact. I’ll say, “Okay, look, in order to get the charge to the jury, you’ve got to go further and there has to be some questions.” I’ll, a lot of times, tell them, but I don’t want anybody to know. I personally didn’t feel the man deserved probation, and he didn’t get probation, but I didn’t want the jury not to consider it because they lawyer didn’t ask two questions. I thought they were entitled to consider it. The man qualifies for it, and because the lawyer didn’t ask certain questions, why should I keep it from the jury even though I don’t feel it’s a proper punishment myself. So I told him what to ask, he did, and the jury got that consideration even though they didn’t give it to him.

0:38:49.6 There was a time when there was a lawyer representing a defendant who was not very experienced. The prosecutor was the person who has been practicing a long time. He’s been a pretty good prosecutor for a pretty good while. He’s classified as being a little bit overzealous. He wanted to over-prove his case. He always wants to try to get in some extraneous offense if he can, and he was trying to get a piece of evidence that really wasn’t admissible. It had to do with a lineup, a portion of the offense report which was likely to result in a lineup. It was not admissible. So he offered it, and the lawyer said, “Well, the only objection I have”— I said, “Do you object?” And she said, “No.” I said, “Well, you just told me that the only objection you had”— She said, “Yeah, the only objection”— I said, “Do you object?” She said, “No.” And I said, “Well, I do.” And the prosecutor looked up and said, “Well, she doesn’t object. I want it to go to the jury.” I said, “No. It’s not going. Let’s get on to something else.” I mean, what you’re doing there is you’re building a case for some court down the line to reverse it because of ineffective assistance of counsel, and there’s no reason for it.

00:40:27.6 (Break in audio) So anyway, I was just saying that there’s no reason for going into some of these things that can give rise to the case being reversed down the line. It’s ridiculous. But you really do have to be careful. I’ll give you another for instance. There was a judge trying a case. He’s actually a good friend of mine. He was trying a doctor for illegally dispensing drugs to an addict or something. I’m not sure exactly of the nature of events. He got a little bit upset with the prosecutor the way he was prosecuting the case. So the jury was out for a long, long time on guilt or innocence and finally came back and found the man not guilty. One of the other prosecutors assigned to the court but who was not involved in the case talked to a couple of the jurors. The jurors told him that, “Well, we really didn’t know what to do. The thing that finally swayed us—caused us to find the man not guilty—was we felt the judge thought he was not guilty because of the way he acted and the way he talked to the prosecutor.” So I know that jurors are not stupid, and they pick up things like this. You just really have to be careful about what you say and what you do. There have been times when I got so upset because of a prosecutor obviously running over the other side. I just finally said, “Sustained.” He stood up and looked around to see who objected. Of course, I was objecting. You can only take so much then you’ve got to kind of sit down. Of course this one particular prosecutor that I was talking about who likes to get a little bit far afield as far as the facts are concerned, he’s tried two cases in my court. I called him in before each case and told him, “I’m sure somewhere during the course of this trial you are going to feel or believe that an extraneous offense is deemed admissible. All I’m telling you is, before you discuss anything concerning any extraneous offense or ask any questions from any witness or try to introduce it at all, you come talk to me out of the presence of the jury and we’ll decide at that time whether it’s admissible. He did, and it wasn’t. Consequently, he didn’t get it into evidence, but it saved a potential mistrial or a reverse case down the way. But you just have to know who these people are. I’ve been an expert now a little over 10 years, so I kind of know who the good ones and who the bad ones and the ones that want to get a little bit tricky with the other side and maybe don’t always want to play completely fair are.

Marchiafava
0:44:12.3 In the cases you’ve presided over, have you had a chance to evaluate whether the police officers respect the right of the accused? Are there any instances in which you—?

Price
Yeah. I kind of know what you’re talking about. I think it’s probably obvious to just about everybody or anybody who may be listening to an officer testify. I think you can kind of tell those police officers who are good cops, that are qualified, that care about what they’re doing and some of them who just really don’t give a darn, like to go around and beat up on people. You can kind of tell. Their attitude comes out when they testify. I don’t think it’s necessarily important that I find this out, because I think the jury can tell and anybody listening to them can generally tell. I think you find, when you’ve been in the profession for a while, you know pretty well what to look for in the way of the types of cases that the officer may want to bend the truth a little bit, if that’s a proper way to say it, or may want to add something to a situation. Well, I’ll tell you, like in narcotics cases. We have an awful lot of law developed in the area of search and seizure, and it’s probably more prevalent in this area—the narcotics area—than the other areas, although it does apply to other areas. I suppose I can understand to some degree the philosophy of the police officer. He takes the position, “Well, my gosh. I’ve gone out here and I’ve arrested this guy. He’s got a bunch of dope on him. Simply because I didn’t follow exactly—this particular case has just come out or I didn’t follow this rule exactly or I didn’t do exactly what I should have done as far as the arrest and the search was concerned—he walks out a free man, yet he’s guilty?” So, fine, now they’ll build things into the case. They may stop somebody strictly on a suspicion because maybe they’re driving a van, they’ve got long hair, and they’re in a large “narcotics crime area.” Therefore, they stop the people, search them, and find something on them. They say, “Well, they’re guilty. They’ve got the stuff.” What are we going to do? Just let these people go. So they say, “Well, the guy was committing a traffic offense. I came on the vehicle and when they rolled the window down I noticed a very strong odor of burning marijuana.” They get into it. They try to build facts into a situation. They are trying to use the means to justify the end. They can say, “Well, I’m not really doing anything bad because they’re guilty. And it’s not right. It’s not fair for them to be able to walk out of here because I didn’t have any real legitimate reason to stop them other than I just know instinctively what’s going on.” That’s something you’ve got to kind of look out for. I think once you practice long enough you learn these things—you learn the problem areas.

Marchiafava
0:48:16.1 What can you do about a situation like that?

Price
Well, really it gets to the point where it’s their word against the other people’s word. And what you have is you have a motion to suppress filed. This is heard by the court and not by a jury to determine the admissibility of the evidence before you try the case to the jury. You’ve got to make a decision. Is the officer telling the truth? Then it’s a legal situation. If he’s not telling the truth, then you have to settle it. I can remember a time when I was prosecuting a case. I heard the offense report, and I talked to one of the officers. It was a Vice case. It was narcotics involving the Vice division. It was a fellow that I had met 2 or 3 days before this because I had gone riding with him. I was a prosecutor. I called him and said, “Hey, do you remember this case?” The defense attorney had filed a motion to suppress, saying that this is not really what the facts are. So I call this officer and I have him come in. He says, “I know what the report says. Let me tell you what happened.” He told me what happened. He said, “Now, I’ll say anything you want me to say.” I said, “Well, you get on the stand and you tell the truth. We’re going to lose the case, but I’m going to be able to go home and sleep.” It’s just not worth it.

0:50:00.8 (Break in audio) So I felt a lot better about it. I didn’t feel it was necessary to—it just wasn’t worth it. Consequently, the motion was granted. The case was dismissed. I’m sure somewhere down the line they’ll get another shot at him if he continues to violate the law. But other than that, there’s really not a lot a judge can do other than make up his mind who is telling the truth and who is not telling the truth and what you’re going to do. There’s a move on now that I think Senator Bentsen is advocating doing away with the exclusionary rule—and Chief Justice Burger and I’m sure some other people who are interested in doing away with it. I’m not sure it’s a good thing because the ultimate effect will be that officers can just indiscriminately search people—stop them, search them, and if they find something they can file on them and there’s really no defense to it, and if they don’t find anything they can let them go. I’m not sure that’s a good thing. There is a move on to do away with exclusion. Maybe it will come about. It wouldn’t surprise me.

Marchiafava
0:51:46.1 One last question in this area that deals with publicity and certain types of cases, like the mass murder cases. Now we have this case from Halloween. What protection does the defendant have when the case is so widely publicized? Can a man receive a fair trial?

Price
Well, of course this is the age-old controversy—fair trial as opposed to free press. You just have to be extremely careful in the selection of your jury and hope that you get honest people. When they tell you they have not formed any character of opinion as to guilt or innocence of a particular individual by virtue of anything they’ve read or seen on television or heard on the radio, and when you instruct them not to read anything that may be published in the course of the trial—if you’re not going to lock them up—or watching anything on television, it’s difficult. I think you can get a fair trial. I think the judge has to be careful. Well, it’s hard. It’s just hard to stifle the news media. You just can’t do it. It’s extremely difficult. You hope that they use good judgment in what they print and what they say. I’ve seen an awful lot of articles written about persons and about situations that were not accurately reported and it leaves an impression in the mind of the reader, or the listener, as the case may be. It’s a false impression is what it is. It’s something that’s not accurate. This is unfortunate. But I suppose ultimately what you can do is you can take a jury and you can sequester them, lock them up every night, which is a little bit inconvenient, but if it gets to the point where that’s going to be a problem, that’s the only solution we have. I certainly don’t relish the idea of getting involved in a big fight with any of the news people. I did once, not fight, but during the John Hill case—one of the related cases involved in the killing of John Hill—we were having a motion to suppress the confession of one of the defendants. One of the reporters for one of the papers asked to see the confession, which had not been introduced, and there had been no final ruling on the motion. So I said, “Yes, I will allow you to read it.” I didn’t have to, but I was doing it as a courtesy to him. I said, “But I don’t want you to print the substance of it. I mean, the fact that we’re having a hearing on the confession is one thing, but don’t print the substance of it.” I’ll be darned if the next morning on the front page the entire thing was set out there after I told him not to. My gosh! I just— It was absolutely ridiculous. So I had to grant a motion for continuance and in one of the related cases where there was no confession, because one confession can’t be used against another defendant. Of course, having printed the substance of it, you in effect have done just that. So this was an unfortunate situation. I had a long talk with the man. I think he understands.

Marchiafava
0:56:35.9 I’d like to move on to grand juries. There’s been some talk in recent months about some grand juries are more liberal than others. I think that means that they investigate social conditions rather than criminal activities. What influence does a judge have in influencing the direction of a grand jury’s investigation?

Price
Well, I think the judge can have a great deal originally because of the way grand juries are selected. Now, if you select commissioners who are extremely conservative in their philosophies, then they will obviously select or appoint perspective grand jurors with the same philosophy, you see. Consequently, if you get a person who is labeled a liberal—you know—that’s proper to do—who is labeled a liberal and he selects commissioners who are extremely liberal, well, it only stands to reason that the grand jurors who are going to be ultimately selected are going to be liberal-thinking people. Consequently, their attitudes will be directed or channeled along the lines you were talking about—social issues. So I think that the control the judge would have would be the original selection of the grand jury. And, too, really, I think the judge, if you just go to him, even though they don’t have to do what he tells them to, I think they would probably respect his judgment if he were to say, “Look, we’ve got this problem involved, and I think that it would be best if you didn’t do this.” He obviously can’t make them not do it. He can suggest to them. I think that probably they would respect his judgment and do what he says because each grand jury returns its indictments to that particular judge. They really function through that judge and not the record(?) of the judges.

Marchiafava
Should a grand jury concern itself with such matters?

Price
Well, that’s a difficult question to answer. Certainly if they have the time to do it, if it’s something that needs to be looked into, or if it needs to be just exposed—whether any indictments are returned or not—just exposed so enough of the right people can realize that there is a problem and do something about it, it may be beneficial. I’m not saying that they shouldn’t do it. I’m just saying that I think that they ought to use a great deal of discretion before they do do it, and certainly it ought to be a situation where they have some time available so that they can devote properly to that area and not neglect their other areas. I mean, you’ve got to consider that, I suppose, the primary function of the grand jury is to return indictments, and we have an awful lot of people who are in jail awaiting indictments. Consequently, if they direct their attention to an unrelated area, you’ve got somebody in jail who is suffering and that’s not right. So I think that they ought to use a great deal of discretion, and it certainly should not diminish or detract from their primary function of considering pending criminal cases. Grand juries have been criticized for being rubber stamps for district attorney’s office, and in some degree they probably are because they do consider a very, very large volume of cases each session. They meet twice a week for a period of 3 months.

1:01:30.3 Really, they almost, in a lot of instances, have to rely on the assistants presenting cases to them to be honest with them about the facts. And if you have a good, competent assistant DA who is not trying to get everybody in the world indicted just merely because he’s been filed on a charge by some investigative agency, it’s not so bad. But if you get just some guys go in there and they want to get everybody indicted, to that degree it’s bad. There are certain situations where— See, all shootings, all homicides, potential homicides—or just say all homicides—are presented to the grand jury in one way or another, even if it’s a justifiable situation. It’s presented to them so they can know what they found the facts to be. And there are a lot of cases that the police departments or other law enforcement agencies don’t really file as a criminal charge because their investigation may reveal that it was self-defense or it was justifiable or accidental or whatever, so they gather whatever evidence and information they can and present it to the grand jury. They can make whatever additional investigation they need to make. Or if there’s investigation involving where a police officer shoots somebody, they have to make a decision. Was he acting in the line of duty? Was there a proper, legitimate situation where he can be exonerated as far as the criminal charge is concerned? In that regard, they’re not a rubber stamp for anybody. They do their own thing and make their own decisions. But some of the ordinary felony cases presented to them, I suppose they can become a rubber stamp. Although, if a defense attorney knows his case is going before the grand jury, it’s easy to find out. Just go check the agenda. You can talk to the prosecutor presenting the case and find out. If you have something you want to present, if you want to present the defendant himself, you can write a letter to the foreman and make a formal request that you want to present your defendant from this case that is presented because, or you want to present witnesses, or want them to be aware of certain witnesses, or something like that. And then, if they’re conscientious, they’ll probably do it. I think most of them do it in most cases. It doesn’t happen too frequently, but occasionally it does. Most grand juries, I think, will be interested in a situation like that. And we’ll hear additional testimony or evidence from the defendant or any of his witnesses. Then I rubber stamp, you see.

1:04:40.2 So they do some good—they do some good. I think there are certain cases where they’re probably not really a necessary body—a necessary function that couldn’t be done by one individual.

Marchiafava
The other area a great deal of publicity gets focused on in regard to grand juries is the ethnic composition, or the racial composition, of the grand juries.

Price
Yeah.

Marchiafava
Do you think these are valid criticisms?

Price
Oh— It may be a valid criticism. I don’t know. Of course, I’ve only had one grand jury, and I’ve got another one that will start up in February. I always appoint 5 commissioners, and I always get a black, a Mexican American, a female. I try to get somebody from labor, somebody from business. You know, you’ve got to get geographical. You’ve got to get ethnic considerations. In a city the size of Houston, that’s almost impossible to get every particular group and geographical area represented. It just— I don’t know. I’m not sure. I mean, if there was a systematic exclusion—if you could show a systematic exclusion of an ethnic group or something, then you may have something. But I don’t think we really have that.

Marchiafava
Do you think the ethnic or racial composition of a grand jury has an effect on their decision or cases?

 

Price
I don’t know. I don’t know because I’ve never been on a grand jury and I’ve never talked to anybody on a grand jury who has told me that, so it would be a guess and I’m not sure it would be very accurate. I just don’t know. I’m sure that’s probably what they think about when they—I mean—look. Look at it this way. You say you have two blacks on a grand jury. It takes 9 to return an indictment. They voted against every particular—I mean—voted no on every particular black whose case was presented. It wouldn’t do any good. I know that doesn’t happen. I don’t know really. And you know, really, I tell you something else that’s really kind of funny—it’s really kind of strange. A guy came into court not too long ago. It was a black man who was accused of robbery. It was aggravated robbery. He ended up pleading guilty to the jury, which it was pretty well made known that that was what he was going to do. They approached the jury, “This man is going to plead guilty. The only thing we’re talking about now is punishment.” I got a letter from a lady who was a member of the jury panel but who did not get on the jury telling me of the great injustice that was done in that court, that this was a black man who was being tried and there were no blacks on the jury. This was a great injustice because everybody knows that no black can get a fair trial from an all-white jury. Well, this guy had only committed 11 armed robberies, and he started talking about all of his narcotics habits and blah, blah, blah. He got the minimum 5 years punishment from an all-white jury. I have seen blacks accused of crimes, all-white juries—bad cases—they’ve walked. I don’t think, in Houston, that you have the prejudice that you might—that some of the blacks think exist here. I’m not saying it doesn’t. I’m saying the most part of juries I just don’t believe, to that degree, it exists. I just get a little bit sick and tired of hearing it.

1:09:28.9 In effect, what it boils down to, this lady that wrote the letter is a bigger bigot than most white bigots are. They’re saying that a black man can’t get a fair trial from a white jury. That’s just dead wrong. I just get sick and tired of hearing that racial issue being brought up. I just don’t think there’s any place for it, really. I just haven’t seen it to the degree that people claim it exists.

Marchiafava
Have there been any cases that it appears it has been a factor?

Price
I have never seen one. I have never seen it. If it is, it’s been hidden extremely well. I’ve seen too many blacks get probation. I’ve seen too many blacks found not guilty, same as whites. I’m not saying one is any greater than the other. I just haven’t seen somebody get convicted just simply because he’s a black person.

Marchiafava
1:10:49.6 The last group of question I’d like to get into is more or less trying to get inside the thinking of a judge—problems and stuff. While I was waiting for the interview I saw you in court, and I heard that you were going to sentence a man to 5 years. Is there a tension that’s created in a man’s mind, sitting on the bench and having to sentence people?

Price
Well, if there’s not there’s something wrong with them, I think. You have to realize a judge really has a lot of power. He has a lot of control over other people’s lives. If he doesn’t understand the concept of the criminal justice system, he will never be an effective judge. I know an awful lot about this kid out here. This kid has been in trouble all of his life. He was on probation. He got 2 years’ probation in March. He got 5 years’ probation in August for stealing a car. He was not even on probation 6 weeks when he got caught for taking another car. He’s been around for a long time, and he’s only 18 years old, but somewhere down the line you’ve got to get his attention. Slapping him on the wrist or giving him probation is obviously not the answer; he’s had it too many times—you know—even as a juvenile all the way on up. But, yes, the most critical function of any judge is when he goes to sentence or punish somebody. You’ve got to understand that we have some people with a behavioral problem, we have some people with a medical problem, and you treat them differently. You don’t treat them the same way. We have some people who, even though they commit crimes, they really don’t belong in the penitentiary. They need help in other ways. I think we’re getting to the point now where we’re becoming more and more involved with community-type projects for the treatment for people with behavior problems. Instead of just sending everybody to the penitentiary—it’s kind of an evolved situation—but anytime that I’m going to sentence somebody that I don’t do it in a manner of law because the statute requires this particular punishment, I will always get a presentence investigation—always. I want a very complete, in-depth presentence investigation. I want to go back as far as you can in this man’s life—get his educational background, get his employment record, get his family background, get his religious background, talk to friends and anybody who knows anything about him. I want to find out what has motivated this person to do what he has done. Even if a man goes to the penitentiary, you know he’s going to be back out in society one of these days. He’s got to. You want to make darn sure that when he comes back out he’s going to come out as a productive member of society and not somebody who is going to be so brainwashed or so bitter that he’s going to go right back in the same environment he was in before he went up there. That’s why some of these community-type projects where the general community is involved with the treatment of these people— I don’t believe that you really rehabilitate anybody. This is not a universal statement, and I’ll explain it. Because when you say “rehabilitate,” you’re talking about restoring to a condition or position that they were in prior to the time that they allegedly fell by the wayside. I’m saying these people never were there. If you want to use the word “habilitation,” I think that may be appropriate. In a lot of instances—in most instances—these are people who have never, never had it. They’ve always had problems, whether it’s environmental, whether it’s whatever. They’ve always had some kind of problem. Also, when certain people—I can’t do this every case; I wish I could—but those people that I sentence, not only do I get a presentence investigation, but there have been several times where I have asked for psychiatric and psychological evaluation. You can’t get it from Harris County, as far as I’m concerned. They wouldn’t have the time.

0:16:04.3 There’s a man—I don’t really know him very well—he’s a psychiatrist. He has always given me very complete and very competent reports on people. I had a kid out of Pasadena you wouldn’t believe. There’s not enough time on your tape to tell you about it, but it’s really a very unique situation. I’ll just tell you briefly. This kid has had 6 armed robberies on him. He had scholarships to college—athletic scholarship—never been in any trouble in his entire life. He gets this girl pregnant and marries her. She has the kid. He’s away at college, and she starts writing these real pitiful letters, so he comes back home to live. He really cares about her and wants to make a home for his wife and his child. So he gives her a graduation party when she graduates from high school. He catches her in bed with one of his best friends. He sends her away and brings here back. A week or so later he catches her in bed with another one of his friends and he goes crazy. The first thing he does is he starts taking all kinds of narcotics and he ODs. Then he detoxified or whatever they do, and he makes an appointment with a psychiatrist and goes home and his father won’t let him keep the appointment. So now he gets zipped up on narcotics and stuff and is going out and high jacking people.

1:17:45.4 He comes in and he pleads guilty. I wrestled with this for a while. So the probation officer talked to him and asked him, “Was your gun loaded?” He said, “No.” She said, “Why should I believe that?” He said, “It just wasn’t loaded.” She said, “Well, didn’t you think you’d get killed or something?” He said, “That’s what I was hoping for.” So I sent him to this doctor, and he sent a very, very long report back. He told me that the biggest problem this kid had was with his father. He never had a proper father/son relationship. He made a lot of excuses for the way his father treated him and acted towards the family. It was just really kind of unfortunate. Here he was trying to give his own family something that he didn’t have, and then his wife does this, so he just went crazy. And he wrote me a letter. He said, “This is not a dangerous person. He’s really not. He doesn’t belong in the penitentiary.” He starts out, “As you know, I am not a bleeding heart. I think criminals need to be punished for the protection of society, but this man”— So anyway, I made him stay in jail a year, which is a long time. Six armed robberies is something to be concerned about. Of course, the district attorney’s office was just really upset because I told them I was going to give him probation. I’m sure if the newspapers got ahold of it they could have bent that all out of proportion. They may still do it somebody. The kid is doing very, very well. The only problem is his father. But he’s got a scholarship back to school. He should be going back this semester, whenever the new semester starts. I think it’s September, something like that. He’s doing extremely well, and I’ll lay any amount of money that he never comes back at all. After taking the plea, he said something. (inaudible) The prosecutor came back and told me, “Well, I just want you to know that you were right. You did the right thing.” But there has yet to be one person that I’ve given probation to—and I’ve only been on the bench a year and that’s not very long—but I’ve never had a single one of them come back that I’ve personally given probation to—you know—not through any recommendation through the district attorney’s office.

1:20:36.2 But, to get back to your original question, yes, it’s an extremely emotional thing. I mean, you don’t want to make a mistake. You’ve got to be extremely careful. You’ve got to explore every avenue of alternative to try to help the person. But some people belong in the penitentiary. Some belong in there forever. We have some people that it frightens me to think that they may get out, but we have some people who don’t belong there. They need treatment and help, but they don’t need it that way. I think the attitude of people like that, I think they kind of change a little bit. It’s not put them away for as long a period of time as you can. It’s just stand back and take a little closer look at the case. What has he done wrong? Let’s see what we can do to help him. He’s got to be punished, but you have to understand too that he’s going to be back out here someday. It’s very, very interesting. It’s just an awful lot of things to consider. And I doubt that I could sit down and tell you everything that I consider when I go to punish. I sit up there that whole time listening to that case, trying to think. Well, if I revoke it, it’s 5 years. Should I reduce it? He testified and he said some things that didn’t really make a lot of sense. He’d have been a lot better off if he’d just gotten up and said, “Yeah, I did it. I’m sorry.” But I called the probation officer and said, “Tell me something more about this guy.” I’m sure I couldn’t begin to tell you everything I take into consideration in sentencing. There are too many things involved. I guess I suppose I’m mainly interested in what causes a person to do this. Will he benefit if you give him another chance? Does he need any special terms or conditions of probation? Do you put him in some sort of a program, whether it’s a drug program or some other kind of psychiatric counseling or something? There are many things. We don’t really have the facilities to do good, competent, qualified investigative work into a person’s background so that we can make the proper determination. These people that I send to the doctor, I pay the doctor through the county. Most of the people can’t afford it, but I need an evaluation for myself.

Marchiafava
1:23:41.8 Does he specialize in this type?

Price
He does an awful lot of it, yeah—an awful lot. I have a funny feeling about psychiatrists. I don’t really like psychiatrists generally, overall. I hate to say this, but I think most psychiatrists become psychiatrists because they associate their own lives—their own problems—with what they’re studying and reading. They become extremely engrossed in this, so they become psychiatrists. I think they’re probably the biggest divorce rate and suicidal rate of any professional group around. I picked on who I think is fairly competent. He’s been divorced, but so far he hasn’t committed suicide. But he is competent, and he won’t give anything that you want to hear; he’ll give you what he thinks is proper. I used him when I was on the defense. I didn’t get what I would have like to have had as far as representing my client, but I got an honest opinion, and I couldn’t ask for anything more than an honest opinion. When it came to disposing of the case, his opinion was helpful at arriving at the proper alternative for what we were going to do with that particular issue. So the person benefitted from it, as they should.

Marchiafava
What can a judge do if a man is convicted because of a bad law and his sentence is much harsher than you would like to see? Is there anything?

Price
Well, you hope the situation never occurs. I can think of one situation where a jury gave a man 8 years. I wouldn’t have given him that much time. I haven’t done anything about it and I won’t because they did what they felt was proper. I’m not saying it’s not proper. I’m just saying I wouldn’t have done the same thing. Once again, you have to follow the law. Each judge has his own peculiarities and his own idiosyncrasies and his own philosophies. He’s probably going to make his own decisions and rulings based on that. Sometimes these things may conflict with the law. So it’s difficult to answer the question. If you think justice was done you can grant a motion for new trial. There’s really not a whole lot you can do. You can grant a motion for new trial, or if it’s in the area of punishment—you feel a man should have gotten probation but didn’t, but his punishment wasn’t in excess of 10 years—you can always come back and probate it. But other than that, there probably—well, if you’ve got a motion for new trial you’d start over again.

Marchiafava
1:27:19.3 I suppose the laws that comes to mind most frequently are the marijuana laws, where the man gets sentenced for 10-15 years possession of marijuana.

Price
Yeah. The only problem with that situation is I just really feel that people just don’t know enough about marijuana to make a competent judgment. It’s been reduced to a misdemeanor obviously. I think, personally, that juries are maybe a lot smarter than people give them credit for and they will adjust these things in their verdicts. Since we’ve had the law changed, I’ve never seen—in fact, it’s really kind of hard to get a conviction on marijuana cases. I think the prosecutors are taking a different attitude toward it. I think the judges are taking a different attitude towards it, typically because they don’t know. If it’s something that is not going to be a danger to one’s health or something, you wouldn’t want to punish somebody to the same degree that you would if they were involved with heroin or something that they pretty well know is. But I suppose that if a judge wanted to do anything if it was just really unjust, he could just grant a motion for new trial—tell the lawyer if you file one, I’ll grant it.

Marchiafava
Well, let’s close the interview with one grim question, I suppose. What do you think of the death penalty?

Price
Well, I would have to say that I am in favor of the death penalty, obviously if it’s properly administered. I’m not sure it would be proper to try to expand on that remark. I think we have some people who are so totally amoral, who commit such horrible crimes, that there is no way that they could ever be brought into society as a productive member, and to select the alternative of locking them up forever—and I mean forever with no chance of parole—is cruel and inhumane. I just think that there are certain situation and certain people that punishment would fit.

Marchiafava
1:30:16.4 Are you satisfied with the new guidelines?

Price
Yeah, but I was satisfied under the old law. So it’s not going to be until they get up to the Supreme Court. Look, I would really, really be surprised if they ever execute anybody who was given the death penalty since. Simply because you have too many federal judges who will grant stay after stay after stay, and they don’t have to answer to anybody. Federal judges probably have the most powerful positions in the country today. They’ve got a bunch of power. If they make a bad decision or people hate them or whatever, who cares? What can you do about it? I would really, really bet that not anybody will get executed. It will really be surprising if they ever did, even though we have the death penalty.

Marchiafava
Are there any thoughts that you would like to add pertaining to certain areas that I may have overlooked?

Price
I can’t think of anything right now. Gosh, I don’t know. I don’t really have anything. I enjoy talking to people, and if I can be of any assistance or help or educate them into what I’m doing or what I’m trying to do or what I would like to do, I’d like do it. I can’t think of anything else that would be appropriate to say at this point.

Marchiafava
On behalf of the Houston Metropolitan Archives, I’d like to thank you for a very stimulating and interesting conversation.

Price
Thank you. I don’t know how stimulating it was.

(1:32:58.2) end of audio