It is a clear violation of the Ohio Revised Code and the Code of Ethics for a Judge to represent a criminal defendant in any capacity. The Ohio Revised Code holds: “A person that is a candidate for public office, or nominated, or has filed a petition or petitions SHALL not (A)Authorize, or employ the…

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By Matt Clarke

In 2009, former Harris County, Texas state district judge Woodrow “Woody” Densen was caught on surveillance video keying a neighbor’s car, causing significant damage. The video received widespread media coverage. He pleaded guilty to a misdemeanor charge of criminal mischief and agreed to pay a $1,500 fine and over $6,000 in restitution. [See: PLN, June 2010, p.50; Aug. 2009, p.1].

Six months later, in October 2010, the State Commission on Judicial Conduct (SCJC) imposed disciplinary sanctions on Judge Densen: It gave him a public warning.

The slap on the wrist that Densen received was infinitely more discipline than the SCJC meted out to the vast majority of judges who were the subject of complaints. Less than 4% of the 1,192 complaints against judges received by the SCJC in fiscal year (FY) 2011 resulted in any disciplinary action.

For example, on August 4, 2011, PLN managing editor Alex Friedmann filed a complaint with the SCJC against Angelina County Judge Derek C. Flournoy, related to comments made by Judge Flournoy in a criminal case. Following a sentencing hearing, Flournoy was quoted in a news report as saying to the defendant, Marco Sauceda, “I haven’t heard from you and I have no idea why you didn’t speak [at the sentencing hearing]. That causes me some trouble.”

According to Friedmann’s complaint, “In drawing a negative inference from Mr. Sauceda’s decision not to testify or speak, Judge Flournoy ran afoul of over four decades of Supreme Court jurisprudence that prohibits courts from penalizing or drawing negative inferences when defendants exercise their Constitutional right not to speak or testify.” The complaint noted that the Supreme Court had specifically addressed this issue in Mitchell v. United States, 526 U.S. 314, 330 (1999), and the Texas Court of Appeals had acknowledged that defendants have a right to remain silent during sentencing hearings in Lucero v. State, 91 S.W.3d 814, 816 (Tex. App. 2002).

Regardless, the SCJC declined to take any disciplinary action against Judge Flournoy – a typical outcome for most complaints filed against Texas judges.

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Most legal observers would agree that when two respected jurists attack each other’s rationale in published opinions, there’s probably a good reason for it.  Sometimes it’s a case in which the stakes are high, as in the death penalty appeal where Judge Stephen Reinhardt for the Ninth Circuit called the opinion of colleague Alex Kosinski…

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