Judge Neves' Comments Were Out of Line


I was riding in a police car as a young prosecutor. Lights were flashing. Sirens on. Adrenalin pumping including mine. It was exhilarating, scary, and dangerous.

Officers must frequently make charging decisions "running hot" with the adrenalin still pumping. Those decisions get reviewed by prosecutors, defense attorneys, trial court judges and appellate court judges.

Judge Kerry Neves announced via Facebook that he issued an order that no plea bargains for probation or deferred adjudication would be approved where a member of law enforcement was threatened or placed in danger. He wrote that he required officers' approvals on plea bargains and written apologies by the accused. He explained to the media that "I wanted to do something to restrain the violence against police officers."

The order lists numerous applicable offenses and a qualification for some exceptions. Judge Neves described the qualification to this newspaper, "make me a pitch... (for) mitigating circumstance." He said he explained this to the prosecutors.

Judge Neves questioned why this order would be a problem in cases where the person was pleading guilty anyway.

Well there are many reasons.

There is nothing wrong with informing police officers of pending deals and asking for input. The prosecutors are required to give such notice to all crime victims. Sometimes the police are victims. The prosecutors should be talking to the police about all of their cases anyway.

But giving the police the authority to veto plea deals is dangerous. The DA has to protect the entire community. The prosecutor's duty to see that justice is done sometimes requires not doing what the victim wants.

Giving the police that power can change what happens at the scene of the alleged crime. The whole point of the judicial suppression of evidence is to discourage the police from violating a defendant's rights.

Judges are not allowed to "comment on the weight of the evidence" in front of a jury. That means the judge cannot let the jury know his opinion of which witnesses to believe. Jurors may pick up on preferential treatment shown to police witnesses and draw conclusions.

Trials do not end at the finding of guilt. Decisions are made after that require the judge to remain impartial. Judges and juries are required to be able to consider the full range of punishment to be eligible to make punishment decisions. There may be just enough wiggle room in the order to escape recusal on that part alone but maybe not when considered with the totality of the order and social media posts.

Prosecutors, defense attorneys and defendants make strategic decisions on how to and whether to go to trial based on what they expect from the judge. Expecting the police to get preferential treatment will dominate those decisions rather than an evaluation of the merits of the case.

Defendants have the right to remain silent during punishment hearings. Requiring the apology causes an involuntary waiver of that right.

Judge Neves never intended to do anything wrong. He was moved by emotions felt by vicariously witnessing officers gunned down in senseless acts of violence. Judges are human.

But the decisions made by judges, especially in policing the police, have to be made while "running cold" one case at a time.

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