This is a tale of dysfunction, mendacity,
I graduated from law school over 41 years ago and am now retired. I’ve known of many disreputable, if not corrupt, occurrences in the legal system, but few worse than what happened in 1976, before I was admitted to the practice of law by the State Bar of Texas, when I was in my third year of law school and allowed to practice in court under the direct supervision of an attorney.
Professor Irene Merker Rosenberg had been an extraordinary lawyer and supervising attorney for the Juvenile Rights Division of the Legal Aid Society of New York for seven years before joining the faculty at the University of Houston law school in 1974. She had been the trial attorney in the landmark Winship decision in which the U.S. Supreme Court held that juveniles accused of a crime are entitled to have the charge proven “beyond a reasonable doubt,” rather than by the lower standard of proof, “by a preponderance of the evidence.”
This story happened during the Juvenile
Law Clinic in 1976.
I was fortunate to have her as a teacher for Criminal Law, Juvenile Law, and a Juvenile Law Clinic course. I also spent the summer of 1975 working as a research assistant for her and Yale Rosenberg, her law professor husband, but this story happened during the Juvenile Law Clinic in 1976.
At that time, Houston had three Juvenile Court judges, one of whom was the chief judge, Robert Lowry. The other two were Criss Cole and W. H. Miller. Geraldine Tennant served as a Juvenile Court Referee, holding detention hearings, the purpose of which was to determine whether a juvenile taken into custody could be released to parents or another responsible adult, usually a family member, pending the adjudication of the complaint alleging delinquent conduct.
The Juvenile Clinic I was participating in had been approved by the three juvenile court judges. It was intended to provide third-year law students the opportunity to help a defense attorney prepare and conduct detention hearings and to observe the adjudication hearings in one of the juvenile courts, occasionally working under the supervision of one of the attorneys representing juveniles or serving as a guardian-ad-litem for an accused child. About 10 law students were enrolled in the Juvenile Clinic.
The attorneys rarely showed up until just before the hearings were to start.
For juveniles, detention hearings were the equivalent of adult bail hearings. They started at 2 p.m. each weekday. On the days we were assigned to the detention hearings, we were instructed to go to the detention facility as early as possible to begin preparing for the hearings. The attorneys assigned to represent the juveniles rarely showed up until just before the hearings were to start.
Our task was to review the reports provided for each juvenile in custody, talk to him (most were boys) to get contact information on his parents or close adult family member, and call the parents to encourage them to attend the hearing. If no parent or responsible adult appeared at the hearing, there was little chance the juvenile would be released, and he would be remanded to the juvenile detention center for 10 days, until he was entitled to another detention hearing.
The very first day I worked on detention hearings, I arrived at the Harris County Juvenile Detention Center around noon. A 15-year old African-American youth (I’ll call him Ray) had been taken into custody the previous day on the University of Houston campus and accused of an unsolved sexual assault.
Ray had had the temerity to flirt with some white college coeds.
Ray had had the temerity to flirt with some white college coeds while walking through the campus on his way home from school. Probably because of an earlier reported sexual assault by an African-American male on the campus, the college students called the campus police, who showed up outside the women’s dormitory and took Ray into custody, charging him with the outstanding sexual assault, though he did not fit the description of the assailant in that case, with the exception of his skin color.
I was able to reach Ray’s adult brother and, through him, Ray’s mother, who took off work to rush down to the detention hearing, no small feat considering the size of Houston. Ray’s mother was upset that her youngest son was charged with sexual assault — rape in the common parlance — because of nothing more than the decision of a lazy campus police officer and a nonchalant juvenile intake officer.
When the defense attorney arrived for the hearings just before 2 p.m., I hurriedly went over my notes with him about each case I had prepared. Because Ray’s older brother and mother were there, it seemed that Ray would have a good chance of being released back into her custody upon her promise to make sure he was in court when his case was scheduled and the adequate supervision of him, which she provided. Much to my surprise, the attorney did not call the mother to testify, and Ray was remanded to the juvenile detention center for the next 10 days.
I left the detention hearing room and went with Ray’s mother and brother into the hallway. The mother was distraught. She wanted to know what she could do for her son. All I could think of was to tell her that if she could afford to hire an attorney, the attorney could file a writ of habeas corpus to get, in effect, a new detention hearing before one of the juvenile court judges.
She asked if I knew any attorneys who would take such a case. The only one I knew was a recent graduate with juvenile law experience, Josephine “Jo” Nelson. I called Professor Rosenberg to ask if it was ethical for me to suggest an attorney’s name to Ray’s mother. She said there was no ethical problem and she knew that Jo could do a good job for Ray. I looked up Jo Nelson’s phone number and gave it to the mother.
Ray was clearly eligible for release
under the law.
I then returned to the hearing room to see how the rest of the hearings turned out. During a break in the hearings, I complained to the defense attorney about how he had handled Ray’s case. Not calling the mother to testify about her son seemed like an inexcusable breach of the duty owed by the attorney to his client.
When I asked the attorney why he hadn’t called the mother to testify, he just pointed to the rape charge on the detention report, indicating that such a serious offense meant that he didn’t want this kid released, though Ray was clearly eligible for release under the law, just as he would have been if he were an adult and a magistrate had set bail, and the bail was posted.
For a juvenile taken into custody, the Referee had to consider three issues: whether he would have adequate supervision if he were released; whether he would show up in court when his case was scheduled; and the seriousness of the charge. Clearly, that last factor was all that mattered to the attorney, and the Juvenile Court Referee never heard any evidence that would have justified releasing Ray from detention.
When the hearings were over for the day, the defense attorney invited me to go with him and an attorney friend of his to a nearby bar to talk about the detention hearings. He spent the entire time asking me questions about Professor Rosenberg’s views about juvenile law. I told him that she taught us to be advocates for the clients, something that seemed uncontroversial to me at the time, but seemed like a foreign concept to the attorney. But his strangest questions concerned Professor Rosenberg’s sexual orientation. Because she wore her hair short, the attorney wanted to know if she was a lesbian. I told him that she was married to a man, and her sexual orientation was irrelevant to what she taught her students.
Because she wore her hair short, the attorney wanted to know if she was a lesbian.
About a week later, all of the law students in the Juvenile Law Clinic received word from Professor Rosenberg that the clinic had been suspended by the three juvenile court judges. Soon thereafter, I learned that Ray’s mother had indeed hired Jo Nelson, who had filed a writ of habeas corpus and had Ray released into his mother’s custody after a hearing before Juvenile Court Judge Robert Lowry.
Unknown to Jo Nelson at the time, after the hearing, Judge Lowry had taken Ray’s mother into his chambers with his court reporter, at which time he asked the mother how she had come to hire Jo Nelson. Based on the transcript of the questioning by Judge Lowry that I read later, the mother related the events much as I explained them above.
Judge Lowry then filed complaints against me, Jo Nelson, and Irene Rosenberg with the State Bar of Texas Disciplinary Committee, alleging that we had conspired to impermissibly engage in unethical solicitation of legal services. He also forwarded the transcript of the private questioning of Ray’s mother to the disciplinary committee.
Professor Rosenberg hired noted Houston civil rights and employment law attorney Carol Nelkin to represent her at the disciplinary hearing. Jo Nelson was represented by her employer, Houston attorney Mae Nacol. Former University of Houston Law School Dean Joseph Hensley, who was then in charge of all clinic programs at the law school, recruited the well-known, tough-minded Houston labor lawyer Chris Dixie to represent me.
There was no evidence to convict Ray of the unsolved sexual assault.
Judge Lowry’s fertile imagination had led him to charge me with soliciting for Jo Nelson and receiving a kickback from her for recruiting Ray as a client. Not only were the charges pure fabrication, but I learned later that Jo Nelson had been paid all of $100 for the work she put into Ray’s case. At its conclusion, there was no evidence to convict Ray of the unsolved sexual assault and the charge was dropped. Ray was innocent of the crime alleged.
As we prepared to defend ourselves against the scurrilous charges made by Judge Lowry, I learned that the defense attorney who had handled the detention hearings the day Ray had been detained had been a prosecutor in Judge Lowry’s court before he went into private practice, and he regularly received appointments from the judge to represent juveniles both in the detention center and in the judge’s court. It was common also for the juvenile court judges to appoint former law partners or associates and those who made contributions to their reelection campaigns, a practice that has not changed.
This sort of patronage continues to infect the defense bar in both criminal and juvenile cases. Public records reveal that some court-appointed attorneys regularly receive a substantial amount of their income taking court appointments. In such instances, the number of appointments often far exceeds the number of clients they can adequately represent, leading them to pressure clients to take plea offers even when they are not guilty or when there is insufficient evidence to convict them, a process made easier when the person accused is held in jail or detention.
The judges maintain nearly complete control of the juvenile court system.
In 2011, a juvenile public defender office was created in Harris County through a grant; however, its attorneys currently represent only about 11% of the children who appear in the juvenile courts, so the court appointment of private attorneys continues to dominate attorney representation in the juvenile courts. Even the juvenile public defenders must be appointed by the juvenile court judges, which helps the judges maintain nearly complete control of the juvenile court system.
A report in 2013 from the Texas Home School Coalition Association about Harris County juvenile courts states that “only 23 attorneys out of 165 qualified candidates are regularly appointed to represent defendants in the juvenile courts,” and “many [of the attorneys] are overworked and underprepared for . . . trial.” Clearly, four decades have made little difference in how the juvenile courts in Harris County operate. Though the judges are different, the same kind of cronyism we encountered in the juvenile court system in 1976 has continued unabated.
The lawyer handling the detention cases at the beginning of the Juvenile Clinic had been appointed for a week and simply showed up each day for a couple of hours, making no preparation on behalf of the dozens of clients he was paid to represent. He reported to Judge Lowry the dissatisfaction I had expressed about his inadequate representation of Ray, and the judge became alarmed that outsiders might upset a system that was designed more for its smooth operation than for justice for the kids who were caught up in it.
There were lawyers on the committee who did not think very highly of Judge Lowry.
A State Bar of Texas disciplinary committee heard the cases filed against Jo Nelson, Irene Rosenberg, and me. There was no solicitation by me, and no conspiracy by any of us. Fortunately for us, this was not a kangaroo court, and there were lawyers on the committee who did not think very highly of Judge Lowry. One even told us later that he considered him a crackpot. All of the charges against us were dismissed.
Law school Clinic Director Joseph Hensley negotiated with the three juvenile court judges to continue the juvenile clinic in a limited way, and we were allowed once again into the juvenile courts of Harris County to learn more about how the juvenile justice system worked. But we were never again allowed to attend detention hearings.
The juvenile clinic course was supplemented with case studies and mock hearings for the remainder of the semester. What had been a promising learning experience about the juvenile justice system turned into an eye-opening experience of a different kind.
We learned that some judges are imperious when it comes to what they view as their fiefdoms. We learned that corruption is at the heart of what most people think is a fair system of juvenile justice. We learned that taking seriously the ethical admonitions to represent clients with “warm zeal” and “advocate” for them are just words on paper for some lawyers and can result in disastrous consequences for others who take the standards seriously. And we learned that judges are not always the honorable, reasonable people they should be.
Of course, Judge Lowry is not representative of many of the judges before whom I appeared over the years, but his kind remain too numerous in our courts. Regrettably, he continued as a juvenile court judge in Harris County for nearly 30 more years after making false accusations against three innocent people, who were guilty only of believing that children deserve strong, competent representation in court.
During my nearly 40 years of law practice, I never forgot the lessons I learned during the Juvenile Law Clinic. I saw the circumstances I had experienced as a third-year law student repeated over and over in varying degrees. I feel no better about the legal system today than I did 40 years ago, and I can’t imagine that will ever change.
While we were all exonerated of wrongdoing, nothing was done to prevent the same injustice from happening again to others, most regrettably to the children the system is supposed to protect. No responsible legal body stepped in to correct Judge Lowry’s abuses of his authority. And three unprincipled and unethical judges denied 10 law students a rich educational opportunity.
[Rag Blog columnist Lamar W. Hankins, a former San Marcos, Texas, City Attorney, also blogs at Texas Freethought Journal. This article © Texas Freethought Journal, Lamar W. Hankins.]
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