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Interview with: James V. Garrett
Interviewed by: Louis Marchiafava
Date: December, 2 1974
Archive Number: OH 061
I: (00:18) Mr Garrett, I wonder if we could get some information about your background, like, are you a native Houstonian?
JG: No, I’m from East Texas, which is down below Texarkana. A place called Atlanta, Texas.
I: Where did you receive your education?
JG: All right. I got a bachelor’s degree in business from the University of Southwestern Louisiana in 1963, a master’s in criminology and corrections from Sam Houston University in 1974, and a Doctor of Jurisprudence from the University of Houston/Bates College of Law in 1971.
I: What led you into the study of law?
JG: Well, I was 29 years old and had three kids before I decided to go back to law school. It was just something that I had wanted to do for a long time, and I let the service—five years in the Air Force—interrupt my career. I just decided that I was not going to be happy until I tried law school, so I packed up the family and moved from Oklahoma City to Houston with the idea of going to law school. No family in law or whatever.
I: That’s what I had been wondering about was whether it was a family tradition or whether it was some other motivation.
JG: None whatever, a whole family of sharecroppers if you get right down to it.
I: What was your impression of law school?
JG: I guess the first semester or the first year is a rather frightening process, because you are competing with a lot of people that have different backgrounds, and they are total strangers to you. You’re not sure whether you can do it, but then after the first year it’s not so bad. They say in law school that the first year will scare you to death, the second year they work you to death, and the third year they bore you to death. And basically, I guess, it pretty much runs that way. They work you harder your second year, because you know more about what you are doing, your capabilities, but then after that second year you have everything well under control. You know what you are doing, and your studies don’t take as long as they did for the first year or two. You can get through your cases quicker. Then the third year you are just waiting to get out, waiting to take the bar, which of course the whole thing culminates with the bar in Texas. You must pass all phases of the bar or you don’t pass at all.
I: Do you feel that law school provided you with the necessary tools for going out and practicing?
JG: Of course, at that point in time—I started law school back in 1969—I had no background to draw from. Therefore, I did not know whether I was being given an adequate education or not. I think the University of Houston at that time—and it’s probably still true, although, it may be becoming more nuts and bolts or more practical oriented as time goes on—is structured too much on the academic side and too little on the practical side. They don’t even—if I had not gotten into a program that allowed me to become an intern with the district attorney’s office I would have literally graduated from law school without ever having known where the courthouse is. I knew a great deal of theory about law, but I didn’t know anything about the nuts and bolts. No courses to put me in a courtroom to show me what actually went on in court. They told you about it. They told you the theory behind the law, but none of the nuts and bolts of it. Now as I understand it, the South Texas College of Law is just the opposite. They are a little bit short on theory, but they are long on the practical application. They have their students, most of whom are part-time students at night, in and out of the courtrooms a lot. They offer intern programs for credit that allow the students to come to the courthouse and find out what’s going on. But the students that I’ve talked to, who are now alumni of South Texas, indicate that they felt they were cheated a little bit on theory. So, I guess, somewhere between the two there is a happy medium.
I: What changes would you specifically like to see in the training of young lawyers that would assist them in practicing?
JG: I definitely think that in the third year a law student should be given the opportunity to either work for a law firm as defense lawyers or for a prosecutor’s staff as a clerk to learn the system. So they can find out where the paper comes from and where it goes and what happens to it in between, because if they don’t they’ll get out and try to represent people—this is particularly true on the criminal side, which of course is my real long suit—they’ll think they’re doing a good job, because in theory they know how to work, but they still, again, don’t know the practicalities, and as a result they cheat themselves out of a lot of time, and they cheat their clients, because they simply do not know how the system works. In order to work a system well you have to know how it works.
I: There is a trend amongst some law schools now to become involved in the disciplinary process, like where a law student attends classes in history and sociology, while at the same time studying law. How do you feel about that? Do you think that would benefit the law student?
JG: No, I think that most students bring that basic knowledge with them to law school. I think it has to be assumed that there is a background in the social studies before you get into law school. I don’t think that in the law school curriculum there is room for it now. If we want to do anything we might make it part of the undergraduate requirements to get into law school, but I don’t think the curriculum. I think the 90 hours that you need for law school graduation—or 88 in some cases—I think all those are pretty well filled up with law courses that are necessary to a student’s passing of the bar and practicing law and adequately representing his clients. I don’t think at this point in time with a 3-year program that there is enough room to put it in. Although, I think that they do need the background, but I think we just have to assume that they have it.
I: There’s a program that has just been launched this year where law students from the University of Houston also enroll in history courses at Rice University, specifically in the area of law and the Constitution. They receive an MA degree if they successfully complete the courses and also receive their law degree. With that kind of specialized program—(overlapping)
JG: (overlapping) Yeah, I think you could work that in there without any problem. I would have no objections to that at all, because you are still in the area of constitutional law, which you are going to have at least 6 hours—sometimes 9 hours—of constitutional law in law school. So you are just really becoming further specialized in that area of the law.
I: What area of law did you specialize in during law school?
JG: No specialty. I just took the general curriculum that everybody else took, which most students in law school just take a general curriculum. There are only a few electives that would allow you to even call yourself “specializing in.” There is no specialty, as such, in law school. You might find that you could take an extra criminal course or an extra course in some such thing, but there is really no specialty. Everybody comes out of law school with basically the same background.
I: You served as an assistant DA. How were you selected for that job?
JG: (8:59) This was part of a program that I got into my third year in law school—well, just at the end of my second year in law school. A program came into being that was funded by the federal government—an LEAA grant—whereby the Harris County District Attorney’s Office was able to hire six law students. They tried to pick two first year students, two second year students, and two third year students, so that there would be only two graduating at any given time or any given semester. This way there would always be four constantly working, two coming in and two going out with a total of six in the system. I simply applied for the program and was accepted. I became one of the two that first came into the program. A man by the name of Sam Lozano and I were hired into the program at the same time, graduated at the same time, passed the bar, and were both offered positions as assistants. As a matter of fact, to my knowledge, at this point in time—that has been since 1971—I think every intern who has gone through that program has been offered a job by the DA’s office. A couple have not accepted, but they were offered jobs.
I: How long did you hold that position?
JG: I stayed in it for almost a year. As a matter of fact, when I was mentored by Roland Dowling—I was working as his assistant in the misdemeanor section, kind of his gofer—and I was just learning everything. Primarily working in and out of the clerk’s office, running errands for him, filing cases, occasionally writing briefs for him. Generally I was just learning how the system works, which I found to be invaluable, because at that time I came onto the staff as a fulltime member—at the same time Sam came on—we saw other people coming on right out of law school, and it took them quite a while to develop the background that we had. Therefore, we were immediately effective, whereas it took them a while longer, because they did not have the administrative procedural background that we had.
I: After working in the system in the prosecutor’s office I imagine you developed some insights, and I’d like to ask you what is your opinion of the judicial system as it operates in Harris County?
JG: Well, with a broad sweep of the brush, I suppose, given the tools that we have to work with and under the set of circumstances under which we work that it works about as well as could be expected. It needs some overhauling, but it’s in the process. It’s just a slow process to try to get the system overhauled.
I: Where are the major weaknesses?
JG: At this point in time, I think the major weakness in the court system is the lack of a presiding judge. There is no presiding judge in Harris County. It’s rotated. The presiding judge, if I’m not mistaken, is presiding judge for 1 month, so that each of the district judges will at one time during the year be presiding judge, which does not lead to a possession of leadership, because if you lean on one of the other judges when you’re presiding judge then, of course, you can expect the same treatment when he is presiding judge, knowing full well that he will be. Most jurisdictions have multiple judges on the same level, but they have one judge—usually the senior judge—designated as the presiding judge, and he controls, basically, the court system. We’ll say we have two cases that need to go to trial on a given day and in a given court. Well, they can only try one at a time. The presiding judge’s function is to look around and see if judge “X” over here is doing anything. If he is open and doesn’t have any trials then the presiding judge will order the second case that is waiting to go to trial removed to the court where there is no activity and get a trial started there. If he sees a caseload is getting to heavy in 1 court then he will have some of the cases transferred. He’s just generally the administrative manager of the whole system. In Harris County there is no such manager.
I: There have been stories in the newspapers, on occasion, that many who have their charges dropped or who were found innocent had actually stayed over a year in prison waiting for their trial. Is this common?
JG: I don’t think it’s common, but it does happen from time to time. The people who suffer most from being in jail are the people who cannot make a bond. The reason to hold people in jail while they are awaiting trial is to assure their appearance in court. You can also do the same thing by making a bond, which means that some individual—whether the defendant himself or whether the defendant pays a surety who does this as a profession—puts up money with the court to guarantee the defendant’s presence in court. Now most people, fortunately, are able to do this. They are able to either put the money up themselves or hire a surety, usually for 10 percent of the amount demanded by the court, to put up the money in their stead. If they do not show up in court then the money is forfeited to the coffers of the county, and a warrant is reissued for this person’s arrest. So he by no means gets off scot-free simply because his bond is forfeited. It just means that he didn’t show up in court, that bond is forfeited, the money goes to Harris County, and a new warrant is issued for his arrest. If, however, the person is unable to put up this money—or property as the case may be—then he has to remain in jail so the court will know that he will be in court. The advent of the pretrial release service—oh, I would say, 18 months to 2 years ago—has alleviated a lot of these situations. Many people are now able to gain release on their personal recognizance if on pretrial release interviews it is determined that because of their association with the community, like, the fact that they own a home here, the fact that they have family here, they’ve been in the community for a long time, they have a job here, just, generally, the people who are not likely to run, if they recommend to the trial judges that these people be released on their own recognizance then most of the trial judges will release these people on their own recognizance. This, again, helps cut down the population in the jail. But there are still some people who do not qualify for personal recognizance or PR bond, and they do not have the money to make a surety bond, and these people unfortunately have to stay in jail.
I: Do you think the bail bond system needs serious overhauling or reform?
JG: (16:56) Yeah, it has to be overhauled; there is no question about that. You’re punishing people because of the bond system, I mean, that’s what it amounts to. You’re punishing them because they are arrested and charged, not because they have been found guilty, but because they have been charged. You’re causing many individuals to pay large amounts of money just to regain their freedom until they can get into the court. Then have the trial court—a judge or jury—actually determine whether they are guilty or innocent of the offense they are charged with. There are a lot of plans and several of them have been tried. There is the Illinois Plan, which is basically a personal recognizance bond that has achieved some popularity. A modified form of it is being used in New York. The Illinois Plan basically says that if a man has a bond set at $1000 then he puts up—not a bondsman—10 percent of that. Now, normally in Texas a person has to pay a bondsman 10 percent of his bond, and that’s money he just pays the bondsman for running the risk of putting up the money, so using a $1000 bond in Texas, he would just have to pay $100 to have a bondsman put up $1000. Then the bondsman gets his money back after the case has been disposed of or if the defendant does not show up in court then the bondsman loses his $1000, pure and simple. In either case the defendant will never get his $100 back. The Illinois Plan would have the defendant himself putting up the $100 with the county. When his case is disposed of—either by a plea or an acquittal—then he would get back $90 of that $100. The extra 1 percent that is kept by the state or county is simply an administrative or service charge. So, really, a person could be charged and then later acquitted, but it would only cost him, say, $10 on a felony bond of a thousand.
I: How do bondsmen make contact with arrested parties?
JG: I think here in Harris County since they formed the Association of Professional Bondsmen and kind of cleaned up the bonding industry, which was over a year ago, I think, most of them are very legitimate contacts where people simply call from the jail from a list provided them, which is simply in alphabetical order listing all the approved bondsmen. They just pick the name. Some of them, I understand from the bondsman, call simply because they come from a family or socioeconomic group of people who are in trouble constantly and have used them before. I don’t think there is too much solicitation anymore, like where a bondsman hangs around the jail and sees people down visiting and walks up to them and says, “I’m a bondsman. Do you have a problem?” That is unethical for them to do, but it used to be fairly widespread, but I don’t think it is anymore. I think most of the reputable bondsmen here that are approved in Harris County are, for the most part, on the up an up.
I: Back before the changes was it common to have contacts inside the city jail, like, a policeman would recommend a certain bondsman for a percentage—(overlapping)
JG: (20:51) That happened a good bit, but it wasn’t as prevalent for police officers to do it because their job has always been on the line if they were caught doing anything like that, but it did happen from time to time. There was a lot of people that hung around jails waiting to see people going in and out. They would just walk up and say, “Hey, I’m with XYZ bonding company. Can I help you?” To most people who have never been arrested before they don’t know which way to turn. Somebody walks up and starts talking to them, and they tell them that they are a bondsman, I mean, it’s just somebody offering to help them, and they don’t know any different. They don’t know that this guy is in it strictly for his own benefit.
I: Why do lawyers become prosecutors? Is it strictly for the training or to learn the advantages from the prosecutor’s point of view?
JG: I think both reasons enter into it. One, it’s an excellent training ground for a trial lawyer; obviously, if you work for a district attorney you are going to get a lot of trial experience. Second, if you are ever to function well as a defense attorney you need to know both sides. You can handle your opposition best if you have been in his shoes before, and you know under those same set of circumstances, generally, what guidelines he’s operating under, and how much discretion he has. I think you would have to say both, and of course, some people—and I dare say, a good many more—would stay in the prosecutor’s office if they were paid enough to stay there as a career. Unfortunately, most prosecutors are not able to pay their assistants enough to make it conducive to think of it as a career.
I: How many assistants does a district attorney in Houston employ approximately?
JG: Let me think. The last count I heard was about 112. That may be up some, because that’s been 3 or 4 months ago that I heard that figure used. I don’t know if they have created new slots since that time or not. I would say around 115.
I: Is that adequate for the task in Harris County?
JG: At this point in time or at the time I left the office, which was June 1st, it was. Carol Vance, the district attorney here, is a good manager, and Carol and Roland Dowling—the man I spoke of a while ago, who is his chief of operations for the last couple of years—used a lot of paralegal people to fill positions that had been strictly prosecutor filled positions. Taking the qualified, fully trained lawyer out of some positions and filled them with administrative people. People who still understood the system, but were not lawyers, and these were primarily administrative positions, which for years had been filled with lawyers, but they found that it was not necessary.
I: From what you said a few moments ago, I would assume that there is a large turnover in the DA’s office, is that correct?
JG: Yeah, there is.
I: How does this affect it? Wouldn’t this have a serious affect on the judicial process?
JG: Not really, because your average stay in the district attorney’s office, as I understand it, is about 2-3 years. Your new prosecutors are brought into a court at the lowest level. Most courts are staffed with three prosecutors per court. You have the chief, the number 2 man, and the number 3 man, therefore, your new prosecutors are brought in as a number 3 man, and he’s headed by two guys who have experience in the system. It’s not just like you bring a brand-new man in every time somebody quits and turn him loose in the court. You don’t, because he’s well supervised and is not allowed to try his wings until the chief of his court—and sometimes even the judge will have a recommendation as to whether he feels the guy is adequately able to try a case or not—but certainly the chief of the court does. So I don’t think it has any real detrimental affect on it, and when you get up to people who are chiefs in the district courts, which is where your felony cases, like serious murders, rapes, armed robberies are tried, these people are career oriented. These people have been in office for quite a number of years, and the chiefs and the number 2 men handle the real serious crimes. Most of the chiefs try the murders and the rapes and the serious armed robberies, so at the level where the very serious crimes are tried there is a level of competency that has been achieved over quite a number of years.
I: While you were there what was the common type of cases you would be working on?
JG: Well, I stayed in the county courts for 6 months, which at that time your felony cases began—moneywise—at $50, and anything less than that was a misdemeanor. If it was more than $50 it was a felony, like, your first offense DWIs, a lot of shopliftings, aggravated assault, which is very predominant, like husband and wife things, but nobody was ever really beat up too bad, but enough that charges could be filed. I’d say those are the three main categories handled by the county courts. I was in that position for 6 months, and then I was transferred and took over the commercial fraud division of the office. I stayed over there for 2 years, so, my function over there was strictly limited to people who—I know it’s unusual to have two functions in an office—the first was consumer fraud, which protected the consumer from the merchant. Commercial fraud served just the opposite purpose; it’s to protect the merchant from the individual, like people who write a hot check, professional or amateur kiters, and people who come up with schemes to rip people off.
I: Who gets the best performances, generally, the prosecutors for the commercial or for the consumer?
JG: (28:43) Well, up until 1974, I would say, the commercial fraud people, because they didn’t have too much legislation in this area, but with the advent of the new penal code there has been a lot of consumer oriented legislation passed. I would imagine they are running pretty close now. They are getting an awful lot of convictions on the consumer fraud side, especially because they now have the tools to do it. Of course, consumer fraud, I guess, is a little bit more preventative compared to commercial fraud, because it’s hard to prevent individuals from trying to steal from stores via hot checks, shoplifting, whatever, but when you start making headlines with prosecuting a giant store for cheating the public then you tend to get publicity, and that stops a lot of other people who might be bent on the same thing. I think you have more preventative type law in that area compared to the commercial fraud area.
I: Do most cases that you worked on or are familiar with ever actually reach the courtroom?
JG: Yes, they reached the courtroom, but most of them don’t go to trial.
I: Why is that?
JG: Simply because the court system couldn’t handle it. As a prosecutor you have to be aware of your docket and moving your cases. Therefore, you make people offers or deals on pleas of guilty to induce them to plead guilty, so you don’t have to try the case, so it doesn’t take up 2 or 3 days of the court’s time. If the man is obviously guilty we’ll say we’ve got a penalty range from 2-10. Now, if he gets convicted by a jury then their range of punishment is going to be anywhere from 2 years to 10 years, and he doesn’t know what he’s going to get. There is no way to know whether this jury will give him 2 or this jury will give him 10, because the next one might do just the opposite. So you’re in a position to offer him say 2 years or 3 years, and he knows what he is going to get when he goes up there. Now, he also knows he’s going to get it, but if the state has a solid case against him then there is no point in trying it anyway, because chances are he will be convicted. So why not take the lesser sentence from his standpoint? Take the lesser sentence and go ahead and plead guilty to it, and know what you are going to get instead of running the risk of the jury finding you guilty, which they probably will if the state has a strong case, and the jury giving you the maximum. From the state’s standpoint you’ve taken the guy out of circulation, you’ve put him in the pen for 2-3 years or whatever, you’ve not run any risk at all for losing the case, and you’ve been able to move another case.
I: Do you think justice has been served though in this manner? There was a book written a short time ago, Justice without Trial, it said that the defendants are being deprived of their right to a jury trial.
JG: (32:22) No, they can have the jury trial if they want it. They can turn down every offer that the state makes. They are not coerced into it.
I: They’re not? They’re not frightened into it?
JG: I think, probably, at times—when I say they are not coerced, I mean in the true sense of the word coerced. They are not coerced, but the state is able to offer them such a good deal that, often, they will take it instead of running the risk of a jury trial, whereas perhaps they really should. Of course, that decision has to be made by the defendant. The lawyers can’t make that decision. I would agree with that thesis that defendants are at times deprived of their right to a trial, and that maybe justice is not being dispersed equally and with an even hand, but the alternative is that you let all the defendants go to trial that want to, and you don’t make any offers. Then you got a jury sentencing with absolutely no guides whatsoever, and you are running into the situation from time to time—every once in a while you will see it in the newspaper—where two defendants with almost identical backgrounds, charged with the same offense, will draw awfully different sentences from different juries. Jury “A” might give defendant “A” 2 years, but defendant “B” might get 10 years from jury “B” simply because the people making up the jury or the different trial lawyers involved. I don’t know that you can really criticize the system that much when you see the alternative. Now if there were some sort of evening factor involved or if there were legislation that would be a viable alternative, because then a guy knows if he’s convicted let the state try to prove beyond a reasonable doubt that he’s guilty, because he knows if he’s found guilty he’s going to get “X” number of years, and he knows if he pleads guilty he’s going to get that same number of years. But then you are going to have to try every one of the 18,000 cases that are filed into the system every year, because everybody will insist on a jury trial. A jury trial takes time, which would take more courts. We have 12 district courts now, and it would probably take—just a guess—50 to keep them moving, because if a man had nothing to lose by a jury trial then he would certainly insist on it. He would never plead guilty. I don’t know what the answer is.
I: Are juries generally tough or lenient? I know that’s difficult, because it depends on the defense, but from where you were standing or in your experiences?
JG: Juries are less likely to convict than our judges. They, however, hand out slightly longer sentences than judges, but they give probation more often than judges. It just so happens that I wrote my thesis on comparison of jury and judge sentencing, and I selected felony cases in Harris County in the period of 1972-1973, and this is what I found out from my study. I’ve not found anything to contradict that. The only conclusion that I can draw from it is the reason juries are less likely to convict is that it’s simply harder to get 12 people to agree on anything compared to 1. A judge becomes fairly hardened. The reason for juries giving longer sentences, I think, is, again, the agreement factor. On an average jury you will have one person who does not think the person should get the maximum penalty or get a long time in the penitentiary, and they want to give them some lesser time, so you have to compromise. Every jury has its own personality, and you’ll find, unfortunately, that some people have voted for guilty that didn’t really want to, with the idea that they wouldn’t give them much punishment, like the idea of giving them probation. You try to keep those people from doing that. You try to talk them out of doing that on jury argument, but there are still some who are really not convinced beyond a reasonable doubt, but they will go along with the rest of the crowd, even knowing they are going to be in on the punishment stage, and that is where they are going to hold out for a lesser punishment, which in their mind rights the wrong of voting guilty when they are not really convinced beyond a reasonable doubt. I’m not sure what causes juries to give probation more often than judges. Not sure at all. I think, again, the same factor may enter into it that people aren’t completely sure that they are guilty, so they compromise. I think a prime example—do you remember the case, Koontz, where the two men murdered the grandmother and stuck the little granddaughter in the toilet?
JG: (39:03) Do you remember one of those men pled for life, and the other man was tried twice, once for killing the granddaughter and once for killing the grandmother and was given probation by two separate juries. He was given 10 years probation by one and 5 by the other. I think that’s a prime example of where a jury had to find a man guilty. He was there, and he was an accomplice, although the testimony showed that he was outside—this is the man that got the probation. He was outside when the actual murder took place. The other man did the murder. He had gone there with him to steal some stuff, but apparently—he convinced a jury of this—he had no knowledge that there was going to be a murder and was outside when the murder took place. Therefore, the fact that he went there to commit felony theft, and he was an accomplice they knew he had to be held responsible for their murder, but even though they had to find him guilty they only gave him probation, because in their mind they felt it would have been right, because he really didn’t go there with the intent and purpose to murder those people. I think that explains that pretty well, and most lawyers I know feel the same way, because I think the public, generally, was appalled that that verdict was handed down.
I: Do juries have the necessary knowledge before serving to make them competent enough for the important job they have?
JG: No. I think a jury is competent to determine guilt or innocence. I think our system is set up well for that. I mean there are a few things that could be improved on, but for the most part, I think, they are competent to determine guilt or innocence. However, they are totally incompetent to determine sentence. They know nothing about that man’s background other than what they are going to hear on the stands, which is very little. I just don’t think they have the tools that are necessary. (audio goes out 41:12) That pretty well exhausts that area.
I: There was some mention made a while back of private companies doing research on potential jurors before being selected; in other words, they would either do the background research for the prosecutor or for the defense attorney. Do you know of this practice?
JG: I heard a while back or read an article that somebody was doing it in some state. It does seem that in some grandiose murder case that a flamboyant member of the bar had obtained a sociologist, as I recall, to help him select his members of the jury. To help him determine, as best he could, through a program that had been set up on a computer that was fed with the limited knowledge that they had and the data that was available, which jurors would be most likely to convict, which would be most likely to acquit based on race, sex, age, religion, and several other factors. I don’t think that out of that particular trial there were any results. There usually isn’t out of any isolated incident. But yes, I have heard of the practice.
I: Does it occur here in Harris County?
JG: No, I have never known it to occur. The cost would be prohibititive.
I: As a prosecutor is there a tension between the ideal of justice and winning a case?
JG: Yes, there always is. Yes, there is always the temptation, if you will, to push a little bit harder than you should to win. When you know that, really, your function is to see that justice is served, because it is the whole criminal justice system, as it now exists, as an adversary system. You must assume for the system to work correctly that the lawyers representing either side are equally matched, which often is not true at all. You have the temptation—I’ve had the temptation to lean on a lawyer that I didn’t like a little bit more than one I did, like, one going out of his way to be horsey with me. You just have to constantly remind yourself that it’s the defendant and not the lawyer that is going to be hurt. You have to let his case go just like everybody else’s case.
I: Are there many cases where a prosecutor may feel that the defendant is actually innocent, but will push to have him convicted simply to win a case?
JG: No, I don’t think so. Now, I think the only time that you would see that situation—frankly, I don’t remember having seen it, but it could arise easily enough—is that you might have a defendant in a given case that you thought, probably, was innocent in that case, but you have him on other cases that you are just convinced beyond a reasonable doubt that the man is guilty. You might be trying the weak case first, and try to push for a win there, because you know if you get him convicted in that case you don’t have to try the other ones. Otherwise, you are just going to have to try the second or third one, which you will probably convict him on anyway. That could happen, yeah. I don’t think that happens frequently, because normally the state is at liberty to pick their best case if they have multiple cases against a defendant, and they simply pick the strongest case to go on. But I think if you had that situation then it could happen, yeah.
I: Do prosecutors ever attempt to make deals with the judges on a particular case?
JG: (46:01) No, absolutely not. You get to know your judge pretty well when you’ve been in his court for awhile, but you’ll find that most judges just won’t talk to you off the bench about the facts of a case. They know how you react. I think maybe over a period of time, if they like you, they might be a little bit partial to you in their rulings, but they know that the defense always has the ability to appeal their decisions, so most of them try to be fair. They really do. I think the bad judges are not judges who are dishonest knowingly, but they are just judges who don’t know much law and simply rule badly.
I: Do we have many judges like that in Harris County?
JG: At this point in time, not many, I mean, no more than the nation as a whole. Of course, some judges are stronger than others. We have some superb judges here, and then we have some that don’t know a whole heck of a lot of law, as compared to good trial lawyers.
I: Who would you consider the superb judges?
JG: Right now I would say the best two judges here are I.D. McMaster and Pete Moore. They are two district judges. They probably know more law and will give you the best trial of anybody there, and both of them, strangely enough, came out of the district attorney’s office. I.D.’s background was, I think, 13 years with the DA’s office and 11 years in private practice. Judge Moore was first assistant when he was appointed to that bench over there but is an extraordinarily fair individual.
I: Do you care to mention any of those that are lacking?
JG: (48:06) No, I will pass. (both laughing)
I: How would you rate Mr. Carol Vance’s performances to date?
JG: I think Carol is one of the best district attorneys in the country. I really, really do. I have the greatest admiration and respect for him. If you’ll notice—if you get to know Carol or see his resume—the man has been active in every organization on every level. He is either president- elect, past president, or current president of every national or state or local District Attorney’s Association. He is very progressive. He does not try to interfere with the day to day workings of the court. That’s one thing I’ve got to say about him is that in the time that I was with the DA’s office—almost 3 years—I never had it happen to me and I never saw Carol intervene on behalf of anybody. He did not go to anybody and say, “Dismiss this case, this is a friend of mine,” or the things that you normally expect. He stays out of the workings of the court. He has people working for him whose business it is to see that the court functions are moving. He puts that responsibility in them and holds them responsible. Carol is a figurehead, and he is constantly going places, picking up new ideas, bringing them back, sounding them out, trying them, and I think he is very, very progressive. I think he has done more for this office than anybody ever has.
The thing that he has done that is most notable—that’s not to minimize any of his other achievements—but he raised the pay scale here and cut down the turnover of the assistants, to the point that in 1969 the starting salary was somewhere around $600, and by 1971 the starting salary was up to $900 a month, which was competitive with everyone except the very large firms here in town that take only the top 10 percent of the students. At that time they were only making about $1100. He has done a tremendous selling job for the need to pay prosecutors in order to keep them on and cut down the turnover. As I understand, when he took over the office the average prosecutor stay was 18 months, and as I indicated it is around 3 years now.
I: There was a case a month or so ago which received some criticism because of his public pronouncement concerning the guilt of the defendants; you may recall that. The case involved several Mexican-Americans. Is—(overlapping)
JG: (overlapping) I’m trying to think. Was this the Brady Bunch thing?
JG: I don’t think Carol made those statements. It was one of his assistants, I believe. I think I know exactly what you are talking about, and it was a chief of a court who made the statements. I think they were just ill-conceived and ill-advised. It was a statement that people will from time to time make. Carol is usually very careful about what he says, especially anything that would prejudice a case. During the time that the Houston Police Department was giving entirely too much publicity on the mass murders, I think Carol handled that very well, and he was awfully quiet and did not release anything to the press that would be prejudicial when the thing came to trial.
I: In the last 10 or 15 years there have been a series of Supreme Court decisions which have had quite a great impact on criminal justice. One of them is the Miranda Decision. Do you feel that the ruling has been adhered to? Had there been an impact on the courts?
JG: (53:00) Oh, sure Miranda definitely had a big impact when it was first decreed, but over a period of time there have been exceptions gradually carved out of the doctrine. The basic doctrine simply says that if a person is in custody, and has either been charged or is about to be charged because the finger of suspicion is pointed at him, then he has to be advised that he has certain rights. Such as the right to an attorney, the right to be appointed an attorney if he is unable to afford one, and there are certain inroads being cut into that. It was handed down from the warrant court. So the impact is less now compared to before, but initially when it came out it had a very strong impact on the courts. Many cases that were previously winnable were all of a sudden no longer winnable, because the statements that people had made in custody when they were cut off from the general public and not advised that they had any rights at all—as a matter of fact they had no rights or were told nothing. They were simply interrogated. All those cases with all those statements that people made at that time were no longer usable. I think, really, it was a good decision from both sides of the—what I’m trying to say is that as a prosecutor you couldn’t say that it was a good decision, because it cut down the number of cases you could have won, and some people who admitted guilt or implicated themselves in their own statements that were guilty walked away. But from the defense standpoint there were an awful lot of people who said a lot of things not voluntarily given under their own free will. I think if you just view the whole criminal justice system as a whole instead of as a prosecutor or a defense attorney you would have to say that it was a good decision because it did promote the ends of justice, I think, in the long run.
I: How do you rate the Houston Police Department in its investigations, gathering evidence, adhering to the legal procedures?
JG: I think, probably, that they are about as good as any compatible police department. It’s awful hard to supervise that many people. They have, like 2000 or 2500 or whatever they have right now. For the most part, I think, they are quite good.
I: Is there much communication between the DA’s office and the police regarding various rulings and procedures?
JG: This is one of the things that, again, Carol instigated along with Roland Dowling. He brought about a great deal of communication that was previously lacking. It was about 2 years ago when they started what is now known as the Intake System. This is where police officers no longer just file their cases with the JP clerk; they now have to go through an assistant district attorney, who at that time tries to screen the trashy cases—the bad cases, the cases that won’t make it when they get there anyway—out of the system before they are ever filed. Previously, big cases had to go all the way through the grand jury, through indictment, all the way into the trial court before some prosecutor sat down and read the case and said, “There is a necessary element of this case that is missing. There is no way that we can make it. Put it on the docket and dismiss it.” In the meantime, you’ve had this case working its way through the system and being handled a number of times. You’ve had either an innocent or a person who the state could not prove was guilty beyond a reasonable doubt having to make bond, being on bond, reporting to a bondsman, being out that money, and hiring an attorney as this case progressed through the system only to get it thrown out when it finally got to trial court. Now these cases are being screened in initially, so you find there is a lot more interplay between the police officers and the district attorney’s office because there is now an assistant there who says, “Officer Jones, we can’t make this case because,” not a police officer who finds out 2 months later that his case was dismissed, and he doesn’t know why. At first there was a certain amount of animosity. The police officers thought that the DA’s office just didn’t want to file a lot of cases, but as they became more and more educated to why the district attorneys were acting the way they did, I think it’s built up a good relationship and seems to be working well.
I: What is the quality of public defenders? Are they good lawyers?
JG: There is no such thing in a state court as a public defender system in Harris County. As far as I know, there is not one in Texas. Now the southern district here and the federal courts are just instituting the program. As I understand, for the most part they are just advocates on the other side of the prosecutors. They are just hired to be defense lawyers and paid a certain stated salary as opposed to an individual having the ability or freedom to choose his lawyer. And of course, on the state’s system—now the only time a public defender will be used is when a person is indigent and the court so declares and appoints a public defender. Now, just because there is a public defender system does not mean that an individual can’t come in with his own lawyer. He certainly can and is encouraged to do so. This is normally the people who are in jail. If they are in jail they do not have the funds to afford a lawyer, so at the federal level now in most jurisdictions the public defender system is being used. Many of the other states are using the public defender systems at some level. Texas, as far as I know, does not have them at any of the state level courts, and we do not in Harris County. The judge in any given court that has a man in jail that can’t afford an attorney simply selects a member of the bar and appoints him to represent that person. This is just any defense lawyer. It might be me or it might be anyone of my esteemed colleagues. Unfortunately, the weakness of that system is that they will normally make a selection of the persons present in court, because they are there and it’s convenient. This is also a training place for young lawyers. Judges tend to give appointments to young lawyers, and young lawyers know that so they hang around the courthouse a lot to get appointments, because they are normally paid $50 per appearance in court, but they can’t be paid for more than one court appearance per day. But to the young lawyer who is just beginning on his own it’s fifty bucks. I think that is the weakness, but most of the judges, again, have the good common sense to see that if it is a case that needs to be handled by a more experienced lawyer they will appoint somebody who is competent to handle it.
I: I’d like to move to the very controversial topic of the death penalty. Do you think it’s useful? Do you think it accomplishes its purpose?
JG: (61:02) I’m not sure what its purpose is.
I: To act as a deterrent.
JG: As a deterrent, no. If it’s to eliminate someone so they can’t do whatever it is they did again then it certainly accomplishes that purpose. I don’t know because I have extremely mixed emotions about the death penalty. I think I’m against it. I could not—I don’t think—under any circumstances go pull that lever and watch 5000 volts go through a man strapped in a chair for whatever he had done. I just cannot see myself doing it, and if I couldn’t do it then I don’t think I should want anyone else to do it or allow anyone else to do it. Conversely, there are some crimes that are so heinous and horrible and mind-boggling that maybe society deserves its pound of flesh. I don’t know. I have very mixed emotions about it. You do have one situation that would make me lay aside all ethical and moral considerations and say that it should stay, because of its very practical application. That is in Texas, one of the ways that a person can get the electric chair is if in the process of committing a felony he commits murder. Okay, now were it not for this rule—armed robbery carries 5-99 for the potential penalty range, okay, this person goes into a store knowing if he’s caught robbing that store he could get from 5-99 years in the Texas Department of Corrections. If he has witnesses and there is no capital murder statute then why shouldn’t he kill them? Because all he can get is 5-99 anyway, and he can get 5-99 on his primary offense—the armed robbery—so why not kill them and not leave any witnesses, lessen the chances of being caught, because he can’t get anything more. From that standpoint—just the protection of society—I feel that anybody who commits a murder under the process of committing a felony, I think, that is the one area that there may be a deterrent. I think for society’s protection that one aspect should be left in. I am far more adamant on that than I am on the shooting of a police officer or fireman or guard at the Texas Department of Corrections or in the line of duty, because those people do take their chances, and they should be paid more for taking them, and they are. But at least they are aware of their chances, and I think this other statute more protects the general public.
I: Speaking with you earlier you mentioned that while you were working in the DA’s office you were involved in the development of a Subject in Process System, and I wonder if you might go into some detail about that?
JG: Okay, the Subject in Process System, or SIPS for short, is a system where all the manual records in the district clerk’s office were transferred to a computer so that all entries that are made and recorded in the clerk’s office could now be programmed. You could have dockets automatically printed out, and it just streamlined and automated a system that has existed for years and years and years. It still must exist, because in most aspects there must be, usually, a manual entry in almost everything that goes on in the district clerk’s office, but you have access to information so much quicker than you have ever had before by having the Subject in Process System. You can, for instance, have the computer kick out for you all your cases that are over a year old. You can have any attorney’s cases read out. You can have any bondsman’s cases read out. You can have all the cases in which there has been an arrest and a bond forfeiture. It gives you more tools to work with than we have ever had before, because the amount of research it would take to compile those statistics is just mind-boggling. I mean it would take tens, perhaps, hundreds of people several days to compile these kinds of statistics, which now once they are fed into the computer it keeps a running total of these things. This is information that everybody in the system needs.
I: When was the system first developed?
JG: I guess about 3 years ago was the very first semblance of a Subject in Process System. That was the first conception of the idea. They really didn’t get serious with it until about 2 years ago. That’s when they started to really work on the system. Now it has kind of leveled out in the last 6 or 8 months. At first you had those normal problems that you get into with computers, like, your program is not good, the data is bad, you’re putting junk in, you’re taking junk out, but they finally cleaned it up and refined it to the point that it’s useable now and can be relied on.
I: Do you see other expanded uses for it?
JG: Yeah, I think, not only will we have a system similar to ours—ours being Harris County’s—I think we will be able to tie into a state system or at least a metropolitan system. Then you could have interplay of information being exchanged between various metropolitan areas. That would be most helpful. It would no longer be possible for the people on probation to be arrested a second time while he’s on probation and then get through the system without being picked up, whereas under a manual system it was possible for that to happen. With a computer it will not be possible for it to happen, because it can be earmarked, and the computer will pick him up as having a previous pending case. I think there are many, many aspects of it that will be expanded upon. I think they will continue to tie the law enforcement system together, because there has been a definite lag in tying the law enforcement systems together. Houston Police Department had their own files and records. Anything a person did outside of Harris County often wouldn’t be picked up by their local records. Sometimes it would be picked up only by a small rural area, and nobody else would get it. Therefore, when this man came up and appeared again in Houston or Dallas or El Paso, they didn’t know about what he may have done up in Woodville, because that record was not available. There was an entry made in a remote district clerk’s office somewhere, but it was never tied into any kind of statewide net, and now of course, it’s getting wider and wider usage. There is a thing known as NCIC and I’m not sure exactly—It’s National Clearing House for Information or some similar name—but anyway, it’s a national clearing house of computer information that is being fed in by the states so that if this armed robber was convicted in Texas in 1960 and leaves Texas and is convicted in Montana in 1970, then Montana going through NCIC will be able to find out about this previous conviction in Texas. It used to be that if you crossed state lines 10 years ago, well, you were home free unless someone found out where you were from and wrote that local jurisdiction and asked for a rap sheet on you. They just had to hound you as a stranger.
I: Is this the same system that has come under some criticism for, perhaps, violating confidentiality?
JG: Yeah, it is. I think that if legislation has not yet been passed then it is probably in the process of being passed that will safeguard the confidentiality of this information, because there is a great potential for abuse. I think everybody is aware of it. Aware that the need of the information is vital, but the need to protect the integrity of the system is also vital, so it has to be protected.
I: When do you go into private practice?
JG: I started the 1st of June this year.
I: Do you handle mostly civil or criminal cases?
JG: Probably 80-85 percent of my practice right now is criminal.
I: Is this related to your experience in the district attorney’s office?
JG: I think so, but you never know for sure where your clients are going to come from because a lawyer cannot solicit in any way, shape, form, or fashion. You just have to sit here and wait until they call you—they being the clients. I think because most of the people I have known—people I’ve known ever since I got a law license—knew that I was in the practice of criminal law. I think those people have tended to refer other people to me. They think of me in terms of, I guess, being a criminal lawyer because I was with the DA’s office. They know that I know that end of it, and really and truthfully I have no objections to it at all. As a matter of fact, I rather enjoy it, and as long as I can make a good living at it, which is not to say get rich, but just a comfortable living from practicing criminal law. I much prefer to be litigating over people’s lives and futures than I do over money, which is what the people on the civil side do and are better rewarded for it than are criminal lawyers. Criminal lawyers have always been, kind of, the low man on the totem pole respect- and prestige-wise, because it’s always been a profession that has been frowned upon and looked down upon. But I don’t think it is that way anymore, or at least not as much so, because criminal law is not a clean practice by any stretch of the imagination. You are dealing with baby beaters and murderers and rapists, some of whom are alleged to be all those things and some who are convicted of having done those things, but the defense attorneys possession in an adversary system is to make sure that the state proves beyond a reasonable doubt that the defendant did what he is charged with doing. That’s your job; therefore, with that in mind you can defend almost anyone. You may or may not like your client. It’s not necessary to like a man to insist that he have a fair trial. I see nothing detrimental in the practice at all.
I: Does an attorney practicing criminal law accept a case when he know the person is guilty and then tries to get an innocent verdict?
JG: I understand exactly what you are saying. Who can say whether a person is guilty or innocent? I might know that you, in fact, took a shotgun and blew a big hole through somebody, and you were charged with murder. You tell me, “Yeah, I shot him, but here are the circumstances under which I shot him.” All right, I may conclude from that that it was an accidental shooting, that it was self-defense, or that it was murder. If the state concluded it was an accident than you would not have been charged. If they thought it was self-defense but were not sure of it then they would have charged you and then put the burden on you to prove that it was self-defense, and of course, if they thought it was murder they would charge you that way. Now, by talking to you I might conclude in my own mind that, “Yeah, it’s probably a murder case. He’s not going to tell me that he willfully and intentionally blew a big hole through him, and had intended to the whole time, but I think he probably did.” But if the client sticks to his story then I will make the state prove beyond a reasonable doubt that he, in fact, committed a murder. Who am I to say whether there was a murder or a shooting in self-defense or an accidental shooting? I will not allow the client to lie. That is one thing I will not do. If I know he’s going to lie then I won’t let him take the stand, but I will make the state prove their case, and make a judge or jury decide what the man is actually guilty of. They are the tryers of the facts, and they weigh the credibility of the witnesses, and are probably more objective about it than I am.
I: Do defendants generally—and I use the word loosely—confess to their lawyer?
JG: No, it’s usually—in my limited experience of 6 months now—I find it to be with the average defendant about the third interview before you really get to what you feel is the truth of the whole matter. Probably, the people who are most likely to tell you the truth the quickest are hard criminals like professional robbers, because they know they need you, and they know that for you to do the best defense job that you can for them you have got to know everything. Because they have seen lawyers surprised in courtrooms, and they have seen what the results were when a defendant didn’t tell his lawyer something that was vital to the case, whether is was good or bad. These people are much more likely to rapidly tell you everything they know about the case. As a matter of fact, it’s the people who have never been handled in the criminal justice system who are most likely to tell you what they think you want to hear, what they think would be best for you to hear, so a lot of times you just have to, over a period of time, trick them into telling you the truth about the whole thing. No trial lawyer likes to be surprised. That is the worst feeling in the world to have a witness on the stand and have him say something that you don’t know about. I mean he just all of a sudden brings up this point about Aunt Maggie standing over to the side, and that she was an eyewitness to this whole thing, and you’ve never heard about Aunt Maggie before. You just don’t like those kind of surprises.
I: How does a lawyer make contacts with—(audio breaks up 80:00)
JG: (audio picks back up 81:00)—not literally do that, but when you first open a law office you go to the courts and tell the judges that you are now in private practice, and you ask them for appointments. You hope that somebody you’ve met at a church function or something that if he gets a DWI that he thinks about knowing you and that you’re a lawyer, and he calls you. You hand a lot of people cards. That’s really the way that you build a clientele. That’s all you can do as a lawyer, ethically. Most lawyers are fairly ethical despite all the recent publicity to the contrary.
I: I don’t think there is any profession that doesn’t have its dark spots.
JG: Yeah, true.
I: What is the most lucrative area in the law profession in Harris County today?
JG: Lucrative in terms of financial gain?
JG: People who practice personal injury law. This is where you hear about the half a million dollar or quarter of a million dollar settlements from automobile accidents and that sort of thing. They are the ones who make the most money. It takes their cases 3, 4, or sometimes 5 years from the time they get a case to the time they get an award or make an out-of-court settlement. It takes a young lawyer—it’s almost impossible for him to get into that area on his own. He almost has to go with a firm that has those cases paying off that they took, again, 2 and 3 years ago. But that is where the big money is.
I: I would have thought it would have been in corporation law.
JG: No. Corporation law pays well, but not as well as personal injury law.
I: Well I know you have an appointment and it’s been getting very near that time when you are supposed to be there, so I suppose we best terminate the interview now. If there are any points that you wanted to make that I failed to ask you, please feel free to do so now.
JG: I think, really, we have covered just about everything in the whole system actually. Some of them we might not have hit with too much depth, but I think we covered just about everything.
I: On behalf of the Houston Metropolitan Archives and Research Center I want to thank you for your cooperation, it is appreciated.
JG: Well, you are quite welcome. I was glad to do it. I just didn’t realize we were eating up the time like we have.