Pubdate: Wed, 04 Oct 2006 Source: Houston Chronicle (TX) Copyright: 2006 Houston Chronicle Publishing Company Division, Hearst Newspaper Contact: http://www.chron.com/ Details: http://www.mapinc.org/media/198 Author: Brian Rogers JUDGE REMOVED FROM TRIAL OF TEENAGER IN DRUG CASE Attorney Says Policy Of Requiring Jail Time Is Unjust A Harris County judge's policy of requiring jail time for everyone convicted of drug possession has gotten him removed from the case of a 17-year-old high school student. The recusal was the second time this year that state District Judge Brian Rains has been disqualified from presiding over a trial. Although the District Attorney's Office usually sides with judges in recusal hearings, Assistant District Attorney Scott Durfee agreed with defense attorney Dick DeGuerin that Rains' policy is not in the interest of justice. "Under the circumstances, it's better to have someone else hear it," Durfee said. DeGuerin moved for recusal last month after Rains said he would not consider probation or deferred adjudication for the student, who was charged with possessing small amounts of cocaine and marijuana. In a brief hearing Thursday, DeGuerin argued that Rains has an "inflexible and arbitrary rule" requiring that offenders convicted of possession spend some time in jail. Administrative Judge Olen Underwood granted the recusal. Rains, who presides over the 176th District Court and has been a judge for 18 years, did not attend the hearing and declined to comment afterward because the case is pending. It had not been assigned to a new court as of Tuesday. DeGuerin argued that a judge must consider the full range of punishment in any case. "A judge, just like a juror, should be open to hearing the evidence before making a decision," he said in the hearing. He added that the teenager admitted his mistake and was trying to get on with his life by finishing high school. Any other felony judge in Harris County would have allowed probation or deferred adjudication, DeGuerin said. Defendants who complete the terms of deferred adjudication avoid final conviction, but the fact that they were charged remains on their records. DeGuerin said he and the District Attorney's Office agreed to a plea deal involving probation or deferred adjudication, but both knew Rains would not accept it without some jail time. As they expected, he refused to consider the agreement as it was, DeGuerin said. Unusual dealsIn the recusal hearing, DeGuerin said prosecutors and defense attorneys often have to make unusual deals in Rains' court because of his policy. That can mean reducing a felony case to a misdemeanor, he said, or keeping a defendant in legal limbo because Rains won't sign off on a deal. Durfee said in the hearing that Rains' policy can leave the impression that he does not go into each case with an open mind. It is rare to see a recusal granted, he said later, but not unusual for attorneys to file motions asking judges to remove themselves from cases. Underwood presides over a regular docket of recusal hearings in Harris County every month, Durfee said. As administrative judge, Underwood oversees court operations in a 34-county area, reviewing local and judicial rules to ensure that courts meet all laws, guidelines and standards. He declined to comment after the hearing. Reactions to recusalNone of the attorneys in the case would speculate on whether the recusal may bring similar motions from other lawyers whose clients face drug-possession charges in Rains' court. However, the vice president of the Harris County Criminal Lawyers Association said that's what he expects. "We've been aware of this illegal policy for a while," said Mark Bennett. "But I don't think anyone else has tried to recuse him before." Bennett said it may be better to stick with Rains in some cases, but for most cases, if the policy makes a difference to the defendant, the lawyer would have to file for recusal. HCCLA President Robert Fickman agreed, saying each defendant should be judged individually and have his or her circumstances factor into the punishment. It is unusual for prosecutors and defense attorneys to agree on anything, much less on a recusal, said Sandra Guerra Thompson, a professor at the University of Houston Law Center. "Most judges have no dog in the fight, so they're impartial," she said. No wrongdoing allegedGerald Treece, constitutional law professor at South Texas College of Law, said it's important to note that Rains is not being punished or accused of wrongdoing. "If anything, there's a degree of honor in being so honest," Treece said. "These are just his principles, and he's going to stand by them." Jack Thompson, administrator of the county's 59 district courts, said about 50 recusal motions are filed each year, and two or three are granted. Rains was removed in February from presiding over the case of a man facing two charges of sexual assault of a child. Defense attorneys said he revoked the man's bail without notice or a hearing. Rains was appointed to the bench by Gov. Bill Clements in August 1988, after Judge William M. Hatten retired. He previously had been the chief prosecutor in the 176th court. Rains, a Republican, was elected that November and has won four elections since. In his 2004 campaign, Rains said he favored changing the way courts handle low-level drug offenders. He advocated reduced sentences for addicts and improved funding for treatment programs. - --- MAP posted-by: Elaine