Wednesday, June 7, 2023, I attended an hour-long Texas Commission on Judicial Conduct hearing. It was the first one I’ve ever attended. The few that are held are typically private. This one, however, was public – at the demand of the judge who is being targeted for sanctions.

This Commission is made up of lawyers, judges, and civilians, and they are responsible for overseeing Texas judges. They are empowered to sanction judges.

The target of the hearing, Judge Franklin Bynum, demanded that the hearing be public, and I was invited to attend.

I want to tell you about that hearing because I believe in transparent government, and injustice gives me indigestion. And, more selfishly, because I am a Democratic Socialist, too.

First, I’ll explain what Judge Bynum stands accused of doing. Next, I’ll give a short opinion about why I think Judge Bynum is being targeted, followed by an opinion about how TOUGH ON CRIME judges are not often subject to the same treatment. Then, I’ll explain why I think the public needs to know about this.

The Accusation:

Judge Bynum spoke at length during the hearing, and here is the gist of his testimony, interspersed with some background facts:

After COVID hit in March of 2020, Judge Franklin Bynum in Harris County Criminal County Court at Law #8 – like all the courts – switched to a Zoom docket. The attorneys and their clients, accused of misdemeanor offenses, would appear remotely via Zoom.

There are many agencies that participate in a criminal court. The sheriff’s office handles security. The clerk’s office handles the official record keeping. The probation department keeps track of the defendants that have pleaded or otherwise have been convicted and are being supervised. The prosecutors from the district attorney’s office, of course, handle the prosecution side of the litigation.

In Harris County, the courtrooms are massive. Houston is Texas’s largest city, and the courthouse reflects the size of the courts’ dockets. Ordinarily, COVID-free, a Harris County courtroom can contain hundreds of people. During the initial stages of the COVID shutdown, however, a mere skeleton crew was allowed inside those courtrooms, with most of the participants appearing by Zoom.

As Judge Bynum explained during his temporary sanction hearing, he had representatives physically present in his court from all the usual agencies that play a role in a criminal courtroom – except for prosecutors from the Harris County District Attorney’s Office.

The Harris County District Attorney’s Office refused to send prosecutors to the massive courtroom, where they would have had many multiples of 6-feet worth of space around them. Judge Bynum received some communications that the prosecutors’ refusal to send people in person caused extra work for those actually present. Clerks, for example, who are not employed by the DA, were doing some of the ADAs’ work.

Judge Bynum sent an email to the DA’s office about this staffing issue. He offered a large jury room for them to set up in alone to accommodate health concerns. The DA not only refused but accused Judge Bynum of trying to kill prosecutors and their families.

The email that Judge Bynum referred to as a staffing email, triggered communications with the Regional Presiding Judge, who urged Judge Bynum to withdraw his “order” for the prosecutors to appear in court. Judge Bynum took the position that he never issued an “order,” as judges don’t issue orders by email. He sent a staffing email, not an “order.” Judge Bynum did not threaten the prosecutors with contempt for violating the staffing email.

Over the course of a week or so, Judge Bynum and the Regional Presiding Judge had several phone conversations. During one of those conversations, the Regional Presiding Judge told Judge Bynum that the Chief Justice of the Texas Supreme Court wanted Judge Bynum off the bench.

Fast forward through the rest of the COVID pandemic, through the 2022 election, which Judge Bynum lost (he is no longer on the bench in Harris County).

After the Harris County District Attorney initiated a grievance with the Texas Commission on Judicial Conduct against Judge Bynum, a conversation between the Regional Presiding Judge and Judge Bynum came up, wherein Judge Bynum recalls the Regional Presiding Judge stating that the Chief Justice wanted Judge Bynum off the bench.

The Regional Presiding Judge then initiated a separate grievance against Judge Bynum with the Texas Commission on Judicial Conduct, alleging that either the phone call never happened, or it is false that the Regional Presiding Judge ever made statements that Judge Bynum said she said.

Judge Bynum’s accuser was not in attendance at the hearing, Wednesday, June 7th. She was not required to testify. Judge Bynum had no opportunity to cross examine her.

During the June 7th hearing, Judge Bynum was asked to agree or disagree with the Regional Presiding Judge’s allegations. Judge Bynum disagreed that he ever issued any “order” via email. He also testified that the Regional Presiding Judge did in fact say that the Chief Justice of the Texas Supreme Court told her that he wanted Judge Bynum off the bench.

Apparently, no one from the Commission has asked the Chief Justice for a statement, nor did he appear to testify.

During the hearing, one of the few members of the Commission that asked questions, demanded to know if Judge Bynum told the media about this issue. The question about whether Judge Bynum gave a statement to the media was accusatory in tone, the questioner sternly frowning.

Note, when I arrived at the hearing room, the door was covered with signs indicating that it was a private meeting, even though Judge Bynum had demanded that the hearing be made public – multiple times.

Why Bynum?

He’s a Democratic Socialist. That’s why. Texas judges are expected to maintain LAW AND ORDER. They’re expected to be tough on crime. Judge Bynum ran on a platform opposing mass incarceration and opposing plea mills. Unlike many lawyers that run for criminal court judge, Bynum has never been a prosecutor. The Regional Presiding Judge is a former prosecutor.

The Harris County District Attorney’s Office and more conservative members of the Harris County community took aggressive stances against Judge Bynum during his tenure on the bench..

While he is currently off the bench, via democratic means, Judge Bynum can run for reelection in the future if he so chooses – unless – the Texas Commission on Judicial Conduct takes action that prevents him from doing so, overruling hypothetical future democratic processes.

And, so, while Texas Commission on Judicial Conduct sanction hearings are rare, it is not surprising to me that the Texas judicial establishment would target Judge Bynum for Speech.

Here’s why I think you should know:

I reread George Orwell’s novel 1984 a few weeks ago. It had been years, and I wanted … well, I’m not sure why I needed to reread it. I’m glad I did, though.

“War Is Peace. Freedom Is Slavery. Ignorance Is Strength.”*

This tripartite is the motto of government that dominates life in 1984. The main character, Winston, is a lower-level government worker, whose job is re-writing history so that the government is always is right, always has been right, and always will be right. If anything in a newspaper article written years before does not match up to the present ‘reality’ dictated by the government, Winston changes that old newspaper article to reflect the ‘truth’ the government wants to impose, and all old copies are destroyed by fire. For example, Winston’s country is always at war – either with Eurasia or with Oceania. But the government requires everyone to believe and say that they’ve always been at war with whomever they are currently at war. If they’re currently at war with Oceania, the old newspaper articles referencing war with Eurasia must be changed to say that they were at war with Oceania in that past era. Truth be damned – the truth is what the government says it is.

One of the many points of 1984 is that a fascist government does not merely control the physical bodies within its borders, it also controls ‘truth’ and history, as it polices the thoughts of its subjects to ensure absolute conformity of thought, to in turn ensure absolute docility and submission to the few privileged people in power.

We are blessed to live in a Constitutional Republic. On the national level, we are protected by the First Amendment: “Congress shall make no law […] abridging the freedom of speech, or of the press.” In Texas, our right to speak our mind is protected by Article I, Section 8 of our state Constitution: “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”

I twinge when anyone – especially anyone sharing my own political persuasion – urges limitations on our right to Free Speech.

The reason I twinge is that there are very few methods of resistance for working people, even in a country with a relatively high degree of ‘freedom,’ compared to other countries. Yes, voting is important, and we should all defend our own – and each others’ – right to vote. That said, there are few good choices at the ballot box. Often, we find ourselves voting for the ‘lesser of two evils.’ Further, because there are so many governmental positions to vote for, most of us don’t know much – or anything – about the people we are voting for. I’m not pointing fingers at anyone but myself, here. I am usually only informed on about 10-15% of the races on a ballot. I rely on recommendations from newspapers and other organizations, with whom my worldview and values align.

We usually don’t know, as we cast our ballot, if the person we vote for is going to behave in a manner that we approve of once they are elected. Compounding our ignorance, after they achieve their position, we often don’t know how they are behaving at all, unless the media covers them for some reason.

If we don’t know much or anything about the person we voted for, and the media is not covering their behavior after election, what tools are left to try to ensure accountability for that elected official?

The medias – both the established media and social media – are an incredible method of resistance for The People in our country. When there is a power imbalance, and someone is abusing their power, shame and ridicule are tools that working people can use to try to change the behavior of those who hold positions of power.**

We need Free Speech as a means of deploying the tools of shame and ridicule.

How do shame and ridicule work in favor of The People in our country? Well, here’s an example:

Elected Official X wants to keep their job. It comes with a good salary, benefits, power to affect change in the community, and prestige within their community. Elected Official X, therefore, maintains good relationships with the local media in the hopes of keeping favorable coverage, ever with an eye to the next election. If members of the electorate, however, witness Elected Official X committing bad acts, they can take to social media to express their outrage or concerns. In this way, they circumvent the local media, over whom they have less control than Elected Official X. Journalists for the established media, however, do monitor social media, and they can take up stories found there. If any ambitious individuals in the community want to run for office, they can use any bad establishment or lay press as grounds for running against Elected Official X. In this way, shame and ridicule – either published in official sources or on social media – can function as a powerful tool to ensure accountability for elected officials.

The right to speak to the press and give them information is a precious one, and I twinge whenever anyone suggests it should be limited. We live in a Constitutional Republic, and I don’t want anyonewho holds power using their own power to limit what can and cannot be said about themselves, ever. Government officials, with their coveted jobs at stake, should not get to control what people say about them (with some limitations – see New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).

Judicial races are especially problematic. Out of all the members of the voting public, lawyers that have practiced with the candidates, or who have litigated cases in those judges’ courts, know the most about particular judicial candidates.

There are consequences, however, for speaking out against a judge that is either bad at the job or abuses their power in some way. Lawyers carefully cultivate relationships with judges, contributing lots of money to campaigns. They know that their treatment in court on future cases may depend on it. Lawyers that speak out against a judge may very well face a hostile work environment the next time they have a case in that judge’s court. (Pro-tip: If there are lawyers speaking out about a judge, they perceive that the judge is politically weak and won’t be there long).

I’ll give you a personal example: I filed a grievance with the Texas Commission on Judicial Conduct against a judge, whose name I will not repeat here, in part, for threatening defense lawyers with contempt for making valid and legally correct objections during a trial. I took issue with a judge misusing the contempt power to silence a defense attorney and prevent him from doing his Constitutionally mandated job.*** Later, I had an expunction assigned to that same judge’s court. Expunctions are easy-peasy-lemon-squeezy. Either the State is opposed to it, and you have a hearing, or they’re not opposed, and the judge makes sure the person’s entitled to the expunction and signs the order. When there is no opposition, an expunction hearing takes seconds. This expunction was not opposed. The person was entitled to the expunction. I just needed a judge’s signature for the client to clear their good name. The judge, however, recused her/himself from the case on the day of the signature because of the grievance I filed. The client, therefore, had to wait for a judge’s signature, delaying their ability to clear their name. The recusal was not necessary – I didn’t ask for it, nor did the State. If the judge had signed the expunction, all records would have been destroyed. My act of speaking out, however, cost that client additional time of reputational damage. I suppose the judge had a duty to recuse him/herself if s/he felt biased against me for my grievance, which speaks volumes.

Lawyers, therefore, for both selfish and altruistic reasons don’t speak out against bad judges very often.

Okay, so if lawyers don’t speak out in the established media or lay media, how is the public supposed to know which is the ‘lesser of two evils’ on their ballot when they vote for the candidates running for the bench?

One way, for a particularly determined individual that wants to know everything about the candidates, would be to check the Texas Commission on Judicial Conduct’s website for public reprimands and sanctions against incumbent judges.

The problem with that, however, is the Commission does not take action against many judges. Moreover, unless the Commission takes particular types of action, any complaints against the judges are secret.

Secrecy is the enemy of democracy, and Texas judges are elected.

Remember, the hearing against Judge Bynum on Wednesday, June 7th, was behind a door that started out papered with signs that it was a private meeting – until Judge Bynum demanded that they be removed. He demanded a public meeting more than once upon his arrival before the signs were removed.

Judges that are TOUGH ON CRIME enjoy a more privileged position than Democratic Socialist Bynum.

Consider the actions of Judge George Gallagher of the 396th District Court in Tarrant County and his treatment by the Texas Commission on Judicial Conduct. During the trial of Terry Morris, Judge Gallagher “ordered his bailiff to electrocute the defendant three times with a stun belt – not for legitimate security purposes, but solely as a show of the court’s power as the defendant asked the court to stop ‘torturing’ him…” Morris v. State, 554 S.W.3d 98, 102 (Tex. App.—El Paso 2018). This quote is not mine – it is taken from the El Paso Court of Appeals decision on Morris’s case. Other judges characterized Judge Gallagher’s actions in this way.

What did the Commission do about it? Judge Gallagher received a “Public Warning.” He tortured a defendant in his court for no legitimate reason, and he was “warned.” Judge Gallagher remains on the bench in Tarrant County.

Still more intriguing about the Judge Gallagher case, the Commission made an interesting finding in its Order: “The trial court’s record is devoid of any description of a security threat.” The reason this finding is interesting is because Judge Gallagher testified to the Commission that “the sole reason he ordered the activation of Mr. Morris’ stun cuff was for security purposes but admitted this was not fully apparent from the record of the proceedings.” The Commission noted that “Judge Gallagher acknowledged the contemporaneous record of the proceeding does not reflect” the security threat that Judge Gallagher later referred to, after the fact. Judge Gallagher produced seven people that were in the courtroom that day to provide statements that supported his “security threat” reasoning for electrocuting the defendant, including the defendant’s own lawyer.

Despite the factual issue there, the Commission did not find that Judge Gallagher provided a false statement in his testimony. But if his testimony was believed, and the Commission believed there was a bona fide security threat, would the Commission have publicly warned him? It seems wrong to publicly warn a judge for taking steps to control a security threat in his courtroom…

Judge Gallagher is not a socialist.

And – after writing this piece, I will never appear in that court, believe me!

Now, back to Judge Bynum. He said – and had extrinsic evidence supporting it – that the Regional Presiding Judge made a certain statement to him that the Regional Presiding Judge now claims never happened. This is a he-said/she-said, and the ‘she’ was not required to appear or testify under oath, Wednesday, June 7th.

Ultimately, as the process unfolds, what’s at stake for Judge Bynum? First, the Commission can strip the title “judge” from Bynum such that he can no longer use the title. He otherwise keeps it for life, even though he is off the bench. Second, they can prevent him from running for any judicial office, ever again. Further, there is the potential for this situation to implicate Judge Bynum’s law license. According to the Texas Disciplinary Rules of Professional Conduct, which lawyers are required to follow, “[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Tex. Disc. Rule 7.01, Comment 11.

Conclusion:

I’m terrified.

Will writing this piece and publishing what I saw and heard on June 7th, coupled with my opinions, result in retaliation? It is possible.

But if we don’t exercise our First Amendment rights, we will lose them. There is too much at stake.

I look around the state of my birth, and I see State-level actors wrestling control from progressive cities. I see The People democratically electing more progressive district attorneys, who refuse to prosecute low-level drug crimes, as city councils rein in their police departments from enforcing drug laws, and then State-level actors overruling urban voters and sending in troops to enforce drug criminalization. I see the State of Texas seizing control of the largest Independent School District, spitting on local democracy, taking control of the education system of one of the most diverse places in Texas, after years of political battles over what ‘truth’ may be told in schoolbooks, as radical politicians want to refer to slavery as “involuntary relocation.”

I see democracy eroding. I see a never-ending battle for what constitutes ‘truth’ and how we frame our history.

Wednesday, June 7th, I saw a State entity go after a former judge, who is a Democratic Socialist, for Speech.

In that he-said/she-said dispute, how is credibility to be determined? Will Judge Bynum’s politics make him less credible than the Regional Presiding Judge (a former prosecutor) for a Commission that merely publicly warned Judge Gallagher for torturing a defendant and did not call Judge Gallagher a liar, even though the official record of the proceeding did not support his testimony?

I see a battle over ‘truth’ in Judge Bynum’s case, with an entity that ostensibly wanted to keep the issue secret, whose members appeared upset that Judge Bynum had commented to the media about it …

And I am terrified.

*Orwell, George. (1949). 1984. Harcourt Brace Jovanovich, Inc. (reprint 1st Ed.).

** An anthropologist, James C. Scott, wrote about this in his book Weapons of the Weak, Everyday Forms of Peasant Resistance. (1985) Yale Univ. Press (1st Ed.).

***The Commission took no action against the judge.