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Interview with: Judge Miron Love
Interviewed by: Louis J. Marchiafava
Date: December 18, 1974
Archive Number: OH 107
LM: Judge Love, before you took over your present position, you were primarily a civil lawyer.
ML: That’s correct. I practiced law in a small law office from 1953 until 1958. I had no criminal cases, no criminal practice to speak of at all.
LM: How did you happen to become considered the nominee for the criminal bench?
ML: I think timing was probably more important than anything else. The judge of this court died after the primary election naming the Democratic nominee could be held, and it was after the election was held. Then the statutes then provided that the local committee designate a nominee to fill the unexpired term. I had worked in the political arena considerably during the five years when I was in private practice, as both a hobby and as a commitment to Democratic processes. The committee designated me as the nominee to fill this position as the Democratic nominee for the unexpired term for which there was no legal scheduling of an election that could be held.
The general election, of course, was called in November, and it’s at that election that I was designated as the Democratic nominee by the committee to run for this unexpired term. Then, of course, two years later I ran for the full term and have run successfully since then each 4 years.
LM: I take it then politics was a necessary component to securing the common nomination?
ML: Well, originally, I suppose it was. Traditionally, in Texas the governor names a lawyer to fill a vacancy such as this, and he did in this case also. He named Arnold Crickhammer (??), and it was just sort of that quirk of timing and the then existing law that provided the local committee named the nominee, and not the governor’s nominee for filling the unexpired term until the next general election, or filling the office until the next general election.
I might point out that that statute has been corrected or changed—I should say. Whereas, it was a smaller committee at that time, both in the 16 years since then, as well as, the statute changing the method for naming the nominee under those conditions. The politics would still be a part of it to some extent in that the political emphasis would probably be on the governor in the naming a replacement more than it would be on the local committee naming a nominee. In effect, it was because of my political activity prior to taking the bench that I was even considered by the local committee, but the politics of running for governor encompassed not only these local problems, whether it be in Harris County or any other county, on a statewide basis.
I don’t think that there’s any method, really, of selecting a judge, whether it be bar politics or statewide politics or local politics that you can get away from being active in a political sense to some extent. If it’s worked for that, well, then—I guess—the governor would have to depend upon the bar association politics, and so you’d narrow the arena for what kind of politics that you consider selecting a nominee from. I think that one is just as good. You could make an argument for either, I suppose. Although, I prefer to think that the broader base you can get your political activity, the better for selection of judges or any other public office.
LM: Now that you’ve had a chance to see how the criminal system works, how effective is it in Harris County?
ML: Well, there’s no real way to measure effectiveness, in my judgment, because there are several ingredients involved. First of all, I think that we dispose of more criminal cases today per court than we did when I first took the bench. I think the functional case load back in 1958, ‘59, and ’60 was somewhere around 750 or 800 cases a year. This year ending, I’ve disposed of over 2,200 cases. From an efficiency standpoint, I could make a good case statistically that these years of experience have improved my disposition rate threefold, but I’m not naïve enough to depend upon that, both personally or professionally.
Quite the contrary, I think that it’s important to know that the other ingredient of better law enforcement and better prosecution and better defending have also occurred during the 16 years that I’ve been on the bench. We have a better way of identifying the problem and dealing with it from an administrative standpoint. We have more administrative help now than when I originally took the bench. I think that all of these things sort of go into an evaluation that we’re really—kind of—understaffed on the judicial level from a manpower standpoint. Judging strictly from a criminal court standpoint, we are dealing with these individuals in such a summering fashion that we don’t really have a chance to do any part of the rehabilitation that I think the court needs to be more involved in.
By that, I mean simply that we have to, by the force of numbers, just delegate to the probation department or to the prosecutor or to the defense or to some other agency within our social structure here—whether it be the welfare department or others—these responsibilities for dealing with the rehabilitation of the people that come up to us. When I first took the bench, I had an awful lot more personal contact with the people actually involved in the criminal justice system. I don’t have that close rapport with nearly as many now as I did originally, and I find this a good bit of frustration.
LM: Why is that?
ML: I think that the judge is looked to by the public as being the factor for rehabilitation, whether we send them to the Texas Department of Corrections for jail or penitentiary confinement or whether we send them to the probation office as probationers or whether we defer any prosecution for a period of time to evaluate that individual. The public looks to the court, and we can’t do that effectively by having to depend upon these other agencies without knowing in detail what they’re doing with each individual person. I don’t think the public generally understands that the judge can’t devote all of his attention to one particular defendant when that may be a celebrated case or it may have acquired some newsworthy purpose or some newsworthiness—I suppose—to the press or the public.
A good example is a case that I had recently where a doctor was prosecuted for unlawful distribution of a controlled substance, and I received personal mail. I mean—it directed to my home where these people looked to me for a decision in that case that I had absolutely no part in making and that was finding him guilty by a jury. The people, I think—whether right or wrong—I’m not editorializing on the public’s right to even disagree with me—but they right or wrongly do look to the judge of the court for some of these answers that first of all, the judge is incompetent to answer because he had no part in the making of the decision.
This doctor had been found guilty by a jury, and it was left up to me to make the judgment as to what to do with him following of finding him guilty. Well, based on the available information I had, I made one decision that perhaps the members of the public that wrote me, at any rate, were quarreling about. Not my decision in the final analysis where I sentenced him, but to the finding of guilty, which I had no part in making except for I happened to be the judge presiding in the case. I think that they just misunderstand some of the functions, and it’s frustrating to work in what appears to be sort of a vacuum of the public not understanding some of the functions of the court. I don’t know whether that’s clear or not. Does it make some sense to you?
LM: You mentioned a few moments ago the prosecutors have improved and the whole system of prosecution in Harris County.
ML: Have improved?
ML: Yes, I think that.
LM: In what way?
ML: Well, I think that, first of all, they have fewer cases per prosecutor. The staff has grown. I can’t give you the figures because I don’t know them, but I know that the staff has increased in numbers per case than it was originally, although the problems have become more complex too. The salaries have improved sufficiently to attract a little better qualified and a little better equipped lawyer to handle the serious cases for the prosecution. I think that they probably run pretty close to what a typical lawyer with the kind of experience that you would expect in one of the big firms or some other private practice situation.
The rate of turnover is a lot less now in the district attorney’s office. Well, that gives them the benefit of the experience that they’ve had over the years. It’s for that reason I think that it explains the better prosecution. They are having a better experience factor in all of the district attorney’s offices—it appears to me—than they did when I first took over.
LM: The past few cases—I suppose it’s spanned a couple of years—there have been instances in which either the DA or one of his assistants have reflected publicly on a case pending in court, and the DA’s office has been criticized for this. Do you think this is a serious infringement?
ML: Well, I think that anytime that a lawyer for one of the litigants for a case that’s pending final disposition—I believe it to be unprofessional for the lawyer on either side to comment publicly. Now, I recognize at this same time that the newspapers are constantly pressing both the prosecution and the defense side of the docket for some comment concerning a newsworthy case. I think that both sides are guilty of this, but I think both sides are also guilty of unprofessional conduct when they do try to present a side of the case to the public sector that they may or may not be able to present to a jury that would be empanelled.
One side of the docket will immediately justify his comments by the fact that the other side is doing it. That’s the only way that they can get back and have an even shot at prejudicing the general public. I think if it never started in the first place, well, then it would be better to see ultimately that justice were done in the court where we demand of the jurors to come in completely impartial, and wherever possible, completely ignorant of any of the facts alleged against one side or the other.
This would apply both to the civil, as well as to a criminal case, and so I don’t think that we should limit in this context the criminal cases at all. I think that any litigation should be resolved in courts that are set up by the state to handle the ultimate dispute. That’s the ultimate forum for handling the dispute, is in the courts. This is setup by our basic constitution.
Now, I don’t mean to imply that the court of public opinion is to be ignored, but once a case is brought to a court by one side or the other—I mean—by one attorney or the other, civil, or criminal side of the docket, then that’s where it ought to be resolved. Not in the public forum, because they’ve already admitted first that if it’s a criminal prosecution that it’s something that is instituted in the name of and by authority of the state of Texas. All criminal acts are acts committed that offend the state of Texas. By constitution, they must proceed with prosecution in such a fashion and under the name and by authority of the state of Texas.
Any civil case, when the lawyer files his petition for relief with the courts that our constitution is setup to resolve the ultimate resolver of disputed fact is the court. Then he says that we want to resolve this in court, not in the forum of public opinion. It’s unseemly for a lawyer in either case to then carry his case to the forum of public opinion and attempt to prejudice a prospective juror to see his side of the case, as opposed to his prospective adversary.
Now, the defendant in most cases is never required to prove his innocence, but defense attorneys will, of course, explain to you in defense of their public statements and criticisms that they never would do it if the police didn’t try to prejudice the public opinion by making all of these allegations to the news media and so forth. Institutionally as a judge of a court, I think it is unseemly in both cases, civil, criminal—prosecution defense in the criminal side—to carry their case to the news media for distribution of some information concerning that case, where they may or may not ultimately be able to get that information to a jury.
LM: Has the present district attorney practiced this type of thing more than the previous one?
ML: Practiced what sort of thing?
LM: Presenting and making statements to the public before it has been tried in court?
ML: No, I think our present district attorney is probably a little bit more sensitive to the need for discretion than some of the previous district attorneys. Now, I don’t mean to say that I think that any prosecutor is without sin in this. I don’t mean to limit it to this particular district attorney or any of his assistants nor, for that matter, any place else in the state or country. I think that probably they lose sight of the fact that these institutions of our courts are set up to resolve the very problem. Were it not for those courts, we wouldn’t need the prosecuting attorney either.
If we’re going to go back to a police state or go to a police state, well, then the prosecutor better remember that his job is to prosecute in court and see that justice is done. I don’t think that this district attorney is particularly guilty of carrying his case to the public in any measure more than any of the previous ones. I think quite the contrary. This present district attorney is a little more sensitive to this need for resolving it in court and has demonstrated more than most of the prosecutors I’ve talked with, the sensitivity to this need to leave it to the courts and have his day in court and let the facts and the chips fall where they may.
LM: I was referring primarily to the mistake on the Brady Bunch when they were arrested. I think someone in the DA’s office said they should fry. This was certainly seeking for the death penalty. These people were certainly seeking for the death penalty or something to that effect.
ML: I’m not really acquainted with the Brady Bunch facts or—as a matter of fact—I was out of the court on vacation when most of that initially hit the news. I didn’t hear the statement or comment by his assistant or by the district attorney either, but I do think that in spite of the admonitions that I might make strictly academically that you’ve got recognize that the assistants that work for the district attorney and the district attorney, as well as defense attorney get caught up in the heat of some inquiry or investigation and may have a snap judgment as to how something should be done.
I think in more calmer reflection, and if he were to reflect a little calmer at a time when he’s not caught up in the heat of his investigation and the pressure by the news media to give some statement, that our present district attorney and most of his assistants that I’ve had any contact with would agree with me that the place to resolve these disputes is in the forum of the courts and not in the forum of public opinion.
LM: I’d like to turn for a few moments to grand juries. What is the role of a judge in selecting and directing the grand jury?
ML: The role is prescribed by statute that at a term prior to 30 days before the beginning of the next term, the judge is going to empanel a grand jury, shall name, three, four, or five grand jury commissioners. These grand jury commissioners are generally selected by the judge of that court from his own list of acquaintances and his knowledge of the people in the community. They are to be from various parts of the county or the districts in that county. I recognize that that might be awkward because this district is composed strictly of Harris County, but they are to be from various parts of the county, represented as nearly as possible of all elements and segments of the county.
This commission is directed by the judge under oath to select not less than 15 or more than 20 people to submit to him on the first day of the new term that is for grand jury service. They are to select persons that they feel are representative of the community and from diverse areas of the county, and as nearly as possible, reflect the cross section of the county. Well, I think we can recognize immediately that there’s no way to have 12 people represent the diversity of a county such as Harris County, which runs everywhere from a rural and agrarian community to a highly industrialized petro chemical complex on the one part, and labor unions and all types of religious backgrounds, young and old people, men and woman, black and white and other races, a highly complex business and banking and financial community, a community that involves air, rail, and highway transportation.
There’s no way to get 12 people from this county that’s going to reflect all of these diverse nuances of identifiable groups, but at least they’re charged to try. This commission submits then these 15 to 20 people. The first 12 on that list that qualify—that is to say they are resident electors of the county—they become the grand jury. Then the judge just names one of those 12 persons as the foreman for that grand jury for the succeeding term. This is done on the first day of the term. I think that it’s probably pretty awkward in implementing it and still be loyal to the statute to get and reflect all of the diverse entities in the county, especially one that’s as diverse as Harris County is.
There are studies made that some of the courts do a better job than others. I know that the federal system, which has the grand jurors summoned just at large from a registration list or from some other voting list of eligible citizens in the county, and they seem to function pretty well without all of the statutory admonitions about representing various and diverse groups in the county. Personally, I would opt for having this kind of a grand jury empanelled, not necessarily because I think it is better. I don’t think it is any better or worse a system, but it would remove from the judge that responsibility or feeling of responsibility that he must have some kind of control over the grand jury’s composition, because I don’t want that control.
I don’t think any of the judges particularly relish it, because there’s always the possibility of criticism of that judge that he has a certain kind of a grand jury that can be identified as his grand jury. Well, they’re not my grand jury, and they’re no other judge’s grand jury. They just happen to be serving in the court that I am the presiding officer of, and are in no way reflective of anything that I want done or don’t want done. I would much prefer they have that onus of responsibility removed by a completely at a lot or chance type selection of the panel. Then I don’t have to worry about the composition of them. I would just get on to the job of judging, instead of trying to shape a panel that would seemingly reflect the diversity a little better in the community than some other method.
LM: Some people have leveled some criticisms about your grand juries not having Chicanos on them. Is this what you were—?
ML: I’ve heard of that criticism, and I’ve also heard criticism that they’re a little more liberal or a little more diligent in some of the other things. I don’t know what these criticisms actually mean anymore, because I can’t define the terms. You have to go back to what it is the person using those terms actually means when he says liberal or conservative or reflective of what? I don’t even understand how you can have a liberal or a conservative approach to law enforcement, because there’s no liberal or conservative decisions made on the trial of any of these cases.
Never have I questioned a prosecutor or a defense attorney as to his political persuasions when he represents someone, and I’ve never had any attorney that ever asked what political party or persuasion I might adhere to as the basis for making the decision. I don’t understand how a liberal, a conservative, or other political concepts have to do with the running of a court or the administration of justice where criminal cases are concerned. I know of no liberal decisions that I have made or conservative decisions. They’re only my decisions based upon what I understand the law to be at that time when the issue is brought to my court for resolution.
LM: Perhaps it all boils down to flexibility?
ML: Well, I don’t even know whether you could be flexible and then accused of being liberal, or inflexible and being considered conservative, but, so far as I’m concerned, when I take the oath of office, I intend to, as nearly as possible, follow the law as I understand it, that’s given to us by the legislature and the cases that the court of criminal appeals of this state and the Supreme Court of the United States says the law is. I think all of the judges, having to take the same oath, try to do the same thing.
I know of no criticism directed to any of the courts that they’re not trying to follow the law. Lawyers are entitled to disagree with them and take the case on appeal, and properly so if the judge has made a mistake in calling the law as he sees it. Well, then the proper forum is to resolve it in the appellant court. I don’t really understand what the term liberal, conservative, grand jury or court, prosecution or defense, amounts to anymore. I thought at one time I did when I was much younger, but I confess by now that those terms either have changed in their meaning or have lost their meaning, so as far as I’m concerned. I’ve become so far removed from the political activity and the political functions of parties and persons in the political parties that I no longer know or believe I know what they mean.
LM: One question I wanted to ask you on the subject of liberalism, have you ever belonged to the ACLU?
ML: I’ve never belonged to the ACLU, but I was requested when I was in private practice to represent some people on behalf of the ACLU, which I did, but not as a member of the ACLU. I have been aware of ACLU’s activities on Bill of Rights types cases, and I recognize that they have a proper function in a political sense, whereas they even represent very conservative political figures, they’re more concerned, as I understand their function, with civil rights and being upheld in the courts than they are with any political persuasion.
For that reason, again, any attorney that comes into court, I never ask him if he’s a member of the ACLU or of one or the other political party. He is an attorney representing a litigant in court. I can’t remember exactly what your question was—oh, I never was a member. In fact, I certainly feel that I know what their avowed purpose is. They represented General Walker in litigation. He was accused of being quite conservative back in 5 or 10 years ago. I can’t remember specifically. They’ve represented other people that were accused of being liberal, so I think that they probably are more concerned with the Bill of Rights than they are with any of the political appellations that are placed on their clients.
LM: In your years on the bench, I’m sure by now you have drawn some conclusions about the effectiveness of the police department. Do the police here in Houston respect the rights of the accused?
ML: Of course, it’s a matter of little concern to me until I have some specific case, as to whether they are acting completely within the scope of their authority as law enforcement officers. When it comes to the attention of the court, generally is in connection with defense motions to suppress evidence because they have failed to admonish an accused, or they’ve failed to dot every i and cross every t, so far as giving them full advantage of the law that is our basic law. Now, by that I mean simply that the defense, when caught in the meat grinder of justice, are generally looking for any way out, whether it be a technicality as you might call it, or whether it be a gross miscarriage of justice. He’s going to grasp at any legal vehicle he has toward trying to avoid being prosecuted and convicted of something.
There’s an awful lot of defense criticism of the police, because the police failed to give him his rights. Well, I hate to use that term in this context because the police haven’t given him a damn thing. He has it as a citizen and as a resident in the community given to him by the constitution. The police don’t have to give him anything. They don’t have anything to give him. Quite the contrary, they have something they can take away from him, and that’s his freedom and by a formal acquisition. Well, in order to do that, the police have to follow certain requirements that the Supreme Court has said they must do and the Constitution has said they must do.
Now, if they don’t give him his rights—as they frequently testify in court—they advise him of what his rights are. There’s a lot of criticism that they don’t do this in accordance with the latest cases of the Supreme Court or the court of criminal appeals or the mandates by the bill of rights amendments to our constitution, which deals specifically with the individual’s freedom and his rights under the constitution. When the police are brought to court on a motion to suppress some evidence that the defense feels has been unlawfully obtained, the police respond—in kind—with institutionally that the courts are restricting them. They’re preventing them or hamstringing the law officers.
I think that they just don’t recognize what their real function is in the community, and that is enforcing the law and not establishing a police state. I think that there are a lot of police officers, including some chiefs that we’ve had in the past, that lose sight of their role in our society under the constitution, and that is to bring violators to the court, charge them formally, and let the facts fall wherever they may.
Now, in this connection, since the Miranda case where the supreme court set down certain standards that the police in arresting someone must follow, the number of confessions has diminished, perhaps because the police felt it was unnecessary to secure confessions in these cases, or perhaps because they improved the caliber of police. I’d like to think that both are true. I think that the police have—in fact—sort of cleaned up their act, so to speak, by improving the type of person that they recruit for police officers, and also improving their education, improving their methods of detecting.
I’m more impressed today with the young police officers with their standard of education or their attained education, as well as, the type of case they bring to court. It’s better investigated. It’s better developed, and it’s better presented. They make better witnesses than they did when I first took the bench. It’s improved immeasurably, the caliber of police officer, the type of cases they bring in, the devotion to seeing that they do a good job within these Supreme Court decisions. I think that they’re getting better convictions. By better, I mean that they’re prepared, they’re better developed, better investigated cases with more facts than we got when I first took the bench.
There are more officers probably per capita now than there was when I took the bench, so that I think that’s the answer. There’s more and better officers, and they’re better prepared. They’re better qualified to begin with, and the in-house training I think has improved. The state of Texas passed a law requiring minimum standards for police officers to go through their academy, the various academies. I think they take this as a serious problem, and they approach their profession conscientiously. We’re finding a different type of person to want to be a law enforcement officer today than when I first took the bench. I think all of this is an improvement in the criminal justice system, and I’m encouraged to believe that it will continue to improve.
LM: Do you think there’s a more favorable attitude under the Chief Lynn police administration than there was under Chief Short, with regard to respecting the rights of suspects?
ML: A more what attitude?
LM: A more liberal and respectful attitude?
ML: Well, I don’t know again what you mean by a liberal here, but I do think that Chief Lynn is probably—well, he’s inherited whatever the prior administration left. That’s redundant to suggest that. I think that he has approached his job as a chief of police differently than his predecessor did. I think that he reflects perhaps more of the academic approach to law enforcement than the prior chief did Willith. I think that would follow. He was the head of the academy, as I understand it, before he was made a chief. Under the former chief, he was the head of the academy. Perhaps his emphasis is on upgrading the type of person. I don’t know this specifically, because I know nothing about the inner workings of the Houston police department anymore than I do the Pasadena, Bellaire, or Deer Park, or Maytown, or any of the other cities.
I’m not concerned with how they upgrade and improve their caliber of officers. I am concerned that they do that, and I believe that the present chief of police is devoted to improving the kind of recruit he gets for the academy and improving the cadets, that once they get there, they’re given good training. I believe that this will permeate all through the department. From an administrative standpoint, it’s bound to do good to the general public if the officers recognize their role in our society and not try to be the ultimate decider of what’s going to happen in a case. They have to be the initial decider in any case. That’s what an officer does, is make a formal acquisition generally after his investigation or after his viewing at some event. He makes a formal acquisition and then seeks out to reinforce it by presenting fact.
I think maybe philosophically chief Lynn would be different than his predecessor Chief Short, but I certainly don’t mean to imply that I think that Chief Short had completely lost sight of these roles in society. He’s a seasoned police officer, and always was a person high in personal integrity, I suppose. I’ve never heard of anything contrary to that. I don’t mean to imply that there’s any particular criticism because I think the department did improve when Chief Short was there. There’s bound to be philosophical differences between any two people that would take over such a tremendous responsibility as chief of police for the city of Houston. They’re going to have different emphasis.
I don’t know whether liberal or conservative has anything to do with that either, though. Back to your original question, I don’t know how to interpret a liberal or a conservative police officer anymore than I could a liberal or a conservative prosecutor or a defense attorney or a judge. I just don’t think those terms have any meaning where the Bill of Rights are concerned. I think the only place that those terms have meaning is in some legislative concept or perhaps some executive fiat where it deals with the economics of our state or the economy of our area. The judges or the courts or the prosecutors or the police don’t have any direct bearing on those institutions of finance or economics, only the people that are caught up in the accusatorial process, as far as criminal courts are concerned. I probably answered your question someplace in there.
LM: I’ll promise not to use the word liberal or conservative for the remainder of the interview.
ML: Well, no, I don’t mean to imply that the term is a bad term. I just don’t know what it means with respect to criminal or prosecution or defense or judgment in the court. It just has lost meaning, so far as I’m able to define.
LM: One question I specifically wanted to ask you, and that was—kind of—when a person comes before you for breaking the law, and you consider it—you could say here we’re using terms again—a bad law and he is found guilty, does this create tension or problems within yourself as to having to sentence a man for a law which you don’t really think is wise in the first place to have?
ML: You’ve hit on several problems when you ask a judge whether he thinks a law is good or bad. It’s not up to him to decide that. First of all, his oath is to uphold the law and enforce the law as he understands it, because he’s the one that has taken the oath. That is the law of the Constitution, as well as, the Supreme Court of the United States and the court of criminal appeals has given us. Now, there’s seldom do I evaluate personally whether I think when I’m making a judgment on a case, to whether I think the act for which a person is charged is good or bad law. It’s whether he did the act or not, so far as the facts are concerned.
Now, I’m sort of begging your question in a sense, because I know that you can say, “Well, all right, he’s found guilty of that act,” but on another balance you might say, “Well, you might not give probation to somebody for another act because you think that is a good law. You might not think this is a good law, and so you give him probation more readily than you would the other.” I recognize this is a possibility, except I try to decide not when a person has committed an act or it’s been decided that he’s committed an act, as to whether or not that has been denunciated as a criminal act. As to what disposition I’m going to make thereafter, I look at entirely different things.
I wouldn’t be concerned on the sentencing of someone if they’re not guilty of something that the penal code has denunciated as a criminal act. I don’t have any post conviction concerns if they’re not guilty of something. Now, if they’re guilty of one act, say act A as opposed to act B that you might say he’s guilty of A, but it’s a minor criminal act, so far as an individual judge is concerned. He might more readily get probation. I wouldn’t be concerned with it at all if he hadn’t done and found guilty of doing it. I like to decide at this point in most criminal cases that what am I going to do with that defendant or that convicted person then that’s going to result in the general community’s benefit at the end of whatever sentence I pronounce?
In other words, what’s going to be the best for him at this time in his life or hers that will, when we finish with him, is going to result in his being a productive member of society, as opposed to ruining a person’s life at that point. I look to different criteria. Now, if you extend this analogy beyond, or this evaluation beyond that, you’ve got to recognize that there are some criminal acts that individual people will decide are more heinous or less egregious than others. I make a decision then based on the seriousness of the offence in my judgment, as well as the statutory prescriptions so far as the sentence is concerned.
The legislature recognizes that there different kinds of cases. They denunciate some as misdemeanor offences and various classes of misdemeanors, and then various degrees of felony, so some running from a minimum sentence of 2 years in probation, up to 10 years for third-degree felonies. Second degree felonies, 2 to 20 years, a first-degree felony, 5 years to 99 or life, and then capital murder cases where you can get life or death, and so the legislature recognizes there are different types of acts that people do that they have prescribed. The courts have to deal within those prescriptions.
Now, they’ve also prescribed that the judges of the various courts may give probation in certain cases, if the punishment is not in excess of 10 years. Well, now you could make a good case—I suppose—for suggesting that a particular judge or a prosecutor approaches his job with granting probation for most first offenders, and that’s probably the case all over the country, if the offense is not capital murder. We—kind of—recognize that the probation laws are working because more people successfully complete a term of probation. More people complete it than commit other acts that would cause their probation to be revoked.
You could make a good case for saying that they think all first offenders ought to get probation, but that’s not the case. They don’t all, but I think that the philosophy is that a lot of people can get caught up into the criminal acts and commit criminal acts one time and probably never do it again. We see a lot of this, especially with the young offenders, young people. We see a lot of young people sort of caught up in the wheels of criminal justice. We see them one time, and that’s when they come into court and enter pleas of guilty or are found guilty. If they’re placed on probation, most of these young offenders are never back. That’s sufficient to turn them around and prevent them from continuing on a conduct of crime or a career of crime.
There are always exceptions that you could establish that would disprove this and recognize that we’re just dealing in a mathematical, scientific area of our society. We’re dealing with people. Their conduct is just as diverse among the young and the first offenders as there is with any other human activity. If they violate probation, they go to the penitentiary where we’ve got a little more closer supervision, a little closer type of structured life for them, yet most people don’t need that. I mean—they need to have the criminal justice system recognize that they’ve violated the law, and this is sufficient.
Most of the more severe type of offences wind up in the penitentiary, whether it be first or second offended, and then the department of corrections has got to restructure with a different emphasis, their lives. I don’t know that any particular act that has been denunciated as a criminal offence is any less objectionable to me than another. I do recognize that in the past few years that the legislature has—and properly so—has considered the punishments for possession of marijuana. Now in small quantities, the legislature says it’s just a misdemeanor now. Whereas, when I first took the bench, possession of it in any sense was a felony where they could receive up to 99 years.
It was not unusual to receive several years of confinement for the possession of mere small quantities, merely the possession of any of it was sufficient for a conviction. I think that by the perhaps general use of it—at least, you get the impression that there’s a general use of it in the community—that young people pretty well wrought a change in the law by the legislature’s reconsidering small quantities of marijuana, and this is the proper place to change the law, not in court.
I don’t view it as my responsibility to change the law in court. That’s the one thing that I think no judge should assume to himself or any court, and that is to restructure the law, because his oath is to uphold the law as is given to him by the legislature, the Supreme Court, and the court of criminal appeals that enforced that law. If it should be changed, it should be changed according to our Constitution by the legislature, and not by the judges. He’d be doing violence to his own oath if he took it to himself to change the law, merely because he might personally find it objectionable. I think he could do more violence to the system than if he didn’t show up. It would be better if he didn’t show up—I think—than to take the law and change it in the court.
LM: I’ve sat in the courtroom a few times and I’ve seen procedures, and the ritual was one of the things that intrigued me, the standing up, the formality of it. Is this a conscious procedure, or does it have some—?
ML: I hate to give you sort of an insight into some of my personal convictions here, because I started a lot of this. When I first took the bench, the judges didn’t wear robes. When I first started another part of my life, my marriage, I didn’t think that ritual had any part at all in my religious practices or in my personal affairs or in the courts either. I’ve come to change some of my ideas in a lot of this Methodism or ritual, pageantry, and so forth because I think it’s necessary or important to the human animal to recognize that there are certain parts of our society that are different.
That’s the reason we go to churches. They have a ceremony, a ritual, a Methodism—and I’m not a Methodist, by the way—but I mean—a procedure, a kind of a pageantry involved in that part of our life that’s important to some people. I’ve found when I first took the bench that there was a little bit lacking, both in myself, as well as, the rather relaxed, informal attitude and atmosphere in holding a court session. Now, I don’t particularly personally care to be excluded from the brotherhood of professional lawyers, although, they do it. It’s isn’t something that I have sought, but they, as members of the bar, recognize two things—I believe.
I don’t know whether they’re conscious of this as a profession or not, but I think they recognize it’s important to their clients to recognize that when they go to court something different is going to happen than what they can do out on the sidewalk or out in the streets or up in their clubs or in some other place. They need to impress their clients with the seriousness of this sort of thing. In court most all of the judges and then off of the bench they carry it over. When they’re the judges in some kind of a social, they constantly refer to them as “Judge” or “Your Honor” or some other—so the lawyers are separating the judges from the lawyers.
Now, many lawyers will say, “I’m on a first-name basis with the judge,” and that’s true. Even in their conversations with their clients and their colleagues and their acquaintances, they refer to him in a different tone than his friend that used to play golf with him or used to go boating with him or go fishing with him or something. They treat him differently. I think it is necessary that the lawyers do this to impress their clients with the seriousness of the action of going to court. I think it’s important for a defendant in a criminal case to recognize that he is being judged by a court that’s a completely different institution in his life than what he’s been governed by heretofore.
That court represents his last protection against the state, who is trying to take his freedom away from him or his life. I think it’s important that he recognize the seriousness of this too, and that formality and that little pageantry and goes on when the judge walks into a court, was—kind of—instituted in part by my own urging in this area.
I have a picture of all of the judges that started wearing robes, dating back to—I think it’s 1963. Some of the judges are dead now. Some of them are no longer on the bench, but it was recognizing—at least I felt—recognizing this need that both the lawyers and the litigants, as well as the witnesses and the jury too, all should recognize that we’re dealing with a serious situation when we’re in court. Now, off the bench I’d like to feel that I’m just as relaxed as a congenial with my fellow practitioners in the law as the other fellow, but the lawyers don’t let a judge do that. Even some of my dearest friends that I grew up with as a native Houstonian, they treat me differently.
LM: Do they awe and bow?
ML: Well, it isn’t necessary awe. It’s just they know I have a different responsibility now as a judge than I did as a private practicing attorney or just another member of society, and recognizing that I have this different role to play, they defer to it, if you please. I think deferring to it is not necessarily a good word, but at least they recognize this and treat me a little differently than they did before I took the bench, or perhaps after I retire at some future date from the bench.
I think they find it necessary in dealing with their clients and in dealing with the general public, to refer a person differently when he assumes the bench than they did before he assumed the bench. I think that it is a serious business in our community the way that courts are run and the institution of the judicial branch of our government. I think the people expect this and perhaps are a little disappointed when they come in and find it as relaxed as it is. In some cases, I’ve heard that criticism, even since perhaps we are an evolving institution that the final word hasn’t been written on yet.
LM: Is this an informal agreement among the judges to wear robes and to follow these other practices?
ML: There’s no requirement that I know of that says a judge must wear a robe on the bench and, in fact, some of the judges here in this county do not wear a robe for their own reasons. I know of no reason, but I began back in the early ‘60s campaign of beginning to wear robes and even, for that matter, I’ve had to order some of them myself for some of the judges that were then sitting on the bench before they’d wear them. They wouldn’t order them or anything else, but they didn’t have any particular objection to it.
LM: Is that one of the pictures that you mentioned?
ML: This is a picture of those judges, and they were only criminal judges, including the justice of the peace that I finally got into them. This is Judge Duggan who is retired now, and this is me. This is Judge Quickhammer (??). This is Judge Langston King who was the senior judge at this time. This is Judge Davis who is now dead. This was Justice of the Peace Walter Reagan, and this is George Miller who is now on the district court bench. He is on the county criminal court. This is Judge Wallace Moore who is now on the district court. He was then on the county criminal court. This is Judge Duncan who is on the county court. This is Judge Gareno (??) who was then on the county court—is now on the district court for criminals. This is Judge Treadway who was then the justice of the peace—is now in the county criminal court.
This was taken the first day before any of us started wearing robes. The following day we all appeared in them. These are all of the judges in the then criminal courts in the Harris County.
LM: It does have a certain effect I think for the atmosphere.
ML: Well, yeah, and I hope it’s a desired result. I don’t know whether that’s true or not. History will have to record that.
LM: I always walk in court and feel very quiet.
ML: Well, I think that’s proper that you should consider this just as serious as if you were walking into a church. I think in a strict sense that it is just as important to the community at large that he have the same respect for the courts and perhaps more important, than the respect he has for his church. I think they are public courts. Anyone is of course welcome to appear in court, as long as he doesn’t disturb the proceedings, which are—in my judgment—some of the more serious proceedings that our community can conduct. That’s the reason that I confess that I’ve begun the ceremony, the pageantry, the robe wearing, and the whole smear, so far as, the way I run the court and the calling a session to order immediately and demanding that it be an orderly proceeding, as nearly as is possible.
LM: One question I wanted to ask when we first began and that was when you assumed your duties on the bench, your first case was a sticky murder trial?
ML: Well, it wasn’t the first, but it was certainly one of the first—
LM: It was one of the sensational cases—
ML: Well, all right.
LM: —using the newspaper terms there. Was this rather awkward, assuming the duties and not having been on the bench that long and having such a controversial type of case?
ML: Well, I don’t know that awkward would be the proper word. I think that difficult is certainly a proper word to use here because not having the breadth of experience that I now have, I was called on to make some decisions during the trial of that case that I knew or had every reason to believe would be carefully scrutinized in the event of a conviction. What it did, so far as I was concerned, was put me to work in a greater depth of effort than I’d ever done in the private practice of law in any other case or ever had done so far as the law school career was concerned. I knew generally of what kinds of decisions I’d have to make and attempted to arm myself with the research that I felt was necessary.
I will also recognize and give complete credit to both the prosecution and the defense attorneys in that case, where they did cooperate as far as is possible with their respective duties with me, and knowing that I was a fairly young judge, inexperienced in the trial cases. I’ve had occasions since then to visit with them, and they have recognized that over the years that I have been conscientious in approaching not only that duty then, but most all since then, by the principal lawyers involved. I think I still have the respect of all of them. If not, they’ve shielded me from knowing it, at any rate. They cooperated, and I think that I gave them every opportunity to protect their respective positions, but it was a hard job.
I don’t mean to say this in any complaining fashion, but it seemed kind of a hard job that I’m sure that any doctor would have if he had to perform a unique operation without having the experienced man to stand beside him and tell him what he must do. Again, the law books are helpful in this regard, and they’ve given you a lot of guidance in former cases on those particular issues of law. I was just put to the task of having to do a lot of research over a relatively short period of time. I’m not particularly proud of or ashamed of the case. Other people are going to have to evaluate that.
It was just a job that I felt was a difficult job to do, the same as any, and many others have happened since them. I don’t relish the thought of having to preside over or pronounce the death penalty in any case, but I’ve done it. It isn’t one of the tasks that I particularly seek out or relish, but I’m hired to do what comes down the pike and those happen to be cases that I assume with the same dedication I hope I assume on any case.
LM: You mentioned the death penalty. Of course, there’s been a lot of controversy about that. Do you think it’s an effective deterrent?
ML: No. Of course, it certainly deters anyone that they execute, but I don’t think that it actually has served the purpose for which it was passed. Now, I recognize and I guess no one will ever finally decide truthfully what is going to happen in a prospective act towards mine when he considers, “Well, if I do this, I’m going to get the death penalty, or if I don’t I won’t.” Most murderers are not committed in those terms. There’s bound to be some that are, but most of the murder cases occur in the heat of passion and at the time when a person doesn’t have an opportunity to seriously reflect on what’s going to happen if I go ahead and do this, but instead they’re highly charged emotional events that lead up to a killing.
I’m sure that this new death penalty statute that we’ve got will be tested by defense attorneys, as it should be from every standpoint, and jurors will be hard put to make that ultimate decision of assessing the death penalty or not, but I don’t think that it’s going to prevent the killings in our society. I think it’s probably something a little more basic to our society than realizing that there are these kinds of restrictions placed on a person’s conduct that is that you’re going to get the death penalty if you do it.
I think that education and economic standing in the community and some of the personal dignity of all of our members of our society has a lot more to do with whether we have a meaningful life than whether we’re going to have to conform to a certain conduct because of the criminal acquisitions that may be levied against us, or punishment in the event we are found guilty. Needless to say, something must be done with those bad actors in our society, but once you decide to execute them, well, then you as a society are saying, “We give up. There’s nothing can be done in this case for rehabilitating or turning around this life. The best thing to do for the society is to get rid of him,” and that’s sort of an easy way out I think.
It hasn’t, in those jurisdictions where it’s enforced as it was in Texas up until just a few years back, it didn’t prevent the killings, and it didn’t stop the gross misconducts in our community by a certain people. I don’t think that kind of admonition by our organized society is going to ever stop it. We’ve got to get something a little more basic into our citizenry. Human dignity is perhaps more important than these admonitions, again, against certain acts.
LM: I suppose then, from what you’re saying, you are opposed to the death penalty?
ML: Well, I’m not opposed to it as strong as I might be opposed to say, sin, in the sense that I can recognize that our society has got to have some kind of a release for the frustrations. There are some people in our society, perhaps according to the sums judgment, the total judgment, total summary judgment of our society—don’t necessarily have to live in it. By their acts, they don’t deserve to live it. In that case, the society hasn’t anything but one thing to do and that’s to get rid of that person, but philosophically, I think that it’s not going to work to prevent crime. It’s not going to deter others from committing an offense. It certainly will deter that one, but there’s no way to prevent crime from occurring.
Philosophically, I can make a good case for either side. There are some people who don’t deserve to live in the society if you leave the total judgment to society. There is some argument that can be made to the contrary that the preciousness of human life is such that we as a society don’t have the right to execute. We have the responsibility, instead, to rehabilitate. Personally, I’m not convinced that either side is right. I’m ambivalent from a philosophical standpoint, but from a professional standpoint as a judge, I have to uphold that law the same as I would any other.
I don’t think it’s working, but I don’t think some of the other laws are working either. I mean—we’ve had an admonition against driving while intoxicated, and we probably have more DWI cases now than ever before. Maybe the liquor companies and the beer companies or breweries are better at advertising and pushing their wares and products than the courts are in showing the result of what happens when you drive while intoxicated—or the morticians or whatever benefit by the deaths that are caused by drunken driving. A good argument could be made that driving while intoxicated, that as a law is not working too because we are getting more and more cases.
We’re getting more and more drug cases, but it doesn’t make any difference really what I as a judge think philosophically about a particular law. It’s up to me to follow that law until it’s changed. I have some strong convictions about the inadequacies of the drug laws, the alcohol laws, and control of substances, and sort of thing—the same as I do about the death penalty. I don’t think my opinion is any better founded than anyone else’s would be.
As far as whether it’s working or not, I have some observations. We probably have got drug addicts now as a result of the definition of these controlled substances being—possessing them or distributing them being illegal. You see, what you do then is make that illicit possession and distribution an attractive thing for some of the malefactors. It’s attractive in a sense that when you can make an addict, if you’re interested in illicit distribution and the profit involved in the illicit distribution, you can thereby, benefit by having more addicts. Well, I think we’ve got more addicts as a result of this. The illicit traffic in drugs causes more addicts. More addicts cause more demand and they will pay more money to the illicit distributors or drug pushers and thereby make it more attractive.
It sort of builds on itself and gathers more addicts and criminal action in the distribution method than if you just left it alone and didn’t even define it. Leave it to another sector of our society to deal with it and I submit would be as a medical problem and not a legal problem. I think also when you get to the kinds of dimensions with the drug problem it’s gotten to, you even have—at least it’s accused—corruption of the police by either dealing in or distributing unlawfully or being corrupted to ignore the enforcement of the law by the drug traffickers. Whether it’s true or not, perhaps remains to be seen, but there’s a lot more of the addicts committing criminal offences to support a habit today than there was in 1938 when they first conceived the idea to outlaw various types of substances that we now call drugs that people can get addicted to.
This, of course, may be because there’s better records kept than before, maybe because it wasn’t criminal offenses that they could understand committed by addicts to support a habit. They didn’t keep the statistics. Even since they’ve started keeping the statistics, the incident of offences committed by addicts has consistently increased. It builds in at least the temptation for a corruption or the possibility for corruption of law enforcement themselves, but I don’t know whether they fully recognize. I think as a court, we can recognize that law enforcement seriously suffers when the acquisition is made against them.
It suffers because of the lack of confidence that the community has in their law enforcement agencies, not only in the drug cases, but in all of the others. It’s an institutional assault against the law enforcement when they’re accused even of unlawful conduct, whether it be in drug traffic or wire tapping to make drug cases or something else, and society is paying for it. I think that it would be better taken out of the criminal justice system so far as drugs are concerned, and place in the medical field. Our medical institutions are better able to deal with it I think than the judicial system is because I don’t think what we’re doing is helpful at all to the society generally. It may be confusing the society more. I don’t whether that particularly answers all of you question.
LM: I think it does.
ML: Maybe there’s some answer in there some place.
LM: I’m sure there is. I was looking into my questions and some of the things that we had talked about before. I just wanted to tie a couple of ends up. Can we go back to the grand jury for just a moment?
LM: You mentioned how it was selected and removed. What I’d like to know is how much discretion does the judge have in directing the areas that the jury would investigate? For example, if one of your grand jury chose a political opponent or someone that disliked you said that your grand jury was investigating in the direction that it was because of political motivations, this type of thing. Does a judge have that much discretion?
ML: I can’t speak for all judges, but I know of no discretion that the judge has whatsoever with regard to what his grand jury investigates or what the grand jury has done. Quite the contrary, I advise every grand jury that they not only have a right but a responsibility to return true bills against anyone that they feel should be brought to trial for a criminal action. In fact, if they choose to they can indict the court himself or the judge of the court. There have been some judges indicted by grand juries.
LM: Recently or in the last 20 years?
ML: Oh yes, within the past 10 or 15 years that I know of. There have been judges and other people associated with the judicial system, district attorneys, and sheriffs, and I know judges that have been indicted. This happened in adjacent counties—or maybe, it’s Jefferson County and Montgomery County. Perhaps there were some political motivations, but so far as I’m concerned, I never tell a grand jury what to investigate or what not to investigate. I think that would be presumptuous. I’ve never told them, unless directly asked, anything with regard to what their duties are, other than to listen to the cases that the district attorney presents to them or what any of their members bring to their attention or anything that they wish to investigate on their own with regard to what someone else may have brought to them.
I do suggest to them that many times there are people in the community that may have an axe to grind politically or just because they’re personally opposed to some other political office that they can get off rabbit trails. They can go into anything they want to, but I suggest that if they take any complaints such as that that at least they get it under oath. I don’t even tell them that unless they ask me. I do urge them to because then they’ve got something that at least bears a little more credence to investigate if someone is willing to swear under oath that some other person, whether he be a political officer or not, has committed an act that they feel is wrong in our society. There’s nothing particularly different about that than any other case that goes to the grand jury, because they take testimony only under oath.
Now, if they choose to go out and seek information on something else, they do it on their own responsibility. It’s never at my suggestion because I think it would be an affront to them as members of our community that have been selected by this process we discussed earlier for me to tell them what they ought to go look into. Unless something comes to my attention in court, or through some other direct affidavit or something like that, I think it would be an affront on them to refer it.
Now, something that happens in court actually, I think would be proper to refer that kind of thing to the grand jury. I can’t even think of something like that that has come up, but something close to that came up in connection with the conduct that an attorney committed or alleged to have committed while he was representing a defendant in this court, but I didn’t carry that to the grand jury. The prosecuting attorney carried it to the grand jury, and I told him I didn’t want to know anything about it because I don’t think that I should concern myself with that attorney’s problem when he’s representing someone else charged with a criminal offense in my court. It’s not a proper thing, and I’ve deferred a trial of that case until after the attorney’s case is out of the way. At least so far I have.
I can’t right now tell you what the status of either case is—the one against the attorney, or the one that the attorney has in this court—but I know that’s the only kind of a case where I feel that even if the grand jury had asked me, I couldn’t have given any testimony about it. The assistant district attorney felt he could, and he felt constrained to go to the grand jury, not by anything that I told him, but by what he thought he knew and observed himself.
I never, to my personal recollection, I can’t think of any specific admonition to the grand jury that hasn’t been to all grand juries. I’ve never for sure told them they should investigate something or should not investigate something or somebody or some person. I would consider it if I were on the grand jury, an affront for the judge to tell me what I had to do and not do and make me take the oath that the law requires, because that’s not the function of the judge. It’s to inquire into all acquisitions of criminal misconduct that comes to their attention. I’ve never felt particularly constrained to suggest that they look into any specific criminal acquisition or anything else for that matter, whether it be criminal or not. They get off on some things that are not criminal, some grand juries do.
LM: Perhaps this is where the term “runaway grand juries”—?
ML: Well, I don’t even know what means particularly.
LM: Well, dealing with another acronym.
ML: Any person that says a grand jury is a runaway grand jury that means that they’re doing something that that person that labels them that doesn’t particularly may like. It may be a prosecuting attorney—I don’t know. I’m sure a lot of defendants felt that this grand jury was a runaway grand jury that had the audacity to indict him as a defendant. I don’t particularly concern myself with those kind of acquisitions, because I think that a grand juror, when he takes the oath, the same as an attorney when he takes his oath of office, intends to do what the law and the oath requires him to do. That’s what that duty imposed by law requires him to do as a grand juror or an attorney or as a witness until I hear something that’s contrary to that.
LM: These types of acquisitions are—I imagine in part that they result from the fact that judges or district judges are associated in politics. That’s how they received their jobs, so some connection with politics.
ML: Oh, I think that’s certainly true to some extent. I think it’s true that the acquisition gets there. I don’t think it’s true in most of the district court cases that they’re involved in politics. They get there perhaps initially, but I know of very few, if any, of the judges at the district or county level that don’t follow their—well, first of all, their code of judicial ethics that requires them to stay out of politics, except where his own election is involved. Of course, it would be foolish to require him to stay out of that because he’s personally involved and is obligated under our system to see that his name is on the ballot, and if he has an opponent, to do what he can to be re-elected. I think that the community expects that of any judge.
LM: That puts the judge in a rather vulnerable position?
ML: Well, it would be much better if he didn’t have to do it by some vehicle, but as long as it remains as it is, well, then I think the judges will take that limited interest in politics and perhaps should. So far as being involved in anybody else’s politics, I know of very few judges that even take notice of the other’s politics, whether it be another judge or whether it be any of the other political office holders. I know I have no interest in any other political officer holder’s job, because I have to work with whoever it is elected.
I don’t intend to isolate myself from any other office, merely because I had differences with some other candidate for public office. I believe that I have pretty good report with most all of the other officers in the county and the state, to the extent that I know I haven’t done anything in their offices to publically or privately, to prevent this kind of rapport. If they choose to believe different, that’s on their responsibility, not mine.
LM: Have there been any serious attempts to discredit you as a judge because of the actions of an opponent?
ML: Not that I know of. I’ve never had a political opponent, fortunately, I think. I think also that most of the judges do not have. When they’re doing a creditable job, the Bar Association and the members of the Bar generally recognize that. A judge is in a rather unique position of having no political base. As long as he remains creditable, then they leave him alone. If he remains doing a good job and remains out of the political arena, well, then most of the lawyers treat that pretty responsibly I think and recognize that he’s doing a good job and he’s not meddling in somebody else’s affairs and leave him alone, let him continue his job. The tradition in this area has been to leave the judges, if they’re doing a fairly good job, alone and not give opposition to them.
Maybe they feel that if all of the judges get together and gang up on him if he’s a lawyer, but I don’t even notice that among the judges. I’ve never been a party to or associated with any other judges that take any notice, concerted or individual, as to whether one of his colleagues has an opponent or not. I couldn’t even tell you who had an opponent in the last election, if any. What I see is the proper officer when I go to cast my ballot, and I ignore anybody else’s contested race. I try to arm myself. I don’t mean to suggest that I completely isolate myself from the political arena, but I don’t disclose even to my family what my personal persuasion is. I wouldn’t try to get my wife to vote differently. Unless she asks me, I’m not even going to give her an opinion as to any of the candidates. Then if I know, I’ll tell her as I would anyone else, but I’m certainly not going to seek out anyone to tell them anything about any political candidate.
LM: I suppose that’s your best protection against that.
ML: Well, I’ve felt it has been, at any rate, to completely eliminate myself from any—first of all, no one else can criticize me knowing the facts. I won’t have to apologize for anything if I don’t say what my political opinion is on a given candidate or proposition. I just feel that I don’t have to apologize to anybody for my personal convictions. If they don’t know them, they can’t properly criticize me.
That’s a private thing, and I feel that it’s a little more important to remain private as a judge than I would be as a private citizen, because then I’d be completely free to express my opinion on anything. I do feel a responsibility of keeping my opinions to myself, when I hold public office, with regard to anyone else’s office or proposition. That doesn’t mean I’m not going to tell you what I think if you ask me directly and I feel that it is a personal interest, seeking to get information for yourself, but I’m still not going to say for or against another person. I just know him and what I know about him or a proposition, what I know about it.
LM: I noticed you’ve given generously of your time, and I certainly appreciate it.
ML: If you’ve got any other areas, you might as well go into them. We’re going so good. [laughs]
LM: I would like to ask you one last question, dealing with the option of waiving the right of grand jury indictment. That was introduced about 2 ½ years ago, and I was wondering if you’d noticed any reduction in the backlog of the criminal cases?
ML: To answer your last part first, I don’t recognize any reduction of the backlog for that reason. We may have reduced the backlog for other reasons, but it hasn’t been because of waiving of an indictment. I think it is necessary to explain that the constitution gives a citizen the right to be prosecuted for any criminal offense of the grade of felony, and his life or property or freedom taken from him without due process of law and indictment of a grand jury. He has a constitutional right to being indicted and prosecuted under grand jury indictment. The waiving of that right has only recently been possible in Texas, and they haven’t implemented it because the defendant—before the prosecution can commence—has to agree to waive the indictment.
Now, in other jurisdictions the prosecution normally—where they’ve got this law—it normally begins by just filing a criminal information. If there’s some objection on the part of the defendant, then he will raise it, and the prosecution then is put to the requirement of having a grand jury indict. The law in Texas is that the defendant himself has to agree to be prosecuted on the felony information instead of a grand jury indictment, so that I can’t commence the prosecution without it.
The procedures haven’t been established or implemented in this jurisdiction for waiving the indictment and reducing the backlog, although I believe it can be if we can implement a case flow by bringing immediately that defendant that’s charged with some felony offense into a court of competent jurisdiction within 24 or 36 or 72 hours from the moment he is arrested and explain to him what his rights are and have an attorney present—his attorney or a court-appointed attorney, whichever is appropriate—and possibly reduce the time from the original acquisition to the time of ultimate disposition.
I don’t know that that’s going to necessarily remove the backlog because if you did process all of the cases, you might remove some of the steps involved in this that would be on the justice court level for examining trial or from the processing through a grand jury, none of which is taking up the district court’s time in disposition. You might shorten that time from initial charges being filed to final disposition, but I don’t know that that’s going to necessarily remove the backlog, because the district courts are still going to have to try presumably the same number of cases. They may have to try more, as a matter of fact, with this process because if they get them earlier, they may be better cases than if they’re delayed. Frequently, the delay works to the benefit of the defense instead of the prosecution anyway, although the constitution requires that the defendant be granted a speedy trial, I haven’t noticed many of the defendants demanding a speedy trial, but instead they’d just a soon never be tried, especially if they’re out on bond.
LM: What major reforms do you think are needed to expedite the process?
ML: Well, I think the one major reform would be to place the complete burden of prosecution on the district attorney and the responsibility for or lack of prosecution. Then you could proceed without the defendant waiving your criminal information. You could proceed initially in the court as they do in the federal jurisdiction, as well as some of the other states, where they either must raise the fact that they haven’t been indicted as an objection or proceed on the felony information. There’s no difference in the trial once it’s filed in the district court. It doesn’t get to be a better case or a worse case.
I think part of the grand jury system could be renovated in connection with this and leave the grand jury to investigate other matters concerning public officials and their discharge of their function. I think also that the legislature might well look into our drug laws and decide philosophically whether the criminal justice system is a proper place for handling those types of acts or whether the medical professional is the proper institution in our society for handling those types of acts or whether the medical profession is the proper institution in our society.
I believe in time that we will see in this jurisdiction, as well as, most other state jurisdictions and federal jurisdictions, a specialization in the law where trial lawyers have to have more closely approach to the barrister status. The barrister status, as we understand it from the English system, where they’re either trial lawyers or they’re office practitioners and have to pass a minimum standard examination before admitted to trial of court practice. This idea of specialization is not new with me. I mean—the American Bar and the state Bar and other state Bar associations have looked into it. The chief justice of the Supreme Court has urged that we consider it.
In metropolitan areas such as Houston and Harris County, I think that court administration in the handling of the case flow has got to be streamlined and improved upon. If it isn’t done voluntarily by those of us in the system now, I think it will be impressed on us in the final analysis by the legislature. I think that it’s necessary to devote some attention, whether it be in the legislature or the public sector—I’m not sure now which—to how the judges are selected and maintained and kept on the bench. Judicial tenure is a serious problem, in my judgment.
Also the salary scale for judges—I think it’s unseemly for the judges of this state or this county or any other state or county to have to go hat-in-hand to the legislature every session for relief on their salary. I think there should be some kind—will eventually be too—some kind of salary commission established to let the judiciary personnel deal solely with the judicial function and not have to concern themselves with these other peripheral problems.
Well, I probably could think of others, if I just had the time to—but these are some of the reforms I think that are in the making already. I don’t think there are any particular revolutionary concepts in them, but I think they will be coming in a matter of a few years. I think it’s important that they do because in some of these areas I think that the general public is not getting their full measure of judicial talent because they’re not getting the type of people they want on the bench, and they’re not able to keep the good ones because of leavings for more lucrative positions. They will not attract the better caliber of person to serve on the bench.
I think it’s important to get all you can from the judge while he’s there, and you can’t if you give him all of these tangential duties, responsibilities, and inhibitions such as the political necessary of life to get re-elected every so often, and leave him without the necessity of handling all of the administrative problems. We’re not given adequate administrative staff in most instances to handle the administrative duties—not the judicial duties, but the administrative duties. Judges and lawyers are notoriously poor administrators.
I think that the public is being short changed in not getting the full dollar-for-dollar value and not paying adequately for higher caliber talent because of the tenure problem. The retirement benefits I think are something that will have to be realigned and improved upon. Our retirement isn’t nearly as good from a statewide standpoint as an employee of a utility company or certainly not anything to approach the legal representative of some of the industries, legal staff in the industries that bring their litigation to the courts. I think this is sort of penny-wise and pound-foolish, and the public is short-changed as a result.
LM: What changes would you want to see in the tenure?
ML: Well, I’m not sure that I have an answer to that. I think that there are all sorts of plans proposed. One that comes probably closer to solving all of the criticism is one that gives a judge the first term, a 4-year term, after he’s elected or at an open election, as a kind of a probationary term. After that, if he runs for a second term, it will be for 8 years. Then for a total of what amounts then to 12 years on the bench, he’s unconcerned with the political involvement and would have basically under the existing present statutes retirement benefits vested, and this could continue at least for 12 years after he’s got retirement vested.
Then if he chooses to run again, it would be for another 8 years and then a mandatory retirement is not objectionable to me or most other people, at 65 or at 70. The present structure requires him to retire at 70, or he begins forfeiting some of his retirement benefits which are at best now, rather poor, would even become less desirable if he stays on after 70. This is perhaps the best compromise to tenure that I know of which meets the test of, on the one hand, not requiring him to run every 4 years—as we are now obligated to—or some other fixed term.
Second is a lifetime appointment such as the federal judges in some other states have. I’d be perfectly willing to accept that sort of thing philosophically to have this kind of a compromise implemented. I would hasten to point out now that so far as I’m concerned, they’re both mute so far as I’m personally involved is concerned, because I have beyond the 12 years now that is implicit in my suggestion, and I don’t anticipate not making it to retirement as a judicial officer. At this point I don’t, so I don’t think that I’m personally involved here, but I do think that retirement benefits could be improved if you take the past several years as any example.
I’ve taken about a 15% pay cut in the last 18 months, based solely on the inflation index that the federal is suggesting we’re all subject to. I don’t mean to suggest that anyone else hasn’t taken a pay cut, but I mean we are fixed by a salary scale by state law. People in private industry are not. They have bargaining rights and so forth that the judiciary doesn’t have and also other employment contracts. If inflation has eaten up 12% to 15% of my salary, well then that’s a salary cut, not by anything the state or any person or group has done, but just merely by the facts of life. I don’t know whether everyone can stand a 15% pay cut over a 2-year period, but I know it certainly hits the Love household pretty hard.
LM: I’m sure it hits just about everybody. If there are any areas that I didn’t cover that you think are pertinent, please feel free now to address yourself to them.
ML: I don’t have any particular subject matter that I feel that I must unburden myself of, and I’ve enjoyed the visit with you, and I hope that in some measure that the interview is meaningful to your institution. I know there will probably be a lot of things that I’d like to change or correct after hearing or reading it, but so be it. That will just have to remain what my off-hand comments were at the time. I appreciate the opportunity of participating with your verbal history as a community. I am also quite flattered that you’d select me to be among those that are interviewed.
LM: Thank you. We certainly appreciate your participation. It’s invaluable, truly. Thank you very much.
ML: You’re quite welcome.