The Volokh Conspiracy
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Former Democratic Socialist Houston Judge Franklin Bynum Reprimanded by Texas Judicial Disciplinary Board, for …
what the board finds to be willful violations of the law, bias against domestic violence victims, and, among other things, having "selfie while wearing a 'Defund Police' t-shirt ... on his Twitter feed."
An excerpt from Friday's more-than-9000-word-long opinion in In re Bynum, by the Texas Special Court of Review ("Robert Burns, Chief Justice of the Fifth Court of Appeals; Justice W. Bruce Williams of the Eleventh Court of Appeals, and Justice Jeff Rambin of the Sixth Court of Appeals"):
Before this Review Tribunal is an appeal de novo from a Public Reprimand issued by the Texas State Commission on Judicial Conduct (Commission) against the Honorable Judge Franklin Bynum (Petitioner), former judge of County Criminal Court at Law No. 8, Harris County, Texas. The Commission's Public Reprimand concluded that Petitioner
- failed to comply with the law and maintain competence in it;
- lent the prestige of his office to advance his private interest in his admitted agenda of extreme criminal justice reform;
- failed to treat people with whom he dealt in his official capacity with patience, dignity, and courtesy;
- performed his judicial duties with bias and prejudice, and/or manifested through words or conduct bias or prejudice in the performance of his judicial duties therewith;
- failed to accord the State the right to be heard according to the law;
- engaged in improper ex parte communications with defense attorneys and/or defendants while the State was not present;
- made improper public comments regarding pending and impending criminal proceedings which suggested to a reasonable person Petitioner's probable decision in cases involving law enforcement officials and the Harris County District Attorney's Office; and
- conducted extra-judicial activities that cast reasonable doubt on his capacity to act impartially as a judge and/or interfered with the proper performance of his judicial duties.
Based on the findings above, the Commission found that Petitioner engaged in "willful or persistent conduct clearly inconsistent with the proper performance of his duties, casting public discredit upon the judiciary and the administration of justice in violation of Canons 2A, 2B, 3B(2), 3B(4), 3B(5), 3B(6), 3B(8), 3B(10), 4A(1), and 4A(2) of the Texas Code of Judicial Conduct, Section 33.001(b)(5) of the Texas Government Code, and Article V, Section 1-a(6)(A) of the Texas Constitution." … [W]e conclude that the Commission met its burden of proving Petitioner willfully violated [those] Canons … and Article V, Section 1-a(6)A of the Texas Constitution and we issue a Public Reprimand to Petitioner….
Petitioner campaigned for Judge of County Criminal Court No. 8 in Harris County as a Democratic Socialist. At the time, he was known as an advocate for radical criminal justice reform. While in office, Petitioner made several posts on his social media accounts disparaging the Harris County criminal justice system and expressing his support for reforms.
During Petitioner's judicial tenure, the Harris County District Attorney's Office (HCDAO) filed numerous complaints with the State Commission on Judicial Conduct carefully detailing what it described as Judge Bynum's "incompetent," "willful," "persistent," "intentional or grossly indifferent" conduct. In July of 2020, the HCDAO filed a complaint against Petitioner, adding supplemental complaints in September 2020, November 2020, January 2021, and October 2021. While the detail is too voluminous to include here, in sum, the HCDAO alleged that, while on the bench, Petitioner "repeatedly and willfully ignored basic principles of criminal jurisprudence and conducted proceedings in his court with an unprofessional and irredeemable bias against the State of Texas and its prosecutors." …
As set forth below, the evidence demonstrates by a preponderance of the evidence that Petitioner refused to set aside his own personal views of what he wanted the law to be, failing to enforce Texas law as written.
[1.] Petitioner required prosecutors to appear in person for court proceedings in violation of Texas Supreme Court emergency COVID-19 orders….
[2.] Petitioner, sua sponte and without notice to the state, made no probable cause findings in violation of Article I, Section 13 of the Texas Constitution.
[3.] Petitioner sua sponte issued orders of protection prohibiting the Harris County Sheriff's Department from collecting DNA specimens in violation of the Texas Government Code…. [Note that in all these items the "in violation of" refers to the petitioner's violations; he was found to have violated the Texas Government Code by prohibiting the Sheriff's Department from collecting DNA specimens. -EV]
[4.] Petitioner set aside charging documents in violation of the Texas Code of Criminal Procedure….
[5.] Petitioner conducted bench trials without obtaining the State's consent to a jury waiver in violation of the Texas Code of Criminal Procedure….
[6.] Petitioner refused to impose mandatory jail time in violation of the Texas Code of Criminal Procedure….
[7.] Petitioner refused to forfeit defendants' bonds after the defendants failed to appear in court in violation of the Texas Code of Criminal Procedure….
[8.] Petitioner improperly credited a defendant with thirty days of jail time when he had not earned thirty days credit, in violation of the Texas Code of Criminal Procedure….
The Commission [also] alleges Petitioner lent the prestige of his judicial office to advance his private interests in violation of Canon 2B of the Texas Code of Judicial Conduct. Canon 2B provides, in relevant part, "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Specifically, the evidence demonstrates that after assuming the bench, Petitioner:
- openly expressed his continuing desire to contribute to the "demolition" of the criminal justice system as it currently exists during an interview with The Nation magazine;
- in public statements, made clear he would continue his advocacy for criminal justice reform in his role as a judge, only now from "within" the system; and
- took a selfie while wearing a "Defund Police" t-shirt given to him by the Chicago Public Defender's Office, which was posted on his Twitter feed and reposted on the Houston Police Officers Union's Facebook page.
During his testimony, Petitioner admitted he publicly expressed his desire for the destruction of the criminal justice system on at least two or three occasions. He explained, however, that he made such statements "sparingly" and only in the context of "seeking judicial office," and not for the purpose of the "destruction of criminal courts in general." We know, however, that Petitioner gave an interview to The Nation magazine stating his desire to "destroy" the criminal justice system after he was elected to the bench.
As for the "Defund Police" t-shirt, Petitioner initially testified he did not recall wearing the shirt. But after he was shown a picture of himself posted on his twitter account—wearing the t-shirt while thanking the Chicago Public Defender's Office for giving it to him—he acknowledged that he indeed wore the t-shirt after he assumed the bench. Petitioner also admitted that all or virtually all the cases before him involved law enforcement officials. Petitioner stated, however, that he did not believe wearing such a t-shirt would cause the public to perceive him as not impartial in the administration of justice because he did not "wear the shirt on the bench."
Petitioner testified he did not intend to lend the prestige of his judicial office to advance his private interests, but this alone is not dispositive of our inquiry….
In his post-submission brief, Petitioner argues that these statements were "within his First Amendment rights as recognized in Republican Party of Minnesota v. White (2002)." While it is true that a candidate for judicial office in a state where judges are selected by elections has a right to make statements about topics that he may decide—that right is not without limitation. Furthermore, Republican Party only delineates those rights to a candidate for office. The matter before us now involves statements made while Petitioner was a judge.
Petitioner has publicly expressed an interest in "demolishing" the criminal justice system; defunding the police force certainly has the appearance of furthering that goal. We find the Examiners established by a preponderance of the evidence that Petitioner willfully violated Canon 2B by lending the prestige of his judicial office during his efforts to advance his private interest of undermining the existing criminal justice system….
The Commission further alleges Petitioner failed to treat with patience, dignity, and courtesy people with whom he dealt in his official capacity in violation of Canon 3B(4) of the Texas Code of Judicial Conduct….
The evidence demonstrates Petitioner committed numerous acts that violated Canon 3B(4). Among them, Petitioner implemented a series of targeted court policies directed toward the HCDAO which included:
- denying HCDAO staff the opportunity to communicate with the judge or his staff by email, while not prohibiting similar communications between the judge or his staff and defense attorneys;
- prohibiting HCDAO staff from communicating with other court participants during Zoom proceedings;
- adopting a blanket policy of not accepting agreed pleas from the State;
- refusing to allow HCDAO staff to view court proceedings remotely; and
- forcing prosecutors to wait for hours on Zoom hearings before Petitioner showed up for court….
The Commission alleges Petitioner routinely performed his judicial duties with bias and prejudice, and/or manifested through words or conduct such bias or prejudice in the performance of same …. The Commission points out Petitioner's bias against the State was demonstrated by his act of denying the HCDAO staff the opportunity to communicate with him or his staff by email, while not prohibiting similar communications between himself or his staff and defense attorneys….
Petitioner also appeared prejudiced against victims of domestic violence and exhibited a pattern of refusing to protect victims of family violence. For instance, Petitioner made no probable cause findings in at least twenty cases of alleged family violence cases. And Petitioner refused to issue protective orders in domestic violence cases. Prosecutors testified that Petitioner's behavior interfered with their ability to represent victims in the state of Texas.
According to Petitioner, "the county is pretty safe right now" and family-violence cases are "over done." {After Petitioner stated that family violence cases are "over done," he remarked, "A person who murders will only do it once, so he is essentially harmless after that one murder is accomplished." One prosecutor testified that it was not uncommon for Petitioner to comment, "people don't normally murder again."} Petitioner believed and publicly stated that the HCDAO used domestic violence victims as "pawns." …
The Commission alleges Petitioner made adverse public comments regarding pending and impending criminal proceedings which suggested to a reasonable person the Petitioner's probable decision in cases, in violation of Canon 3B(10) of the Texas Code of Judicial Conduct…. The evidence demonstrates Petitioner took a selfie while wearing a "Defund Police" t-shirt given to him by the Chicago Public Defender's Office, which was posted on his Twitter feed and reposted on the Houston Police Officers Union's Facebook page. As Petitioner acknowledged, he presided over a misdemeanor criminal court and virtually all of the cases before him involved law enforcement officials. He also stated he understood, as it related to the message on his t-shirt, "it's a controversial thing to say."
Yet, despite the negative message displayed on his t-shirt, Petitioner claimed he treated all parties in his courtroom fairly, including police officers. He maintained the words "Defund Police" would not cause a reasonable person to anticipate his rulings in cases involving law enforcement officials and the HCDAO. We disagree. The message on Petitioner's t-shirt to "Defund" police could reasonably be seen by the public as an expression of animosity towards law enforcement officers—suggesting to a reasonable person Petitioner's probable decision in cases involving police officers. We are concerned that Petitioner continues to overlook the harm created by even the appearance of bias or prejudice….
Petitioner's public attacks on the criminal justice system in general, and the HCDAO specifically, created doubt that he could be fair in dealing with the State, despite his proclamation that his feelings about the criminal justice system would never influence his judgment….
Article V, Section 1-a(6)A of the Texas Constitution provides, in pertinent part, that a judge shall not engage in "willful or persistent conduct" that is "clearly inconsistent with the proper performance of his duties or cast[s] public discredit upon the judiciary or administration of justice."
As set out above, the evidence showed that Petitioner failed to comply with and maintain professional competence in the law in his handling of cases, exhibited bias in favor of criminal defendants and prejudice against the State, denied litigants and attorneys the right to be heard according to law, made public comments about pending or impending proceedings that suggested to a reasonable person his probable decision on particular cases, and engaged in willful and persistent conduct that was clearly inconsistent with the proper performance of his duties and cast public discredit upon the judiciary and the administration of justice.
UPDATE: As the title notes, Bynum is the former judge, but I should have briefly noted the source of his former-ness: He had been elected in Nov. 2018 (56-44%), but was then defeated in the Mar. 2022 Democratic primary (59-41%), and thus served from Jan. 1, 2019 to Dec. 31, 2022. Former prosecutor Erika Ramirez, who defeated him, won office in Nov. 2022 (51-49%).
