The Worst Judges in Texas

In these courtrooms, justice comes to a screeching halt

The Worst Judges in Texas

*A clarification has been appended to this story.

It’s not a good time to be a Texas judge. President Bush’s nomination of Texas Supreme Court Justice Priscilla Owen to the U.S. Fifth Circuit Court of Appeals remained caught in the craw of the U.S. Senate for four long years, as her various shortcomings and the sorry state of the civil justice system in Texas were bandied about from The New York Times editorial page to the radio rants of Howard Stern. She wasn’t so much confirmed last spring as she was coughed out, like a bundle of mouse bones from the beak of a barn owl. Meanwhile, the Court of Criminal Appeals, our second most prestigious court, has become a national laughing stock, thanks in no small part to Justice Sharon Keller’s toe-curling performance on the PBS show Frontline, in which she tried to explain why a man exonerated by DNA evidence should have been kept in prison. A nation of CSI junkies was left shaking their heads, muttering, “Where do they find these people?” We’re tempted to reply (in Keller’s defense), “You should see our crime labs!” Instead, we present the following list, as an admittedly unscientific demonstration that you don’t have to look very hard to find a bad judge in this state.

We began our search with no preconceived notion as to what makes a judge “bad.” Instead we talked to dozens of attorneys, including former prosecutors and judges, to find out what makes them mutter around the water cooler. We heard stories—virtually all off the record, for obvious reasons—about incompetent judges, partisan judges, insane judges, mean judges, and judges on a mission that had little to do with justice. The following five, each in his or her own way, stood out above the rest. Bad judges of Texas, we salute you. Take heart and soldier on: The nation is waiting to hear your stories.

Jan Krocker

Houston, 184th District Judge

Jan Krocker

In a county known nationwide for being tough on crime, District Judge Jan Krocker has set herself apart from her fellow judges as one of the toughest. Nineteen of Harris County’s 24 criminal district court judges, including Krocker, cut their teeth as prosecutors in the district attorney’s office. What’s different about Krocker, a Republican in her early 50s, is that she seems to have never really left. A dramatic case in point was her intervention in 2004 in the death penalty appeal of a young man named Martin Draughon. In 1987, while still an assistant district attorney, Krocker prosecuted Draughon for shooting a man to death during a restaurant robbery. During his trial, Draughon’s attorneys argued that the killing was the accidental result of a ricochet from a warning shot, and that Draughon shouldn’t have to face the death penalty. Krocker got the conviction, but Draughon’s appellate attorneys later produced convincing evidence that the Houston crime lab, already under public scrutiny for failings in its DNA work, had blown the ballistics testing of the bullet.

That revelation was embarrassing enough, but what happened next was even worse. Krocker—by now Judge Krocker—had been following the case as it made its way through the appellate process. According to the Houston Chronicle, Krocker contacted the appellate judge and insisted on testifying in the proceedings. The state team did not want her help, calling her intervention “improper and unnecessary.” But Krocker was adamant, arguing that her reputation was on the line in the case, the Chronicle reported. If it wasn’t before, it certainly was after Krocker’s efforts became public. The Chronicle editorial board castigated the judge, saying the case raised “serious issues regarding her impartiality.” At least one defendant convicted in Krocker’s court in an unrelated case requested a retrial, arguing, in effect, that one prosecutor in a Harris County courtroom was enough. The judge in Draughon’s appeal eventually allowed Krocker to submit written affidavits, and then granted Draughon a new trial anyway.

How did it come to this? To be sure, Houston has always been a bad place to be a criminal defendant, as we might expect in a town where the surest way to the bench is through the district attorney’s office. (To cite just one telling example, in 2002 almost half of all the convicts in Texas serving prison time for a crime involving less than a gram of dope came from Harris County.) Dick DeGuerin, Houston’s pre-eminent defense attorney, says the tipping point came in the early 1990s, when the district attorney’s office went after a judge named Robert Lanford for throwing out an indictment of a defendant accused of murdering a jail guard. Legendary DA Johnny Holmes and his fellow prosecutors openly supported Lanford’s opponent in the next election, and just like that Lanford was gone. The rise of a powerful victims rights group and a rapidly growing Republican party resulted in a Harris county judiciary that was uniquely attuned to crime victims—and voters. (All plea bargains in Houston, for example, must be approved by the victim or the victim’s family.) Before long, DeGuerin recalls, it wasn’t enough to just be Republican: Judges began vying with one another to stand out for their toughness, making headlines with unusual probation requirements, lengthy sentences and the like. “There’s so goddamn many judges that voters don’t know one from another,” says DeGuerin. “They think they have to do something outrageously mean just to get some attention.”

Sally Montgomery

Dallas, County Court at Law No. 3

Sally Montgomery was the only Dallas Democrat to win a race of any kind in 2002, when she was elected to Dallas County Court at Law Number Three. It was a win worth crowing about—county courts in Dallas can hear civil cases worth millions of dollars. But having Montgomery as a standard bearer for the local party has proved to be something of a mixed blessing for Dallas Democrats. For one thing, her Democratic credentials are pretty thin. Montgomery, who is in her mid-50s, began her career in public service as a Republican in 1996, when she was elected civil court district judge. After serving only one term, however, she was booted out by GOP primary voters in 2000. Montgomery has said her troubles with the Dallas Republican party began when the party chair asked her to do something unethical as a judge. But attorneys from both parties say that the real reason that the Republicans threw her overboard is that Montgomery is just a really bad judge. In the 2005 Dallas Bar Association judicial evaluation poll, a staggering 67 percent of attorneys responded “no” when asked if Montgomery correctly applied the law. As one lawyer put it, “How can someone be a judge if they don’t know the law?”

That is a question that must have occurred to judges on the Fifth Court of Appeals in Dallas, who have been kept busy correcting Montgomery’s mistakes over the years. Montgomery’s campaign Web site proudly reports that the judge has been reversed only twice since she became a county court at law judge. That number is inaccurate: According to Westlaw, she has been reversed, either in whole or in part, in a total of four cases. (In a fifth case, she had an order vacated.) That number still sounds pretty low, until you consider that the appellate court has only considered eight of her opinions on the merits. Including her cases as a district judge, Montgomery has now been reversed 10 out of 19 times—or about 53 percent of the time—in rulings judged on the merits, according to Westlaw. (For comparison, the average reversal rate of cases heard by the Fifth Court of Appeals is around one in three.)

In addition to the competency issue, Montgomery also has a reputation as something of a loose cannon. She managed to earn a rare personal rebuke from the appellate court in a 2000 opinion issued in the waning months of her tenure on the district court. An attorney who had publicly backed Montgomery’s opponent in the primary sought to have Montgomery removed from a case still pending in her court. A truculent Montgomery ignored the request and continued issuing rulings in the case, a move that the appellate court noted “appeared to be motivated by animosity stemming from a lost election.” They concluded with a warning to Montgomery: “We do not condone such conduct and expect it to stop.”

Whatever her shortcomings as a jurist, Montgomery, who faces an opponent in the Democratic primary next month, is known as a clever campaigner. On her campaign Web site, she takes credit for leading the local Democratic party back from the brink of ruin. Her campaign consultant, Bruce Rothstein, suggested that her consistently low ratings from the Dallas Bar Association are the result of some kind of coordinated campaign against her by Republican-dominated corporate firms. Yet Montgomery had a terrible rating in the bar poll when she herself was a Republican. (In 1999, 49 percent of respondents reported that Montgomery did not correctly apply the law, one of the lowest ratings of any judge in the poll.) Sure, she fooled them once, but how dumb does this judge think Dallas Democrats are?

Scott Brister

Texas Supreme Court

 Conventional wisdom has long held Nathan Hecht, who has been on the Supreme Court since 1988, to be the leader of the court’s well-documented rightward drift. In recent years, however, Hecht has found himself in danger of being outflanked on the right by a recent addition to the nine-member, all-Republican court, Scott Brister. Formerly the chief judge of Houston’s 14th Court of Appeals, Brister, who is in his early 50s, was appointed in 2003 by Governor Perry to fill a vacancy on the high court, which is the court of last resort for all civil matters in Texas. A conservative Christian who once provided pro bono legal assistance to an anti-abortion group, Brister was not exactly a stealth candidate. At his rancorous nomination hearing in the state Senate, he responded “depends on the circumstances,” when asked whether he believed in the separation of church and state. As a district judge in Houston in the late 1990s, he posted the Ten Commandments on his courtroom wall and refused to remove them, even after he was sued by an attorney. But First Amendment issues—thus far, at least—have not been the real problem with Brister’s brief tenure on the Supreme Court. The more serious issue, court observers say, is that Brister doesn’t seem to really believe in the very system of civil justice of which he has managed to make himself a chief administrator. As one attorney who has practiced before him put it, “Brister considers juries to be part of the problem in Texas.”

Brister has said he thinks voir dire, the jury selection process, is largely a waste of time. He holds a similar opinion of expert witnesses and opening and closing statements. In November of 2002, about a year before his appointment to the Supreme Court, he shocked his colleagues on the Supreme Court Judicial Advisory Board by launching into a 10-minute rant about a proposed rule change that he felt unfairly benefited plaintiffs’ attorneys. “The attorney-client privilege is supposed to protect lies,” he declared at one point. “Indeed, that’s all it protects, lies,” he said. “I think it was his audition for the Supreme Court,” one attorney who witnessed Brister’s diatribe said.

In fact, Brister’s administration of the 14th Court of Appeals was the best advertisement for his anti-plaintiff credentials. Efficiency was the watchword while Brister was the chief judge, and plaintiffs’ attorneys learned to dread appearing before him. When the Houston Chronicle reported that plaintiffs did especially poorly in the 14th Court of Appeals, winning reversals in only 4 percent of cases, Brister agreed that the figure was “pretty low” but said “it just happened to be the cases we got that year.” Others have a different explanation: that Brister was on a mission to overturn jury verdicts and to rein in what he considered to be an out of control tort system in Texas. In 1998, Brister wrote a now infamous dissent in a case called Schindler Elevator Corporation v. Anderson, in which a family was awarded damages after their son was badly injured by an escalator. Schindler sought unsuccessfully to have its appeal reheard by the entire court. Brister sided with the company in his dissent, arguing that the excessive damages awarded in the case were a product of the jury’s alleged desire to improperly assess punitive damages on the company. But Brister then launched into a discussion of the various legal issues raised by the trial, venturing far afield into arguments that Schindler’s attorneys never even mentioned in their brief. Brister’s ruminations prompted three of his puzzled colleagues to write concurring opinions challenging Brister’s dissent, including a stinging rebuttal from a conservative Republican named Richard Edelman. What could “suggest a greater lack of impartiality,” Edelman wrote, “than to decide a case based… on an issue not raised by either party?” It didn’t matter what happened in court, Brister seemed to be saying—he knew what the defendant meant to argue. “Judge Brister,” says one plaintiffs’ attorney, “is the great mind reader of the Texas judiciary.”

Brister has continued his assault on juries as a Supreme Court justice. Under the Texas Constitution, the Supreme Court is supposed to base its rulings only on questions of law; it does not have the authority to go back and consider the facts presented at trial. Supreme Court justices, in other words, are not supposed to second-guess juries about which side made a more compelling case in the original trial. In his short time on the court, however, Brister has helped chip away at this constraint on the court, in what most longtime observers of the court consider a very alarming trend. Last summer, Brister wrote the court’s opinion in a case called City of Keller v. Wilson, in which he appeared to be advancing a new, much more expansive framework for how appellate judges should weigh factual evidence, supplanting decades of previous case law and tradition. “You can get it down to black and white if you want to,” a former Republican Supreme Court Justice said of the trend in the court. “Somebody who accepts the City of Keller as the proper philosophy—they don’t believe in the jury system.” Nor do they respect adherence to precedent, which has always been the cornerstone of American jurisprudence. These days, as another former Supreme Court Justice told the Observer, instead of stare decisis, “what we have is, ‘Well, we’re just going to do whatever we want to do.’”

Edith Jones

U.S. 5th Circuit Court of Appeals

Edith Jones

Edith Jones had very little experience in criminal law when Ronald Reagan appointed her in 1985, at the tender age of 35, to the prestigious Fifth Circuit Court of Appeals, which is for all practical purposes the last stop for criminal defendants in our part of the world. Raised in San Antonio and educated at the University of Texas School of Law, she had spent 10 years doing mostly bankruptcy work for a blue chip Houston firm, along with a year as general counsel of the Texas Republican Party. She has since come to see the criminal justice system, she said in a 2003 speech to the Federalist Society, as a “cat and mouse” game, the result of years of overreaching by the Supreme Court in its effort to protect the rights of defendants. In her 20 years on the bench, Jones has done her dead-level best to crush as many mice as possible, dramatically raising the bar for appellate relief in the process. Along the way, she has become something of a star in conservative legal circles, having been mentioned as a possible candidate for every opening on the Supreme Court since the late 1980s.

She has also become something of a celebrity—though for different reasons—among the small circle of dedicated attorneys who do death penalty appeals in Texas. Jones is best known for her opinions in the infamous “sleeping lawyer” case, in which a defendant named Calvin Burdine was granted a new trial after jurors testified that his court-appointed attorney had slept through portions of the original trial. In 2000 a three-judge panel that included Edith Jones overturned the ruling, with Jones infamously opining that it was “impossible to determine” whether the attorney’s naps had actually hurt Burdine’s chances at trial. When the entire Fifth Circuit met to reconsider her ruling the following year, however, Jones’ opinion was reversed and Burdine was granted a new trial. An unabashed Jones joined in a dissent that stood by her original reasoning, which by now had become national news. “The thing about Edith Jones is, she doesn’t really change her mind,” one attorney said.

A mentally retarded inmate named Walter Bell was also unfortunate enough to draw Jones on his original appellate panel, which meant she remained attached to his case throughout a lengthy appellate process. (Bell spent more than 25 years on death row.) She wrote an opinion in 1988 that blasted Bell’s attorney for waiting until the last minute to file a habeas petition, a transgression that she compared, in overheated language, to the murder itself. (“The veil of civility that must protect us in society has twice been torn here,” she wrote.) In a speech, Jones once argued that anyone who can plan a crime is by definition not mentally retarded. Fortunately, the United States Supreme Court did not share her opinion, and Bell’s sentence was eventually commuted to life after he was officially found to be mentally retarded.

Like Judge Brister, Judge Jones believes in expediency. In December of 1998, federal judge Sam Sparks of Austin issued stays of execution to two inmates with imminent execution dates, Danny Lee Barber and Stanley Faulder, after they challenged the constitutionality of the state’s clemency procedure. The state appealed both stays to the Fifth Circuit, where a different three-judge panel was assigned to each inmate. Barber’s panel upheld the stay, but Faulder’s panel, led by Edith Jones, did not. As Barber’s attorney, University of Houston law professor David Dow, recalls in his book Machinery of Death, “Both inmates had raised the identical legal claim; indeed, the exact same pleadings were used by both sets of lawyers—all that differed was the name of the party seeking relief.” Faulder’s panel added a footnote to its order, Dow continued, “acknowledging that it was aware that a different group of judges had, on the previous day, halted an execution on the same grounds.” By long-standing tradition, circuit court panels are supposed to respect and adhere to rulings made by one another, unless and until the entire court meets to overturn a ruling. Yet Faulder’s panel gave no explanation for why it was refusing to follow suit. The author of that footnote? Edith Jones. (The U.S. Supreme Court granted Faulder a stay shortly thereafter.)

In recent years, Jones (who is now the chief judge on the Fifth Circuit) has hit the conservative lecture circuit, where she has criticized the Supreme Court for decisions in a host of areas, from rulings on family law to pornography. She has gone on the record enough times to ensure some tough sledding if she ever got in front of the Senate Judiciary Committee as a candidate for the highest court in the land. But the word around Houston is that Jones, despite her high profile, has not been a serious candidate for the Supreme Court for a long time. It wasn’t the sleeping lawyer case that did her in, observers say, it was her performance in a case involving a sexual harassment claim. After hearing testimony that a woman had endured, among other things, a co-worker pinching her breast at work, Jones retorted, “Well, he apologized.” Nominating a woman to the nation’s highest court loses some of its luster when the candidate in question is widely considered to be hostile to women in general.

Fidencio Guerra, Jr.

Edinburg, Visiting State District Judge

In 1992, Texas Lawyer reported that there was a new district judge in Edinburg named Fidencio Guerra, Jr. who spoke to attorneys during trial through sock puppets. Puppets are cute when Mr. Rogers uses them, but Judge Guerra is no Mr. Rogers. In a 1991 case described by Texas Lawyer, Guerra heard an application from a woman seeking a restraining order against her husband, who had a history of abusing her. After listening to her harrowing tale, Guerra ordered the abusive husband to hold his wife’s hand and get down on his knees and apologize to her. Then he denied the woman’s request, the magazine reported, saying, “If he hits her again, well, she can always file assault charges, and if he hits her hard enough, she can file aggravated assault. And if he kills her, you can put him away for murder.” Guerra told Texas Lawyer that a local women’s shelter was pressuring women to apply for protective orders, in what he called an “abuse of the system.” In another case, he granted a protective order, but only after taking a poll of everyone present in his crowded courtroom (the majority of whom were present for unrelated cases) and following the result of the vote.

It seemed that almost everybody— from the district attorney, to fellow judges, to women’s advocates—wanted Guerra gone, and the judge failed to win a second term in office. So why, 14 years later, is he still on the bench? Shortly after the voters threw him out, Guerra, who is the son of one of the Valley’s most respected judges, was appointed to a special auxiliary court that handles primarily drug felonies. Such judgeships are common in the Valley, where drug prosecutions clog the docket, and are typically filled not by popular election, but by a board of local judges.

Once back in his black robe, Guerra was up to his old tricks. In 1997, his court coordinator accused him of sexual harassment. The complaint was upheld by the Equal Employment Opportunity Commission, but Guerra won a summary judgment in a subsequent lawsuit by his accuser, who is now a local justice of the peace.

In court, Guerra is known for making lewd or off-color comments to defendants and witnesses. “He’s just an obnoxious human being,” said one longtime court observer. Last fall, a young probationer named Enrique Vargas appeared before the judge. Noting that Vargas’ wife had come to court with him, Judge Guerra asked the man to tell the court what his wife called him in bed, according to a witness. Judge Guerra told the Observer that he recalled the incident, but that the question was merely part of an effort to determine what conditions to put on Vargas’ probation. “I don’t humiliate anybody,” he said.

Last December, after what he considered to be a particularly capricious ruling, District Attorney Rene Guerra (no relation) unsuccessfully sought to have Judge Guerra removed from all of his cases. “The losing side is never going to be happy if they feel the rulings are unfair,” the District Attorney said.

After a decade of impunity, it seems that Judge Guerra will finally have to face the voters once again. In January he put his name in the ring for an elected county court at law seat. The local board of judges made him step down from his auxiliary court assignment when he declared his candidacy, so Guerra is—for now at least—off the bench. A seat on a county court is a step down from a district judgeship, but Guerra, who is now 58, has complained that he was not receiving benefits or vacation in his appointed position. Depending on what the voters decide, he may end up with a longer vacation than he had originally anticipated.

Former Observer editor Nate Blakeslee is the author of Tulia: Race, Cocaine and Corruption in a Small Texas Town (PublicAffairs).

Dishonorable Mention

Ed Self

Tulia, District Judge

Ed Self, a Republican, presided over the majority of the trials in the infamous Tulia drug sting of 1999. It took over three years and millions of dollars worth of legal work to overturn those convictions and expose Tom Coleman, the narc in the case, as a liar. Self could have stopped the whole charade in the winter of 2000, when he witnessed Coleman lying on the stand in one of the early trials. Instead, Self’s questionable rulings at trial helped the prosecution hold the sting together as the truth about Coleman threatened to surface time and again. In the aftermath, Coleman was convicted of perjury, and the district attorney was sanctioned by the state bar, but Self is still on the bench, unscathed by the whole affair.

Oscar Tullos

Brownsville, Justice of the Peace

Judge Tullos, a Democrat, holds the record for the most public sanctions by a Texas judge over the last five years, which is pretty impressive when you consider that the State Commission on Judicial Conduct monitors over 3,500 judges from municipal courts all the way up to the Texas Supreme Court. Tullos, who once threw a woman and her seven-year-old child into a holding cell to make a point about truancy laws, has been ordered to complete “additional education”—the judicial equivalent of detention hall—several times, but it never seems to take.

Tim Wright & Suzanne Brooks

Williamson County, County Courts at Law

The law says that anyone facing jail time is entitled to a court-appointed attorney if they cannot afford to hire one of their own. This includes misdemeanor offenses, the most serious of which can land a person in jail for up to a year. According to data gathered by the Texas Criminal Justice Coalition, Williamson County, just north of Austin, reported providing attorneys in only about seven percent of misdemeanor cases, the lowest rate in the state for counties with more than 5,000 misdemeanor cases per year. (The statewide average was 30 percent.) After months of court observation, Dominic Gonzales of TCJC believes he has solved this riddle: He says misdemeanor defendants in the Williamson County courts presided over by Judge Wright and Judge Brooks, both Republicans, are systematically discouraged from seeking counsel, from the moment they step into the courtroom until they appear before the judge. Gonzales observed Judge Brooks on more than one occasion simply denying defendants straight out, without making an effort to determine their indigent status. “If they’re standing on two legs,” Gonzales said, “she’ll tell them, ‘We’ll set you for trial in three weeks, and you can go find a job between now and then.’”

Betty Brock Bell

Houston, Justice of the Peace

After 20 years on the bench, Judge Bell, a Democrat, was suspended last March for illegally obtaining a handicap parking permit by using her dead mother’s name. Even before her indictment, she had a 77.4 percent “poor” rating in the 2003 Houston Bar Association Poll, making her the lowest rated judge in Houston that year, by a wide margin.

*Letter on behalf of Sally Montgomery

Nate Blakeslee had a chance to get his facts straight when it came to reporting Judge Sally Montgomery’s reversal statistics, but he consciously chose not to do so. ["The Worst Judges in Texas," February 10, 2006] It is apparent now that he did not want to consider the appropriate information, lest it dilute the dramatic position he wanted to take with regard to Judge Montgomery.

Mr. Blakeslee claimed Judge Montgomery’s reversal rate is much higher than the average reversal rate for judges appealed to the Dallas Court of Appeals (which Mr. Blakeslee estimated at one reversal for every three cases appealed). In fact, Judge Montgomery’s reversal rate is less than the average. I am the person who compiled the affirmance and reversal statistics for Judge Montgomery’s tenure on the County Court at Law, so Mr. Blakeslee’s inquiries about Judge Montgomery’s reversal rate were referred to me.

Mr. Blakeslee gave Judge Montgo-mery just a few hours to respond to his claims about the reversal information that he found on Westlaw. I was unavailable by phone that day, however, I made it a point to call him that night to discuss the information he was focused on and the conclusions he was drawing from it, especially with regard to his claim that Judge Montgomery’s website was misrepresenting her record. I pointed out to Mr. Blakeslee that Westlaw was not the source of the statistics used for the website, and that it cannot be used as an accurate source of any judge’s reversal rates because it is so incomplete. Not every disposition on the merits gets published by Westlaw, and some decisions that are published by them are not dispositions on the merits.

For example, I told Mr. Blakeslee that one of the cases he was counting as a reversal was actually a dismissal for lack of jurisdiction, something that has nothing to do with the trial court judge’s decision. Rather than revise his rate calculation, he noted in the article that Judge Montgomery’s judgment in that case was “vacated,” with an insinuation that such action by the court of appeals is a comment on the judgment’s correctness. It is not.

It was clear from talking with him that Mr. Blakeslee had seen only about half of the cases I had seen when I searched the 5th District (Dallas) Court of Appeals’ website. I told him how to go to the Court’s website and look up complete information on all cases decided by any particular judge that were appealed to the court of appeals. Had he done so, he would have discovered that there were 15 of Judge Montgomery’s cases decided on the merits by the Dallas Court of Appeals (he said only eight in the article) and that only four of those 15 were outright reversals (two of which occurred after we compiled our statistics for the campaign website). Ten were outright affirmances.

One case, USAA v. Croft, was affirmed in part and reversed in part. The part that was affirmed was Judge Montgomery’s decision, and the part that was reversed was the jury’s decision on a liability question. I’m no math whiz, but four reversals in 15 cases does not compute to a reversal rate of 53 percent, as claimed by Mr. Blakeslee. Instead, it is a reversal rate below the average of one in three.

Mr. Blakeslee did not want to include any point of reference for his readers either. He said he thought the Montgomery campaign’s website statistic about how many cases Judge Montgomery cleared as compared to how many were reversed was a meaningless statistic. As a taxpayer, I think it’s rather more important to know that a judge who has disposed of almost 10,000 cases since she took the bench in 2003 has had only four of them reversed rather than what percentage of the small number appealed were actually reversed. It looks to me as if she’s doing her job well by moving cases through the system.

Mr. Blakeslee has a right to take whatever viewpoint on judges that he desires, but it is irresponsible, misleading, and downright smelly for him to claim that he has based his opinion on objective information such as reversal statistics when he knew how to get the full reversal statistics and deliberately chose to omit those that disproved his thesis.

I had expected better of The Texas Observer. You should have an independent fact checker examine all the facts before you print. At the very least, I expect you to correct your errors now.

Julia F. Pendery Attorney at Law Dallas

The Observer responds: After receiving Ms. Pendery’s letter, we searched the website of the Fifth Court of Appeals, and it is apparent that some of Judge Montgomery’s cases were in fact not recorded on Westlaw. For this reason, using the Fifth Court of Appeals website is a more accurate method, and would have been preferable in reporting our story. Using this website, we calculate seven reversals in 16, or 44 percent, as opposed to the 53 percent originally reported using the Westlaw database. Ms. Pendery does not include partial reversals or modifications, while the Observer believes it is proper to include such cases.