Ask the Judge: Q&A

Do you ever feel like you “read” people before you pass sentence and it can affect the severity of the punishment?

Part of the job as a judge is to read people. It is no different than what a jury does. If a case is tried to the bench (no jury), the Judge has to read every witness to determine if that person is telling the truth. If a Defendant testifies, we have to read everything about him/her to determine if he/she is guilty or not and if so, would he/she be a good candidate for probation or if a prison sentence would be more appropriate.   

Do you think some laws are unfair? How do you handle that on the bench?

Yes, some laws aren’t fair. I was required to grant a mortgage company the right to foreclose the house of an elderly lady who had gone through cancer and unable to keep up with the payments. I had to explain to her the reason I was required to do so even though I didn’t like it. She was very nice and said she understood. She also said she would rather have cancer again than deal with the mortgage company that was foreclosing on her.  When elected as a judge, I took an oath to follow the law. The oath doesn’t allow me to ignore the law judge because I don’t like it or don’t think it is fair.

How do you decide a sentence that is shorter or longer than standard ranges?

Most sentences are determined by the jury after a trial or by agreement between the prosecutor and the defendant and his/her attorney. Occasionally, someone will go to the Court for sentencing without an agreement. When that happens, the full range of punishment is available to the Court. There really isn’t a “standard range”.  As a judge, we look to the community to see what juries do in cases when determining sentences after a jury trial.  That really determines the standard in the community.  All we can do when making that decision is to listen to the evidence and arguments from both the prosecutor and the defense attorney and what we believe is appropriate under that specific set of facts and for that specific individual on trial.

What do you think is the biggest obstacle to getting justice?

Criminals. That is the short version. The long answer goes to the age-old question of whether a sentence is for punishment or rehabilitation. There will never be a consensus on that answer. There are some crimes that just require prison sentence and there are others that require probation with the hope of rehabilitation. Sometimes individuals don’t want to be rehabilitated and will continue to commit crimes no matter how may opportunities they may have been given on probation. Others have drug addictions that cannot be conquered even when going through programs that are available while on probation and so they continue to commit crimes to satisfy the addiction. I had a law professor once who said that prison is never a deterrence because when most individuals are committing a crime, they don’t think they will get caught and therefore, never think of the consequences. I don’t agree with this. With all the forensic evidence that can now be collected by law enforcement, it is very difficult to get away with a heinous crime.

Have you ever made a mistake on the bench? Are there any do-over options?

Everyone makes mistakes. As judges, we rule on objections to evidence in every trial and have to do so within seconds. It is virtually impossible to get everything correct.  Usually the small issues aren’t going to make a difference in a lengthy trial.  If a mistake is made that is critical to the outcome of a trial, it can be remedied by a motion for new trial that can be granted by the Judge if the attorney can show that an error was made and it was a cause of an incorrect outcome.

What happens if you preside over a case and you realize the lawyer just doesn’t know what he or she is doing?

This happens more often than you might think. If the case is civil, there really isn’t much you can do.  Each party has a right to hire the attorney of his/her choice. In a criminal case, we can appoint another attorney with more experience to help with the case.  The reason for this is that we have to make sure that a Criminal Defendant gets a fair trial and adequate representation. If not, the case can be reversed by the appellate court and will have to be retried for “ineffective assistance of counsel”. This is true even if the attorney is the attorney of choice hired by a Defendant.

Judge Rick Kennon has presided in the 368th District Court since 2013. Send questions to info@fpgtx.com

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