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Defensive Stand:
The Role of the Criminal Defense Attorney (Part II)

Criminal Justice from the Judges' Perspective
Your Criminal Justice System in Action
District Court Judges' look at the Criminal Justice System Part II

September 13, 2020
The Post Newspaper

Editor’s Note: This is the sixth in a series of eight columns on the criminal justice system in Galveston County and the first from the perspective of two District Court Judges.

We’ve looked at the Criminal Justice System from a law enforcement, prosecution and the criminal defense attorney perspective.  Now let’s look at it as judges see it!  I spent about five hours interviewing District Court judges Kerry Neves and John Ellisor. The next three columns attempt to answer some questions you may have.

Who decides what cases come before your court?
Unlike federal courts where plaintiffs can select what court they want to hear a case, in Galveston County cases are brought to either the County Clerk or the District Clerk.  These offices have computer programs that randomizes how cases are assigned to courts, thereby equalizing the number of cases in each.

Our courts handle both civil and criminal cases. The difference is for civil cases it’s about money; for criminal it’s about a person’s freedom.  In both the job of the judge is basically the same.

What’s the process for criminal?
The state brings the allegation and presents it to a Grand Jury consisting of twelve people. The Grand Jury determines whether a crime has been committed and if there is “probable cause” that a particular person may have committed it. “Nine or more people on the Grand Jury must agree if there is to be an indictment, which is a formal notice to the defendant of the particulars of the criminal charge,” Judge Ellisor said.

“The goal is to have cases go to trial within a year to a year-and-a-half, but there is no one size fits all,” Judge Neves said.  “In some cases, we have to wait on evidence (like from the DPS labs where there is a backlog).”   If the indictment is so clear cut that the person did the crime the defendant may decide if he/she wants to pled guilty, thus speeding up the process. 

If the defendant wants to fight the charge then the defense attorneys and prosecutors will meet and the prosecution will give the defense the evidence they have and a list of witnesses they plan to call.  “This is done in court and the judge needs to be available, but not necessarily sitting on the bench,” Neves said. “Where there are matters that need to be worked out – like requests to suppress evidence or a defendant’s criminal background – the judge will be present.” 
What about plea agreements?  

I play a limited role in plea agreements,” Neves said.  “Yes, I need to agree, but normally don’t get involved with the details.  I will look at the seriousness of the crime, the person’s criminal history, and whether the police officer is okay with the agreement.  If it looks out of line (normally it isn’t) then I could tell the parties to go back and rethink it but usually I concur with what is presented,” he concluded.

Judge Ellisor added, “If the party bringing the case wants a dismissal, the State may move to do so. A plea could be stopped or set aside if based upon false or incomplete information or the defense attorney finds through investigation that there is more evidence that could clear his client.”

Author and Columnist
Photo of Bill (Sarge) Sargent
September 13, 2020