I am a divorce lawyer now, but once I was a young father battling for custody of my two children. I still can feel the worry and dread such a court case creates. It seems to the parents that everything important to them in the universe is at stake. Parents in such situations feel helpless because so much rides on the lawyers and the judge and jury. No matter who “wins” or loses in a child custody case, both parents should at least leave the courthouse feeling they were treated fairly and that neither side had some sort of inside connection or political advantage. Lawyers and judges who allow it to appear that political clout is influencing a case are damaging the integrity and stability of the justice system we all work and believe in. I have spent many hours on this story and I have tried to be as accurate and fair as possible. I will publish any responses from those involved if they feel their side of the story needs to be told differently than what I have written. Greg Enos
The lives and futures of two very young children are being decided in Cause no. 2012-59856, a child custody modification case pending since June 2014 in Harris County. Over a million dollars have been spent on or billed by lawyers in this case. The court appointed psychologist and the amicus attorney appointed by the court to represent the children had strongly recommended that the father have custody of the children. For a while, the mother had been given only supervised visitation with the children, in part because of concerns about unfounded abuse allegations the mother had repeatedly made against the father and his family.
In March 2017, a jury quickly decided that the father should have custody of the children. Then, the mother fired her very good (and expensive) lawyer, Robert Hoffman, and hired two attorneys known more for their political connections than their courtroom skills, Gary Polland and Jared Woodfill. Those lawyers then attacked the rulings of the judge and associate judge who heard the case and Judge John Schmude recused himself from the case. This happened as Mr. Polland was openly saying he was going to promote a primary election opponent for Judge Schmude. The matter was transferred to another judge who granted the mother’s motion for new trial. The new judge in the case, Alicia Franklin-York, is a Republican. Her husband, Doug York, is well known in local Republican politics because of the endorsements of a police group he leads. York’s organization, Police Inc., is one of the second tier of “slate mailers” who send postcards to reliable Republican voters telling them who to vote for in judicial races. Doug York often works closely with and coordinates his political effort with the “big 3″ Republican slate mailers in Harris County, two of whom play major roles in this story.
The mother was represented in the new trial hearing by Jared Woodfill and Gary Polland, who are both former party chairs of the Harris County Republican party. Gary Polland is one of the three big “slate mailers” who influence Republican primary voters with mailers that are funded by payments from the candidates to Polland. To an extent much greater than the police group run by the judge’s husband, Gary Polland’s Conservative Review is universally seen as highly important in Harris County Republican primaries.
The father was represented by attorney Bobby Newman, perhaps the best known and successful divorce lawyer in Houston. Newman is just an attorney who is extremely good at what he does. Newman makes big political contributions, but his forte is ferociously representing wealthy people. Ironically, for once in his career, Newman was probably the least politically connected attorney in the courtroom that day. Newman and I seldom see eye to eye, but this is one situation where I really feel for the guy, even if he will not return my calls about this case.
At the hearing on the motion for new trial before Judge Franklin-York, two spectators sat on the front row of the audience section in the courtroom: Steven Hotze and Edd Hendee. Hotze is yet another extremely influential Republican who is perhaps the most important “slate mailer” in Harris County. Hotze’s crusade against homosexuals and transgender people has had huge impact on the legislature in Austin and the recent ballot battle over who gets to use women’s restrooms in Houston. Hotze’s Conservative Republicans of Harris County takes in money from Republican candidates, pools it and then pays for sophisticated mass mail campaigns to GOP primary voters. No Republican in Harris County every wants to get cross-wise with Dr. Hotze. Hotze and Jared Woodfill together operate Conservative Republicans of Texas News, a website aimed at Republicans state-wide.
Edd Hendee, who sat next to Hotze in the courtroom that day, is a wealthy restaurant owner who is also prominent in Republican circles. Hendee was once a conservative radio talk show host and he is still a major GOP campaign contributor. So, Hotze and Hendee sat side by side on the front row, eyeballing the judge. Judge Franklin-York obviously knew exactly who they were and could clearly see them watching her. Franklin-York faces reelection next year. Everyone knows that a judicial candidate simply cannot win a Republican primary in Harris County without the support of at least two of the three big slate mailers: Hotze, Polland and Terry Lowry. Two of those three were in the 311th District Court that day.
Edd Hendee knew the mother in this child custody case from Second Baptist Church. Hendee had provided hundreds of thousands of dollars to the mother to pay her attorneys in this case. Hendee testified in the custody trial that he had provided $435,000 to the mother’s attorney, Robert Hoffman. Dr. Hotze is a long time family friend of the parents of the mother fighting to keep custody of her children. So, it could be argued that both Hendee and Hotze had valid reasons to be in court that day. I have represented hundreds of clients, all of whom had family friends, and I do not recall “family friends” ever showing up in court just to watch a hearing of this nature. Of course, my clients almost never have friends with such political connections. Sadly, my clients also never seem to have a wealthy “family friend” who is able and motivated to provide hundreds of thousands of dollars to pay legal fees.
Before the hearing on the mother’s motion for new trial could begin, Woodfill, Hendee and the mother’s legal team huddled over the bar separating the lawyers from the audience, joined hands and prayed in court that God Almighty would take a moment from the many perils facing humanity around the globe and help the judge see that a new trial was in order. It appears someone in authority was listening to their prayers.
When Judge Franklin-York took the bench that day, she was being asked to grant a new trial even though she had not been involved in the first trial. It is extremely unusual for a judge to consider a motion for new trial when that judge did not preside over the jury trial. Judge John Schmude had heard the custody trial. Schmude’s associate judge, Paula Vlahakos, had granted temporary orders which switched custody of the children to the father and gave the mother only supervised visitation. During the litigation, Judge Schmude eventually ended the supervised visitation but left primary custody temporarily with the father. The court appointed psychologist and amicus attorney had both recommended an even stricter form of supervised visitation for the mother, but instead Judge Schmude ended the supervision all together.
At the start of the jury trial, Judge Schmude granted a motion in limine which forbade the lawyers and witnesses from discussing the religious beliefs of the parents. The mother attends Second Baptist Church. The father’s family is Muslim but the father is not devout and is basically not religious. Schmude’s ruling to follow the Constitution and not allow religion into the case and the jury’s decision to award custody to the father infuriated Gary Polland in particular (he did not start representing the mother until after the jury verdict). Polland began to tell people that he was going to find a primary opponent for Schmude. At the first court appearance after Woodfill and Polland took over the case, Judge Schmude informed all of the attorneys in his chambers that he had a conversation with Gary Polland about the case, although at the time of the talk, Polland was not yet formally involved in the case. All the lawyers agreed this was not a problem and no one objected to Schmude because of that conversation. I can only hope and presume that Polland did not know he was being hired by the mother at the time he spoke to Judge Schmude about the mother’s case. It is well known that Polland was openly telling people he was going to find a primary opponent for Judge Schmude, a message that surely was not lost on Schmude and was certainly heard by the other family court judges, all of whom face reelection next year (except for the one Democrat elected last year).
However, the mother’s legal team soon found another reason to attack Judge Schmude on legal grounds (even as Polland was going around telling people he would bring Schmude down politically). It turns out that Schmude’s associate judge, Paula Vlahakos, had worked for a law firm which represented the mother in the original divorce for three months in 2012. Vlahakos worked at the law firm during those three months but she never worked on the mother’s divorce. Schmude appointed Vlahakos to be his associate judge in January 2015. The mother and her lawyer did not object to Vlahakos when she presided over the hearing on temporary orders or later hearings. The mother’s motion for new trial argued that Vlahakos was disqualified under the Texas Constitution and therefore Judge Schmude was also disqualified. Schmude read the motion for new trial and referred the motion to the regional administrative judge, who assigned retired Judge Doug Warne to consider the request to disqualify Schmude. Warne heard the evidence and considered the case of McElwee v. McElwee, 918 S.W.2d 182 (Tex. App. – Houston [1st Dist.] 1995, pet. denied). In McElwee, the associate judge was disqualified because he had practiced law with his father who was an attorney in the case. However, the Houston First Court of Appeals ruled in McElwee that the disqualification of the associate judge did not disqualify the elected presiding judge. Judge Warne ruled that Judge Schmude was not disqualified.
Once the matter was back before Judge Schmude, though, he shocked everyone and recused himself. Schmude is not about to tell me why he took himself off the case after his disqualification was denied. It was widely known that Gary Polland was going around saying he would get a primary opponent for Schmude and now Polland was an attorney of record for the mother in the case. Schmude had to admit that he had discussed the case with Polland before Polland officially became an attorney of record. It was clear that Schmude’s associate judge should not have heard the case (even though the mother and her lawyers never objected and the associate judge had no idea of the conflict until the motion for new trial was filed).
I am told by several sources that political pressure was even put on Schmude to fire his associate judge even though she obviously had done nothing wrong (other than take custody away from the mother in temporary orders based on very strong evidence). Judge Schmude would not comment for this story and he will not confirm or deny that he resisted political pressure to fire Vlahakos. Schmude has told me in the past that he would rather do the right thing and lose his job than ever compromise his ethics and I believe him.
Schmude’s order of recusal says:
The Court is impartial in this matter and does not harbor any personal bias or prejudice against the parties or their respective counsel. Moreover, the Court does not harbor any bias or prejudice regarding the laws applicable to this case on which the parties will rely. Furthermore, the court is able to base its decisions upon the facts developed at trial and to render a fair judgment in this case. Although the court is qualified to participate in this case, it finds that the appearance of propriety will be better served if the Court sua sponte recuses itself.
It is possible that Schmude was aware of the political threats from Polland and decided he could not rule one way or the other without having his fairness questioned. No matter why Schmude took himself off the case, Polland and Woodfill were surely pleased because no judge who had heard the evidence at trial of the mother’s conduct would ever be likely to grant a new trial and erase the jury’s verdict. If the new trial was not granted, the mother could appeal but that would take years and leave the children with the father until the appeal was resolved. Everything for the mother hinged on getting some judge to overturn the jury verdict and grant a new trial.
The hearing on the motion for new trial was held on May 2, 2017 before Judge Franklin-York, who had been randomly assigned the case when Schmude recused himself. Woodfill and Polland were joined at the counsel table by a former Republican Texas Supreme Court Justice, Dale Wainwright. I am told that the mother has spent over $300,000 on Polland, Woodfill and Wainwright since the jury verdict in March 2017.
Newman was present with his associate lawyer and an appellate attorney. Hotze and Hendee sat watching from the front row of the audience section. The lawyers argued for and against a new trial. On May 3, 2017, Judge Franklin-York ruled that a new trial would be granted. For once, Newman was absolutely flabbergasted and dismayed by a loss in court. Newman and his legal team were sure that Schmude’s rulings and the jury verdict would have been upheld on appeal. I can only imagine how devastated the father was at Franklin-York’s ruling.
Judge Franklin-York gave three reasons why she granted a new trial. I am going to briefly analyze her reasons only because it is necessary to determine whether Franklin-York was likely swayed by politics. If the reasons she gave for the new trial are bogus, we can conclude that political considerations influenced her. If we can find genuine legal reasons to set aside the jury’s verdict, then it is less likely that Hotze and Hendee on the front row moved her.
The first reason why Franklin-York tossed the jury verdict was because Judge Schmude excluded evidence regarding religion and ethnicity by granting a motion in limine that kept the lawyers or witnesses from telling the jury that the father was Muslim or from Iran. This is NOT a reason to grant a new trial, but it surely pleased the judge’s friends at Second Baptist Church. Case after case in Texas have held that it is incurable error to inject a parent’s religion into a child custody case. For example, in the case of In re Knighton, 685 S.W.2d 719, 721 (Tex. App. – Amarillo 1984, no writ) a child custody verdict was reversed because the judge allowed evidence of the parents’ religious differences. The Court of Appeals said, “The State cannot prefer the religious views of one parent over the other in deciding the best interests of the child.” Schmude granted the motion in limine but the mother’s attorneys never approached the bench and tried to get that sort of evidence in. Lesson to all lawyers: to preserve error when a motion for limine is granted, you have to try during the trial to get the evidence in and, if it is still excluded, make an offer of proof. It is actually disgusting to think that a judge would set aside the Constitution and let lawyers play on prejudice against a religion or ethnicity to decide which parent should have custody. The fact that the mother’s lawyers would even want to rely on anti-Islam and anti-Iranian bias shows how desperate they are to avoid the sad facts of the mother’s behavior. This specific ground given by Judge Franklin-York for granting a new trial makes me question her judicial intelligence and should cause anyone to believe politics did influence her decision
The two other reasons why Franklin-York said she granted the motion for new trial both related to the conclusion that Judge Vlahakos was disqualified and therefore the temporary orders she made were void and it was error to admit the temporary orders into evidence or to make jury arguments based on those temporary orders. The associate judge was in fact disqualified under the Texas Constitution, Art. V, Sec. 11, which forbids a judge who has represented a party in the same matter from hearing the case. The Texas Supreme Court has held this rule applies to a judge hearing a custody modification case if the judge as lawyer represented a parent in the original divorce. In re O’Connor, 92 S.W.3d 446 (Tex. 2002). This constitutional grounds for disqualification can be raised at any time. It does not matter that the mother never objected to Vlahakos or that Vlahakos did not even know of the conflict. Judge Franklin-York ruled that it was error to admit the temporary orders into evidence. Ordinarily, the general rule is that any mention of the temporary orders is excluded in a jury trial. However, in this case, the mother’s lawyers agreed to admit the temporary orders into evidence.
This agreed admission of the temporary orders would seem to mean there could be no error from the associate judge being disqualified when she ruled on temporary orders. But, if constitutional disqualification can not be waived, it is arguable that this was in fact error. The transcripts of the jury argument in the trial made by Newman and the amicus attorney, Bruce Steffler, show that the associate judge’s rulings in the temporary orders were part of their final arguments. The mother’s brief asserts that Hoffman did not know that Vlahakos was disqualified when he agreed to the admission of the temporary orders after inadvertently “opening the door” to the admission by arguing the temporary orders allowed the mother to go to the children’s school.
This is the legal grounds where I think Franklin-York was arguably correct in granting the motion for new trial, even though there is no clear appellate cases on the subject and Newman made a strong argument for his position. If the associate judge was disqualified, she should not have issued temporary orders and if those temporary orders were void, they should not have been introduced as evidence or relied on in argument to the jury. If Mr Hoffman did not know the orders were void, he could not waive the error and in fact cases say constitutional disqualification cannot be waived. The shame is, of course, that the mother would almost certainly have still lost the trial because of her conduct even without the admission of the temporary orders.
Again, I really doubt any judge who had heard the evidence presented in the jury trial would have granted a new trial because everything was so strongly against the mother even without mention of the temporary orders. Judge Franklin-York did not have the full transcript of the jury trial when she granted the new trial. She only had the motions and briefs and short excerpts of jury arguments before her when she ruled.
So, in summary, I conclude that Judge Franklin-York pandered to the “Christians” in the courtroom when she ruled that a jury can be told the father is Muslim and Iranian and she is totally wrong about that. But, there was some arguable basis to grant the new trial based on the fact the associate judge was disqualified and the temporary orders she made should not have been admitted and used to tell the jury a wise judge had already ruled on the custody issue. The granting of a new trial can be challenged via mandamus and I predict the father in this case will do so. There is a fair chance the court of appeals will look at this very unusual situation and overturn Judge Franklin-York, but no prior case in the history of Texas provides much guidance for deciding this weird situation.
If I had been the judge in Franklin-York’s place, I probably would have reluctantly granted the motion for new trial. But, before conducting the hearing, I would have called the lawyers back to my chambers and raised hell about trying to influence me by placing politicos on the front row. I would have suggested the lawyers ask everyone in the courtroom to go home and then proceeded to hear argument and make my ruling partially as Franklin-York did. I would never rule that the Constitution’s grant of freedom of religion could be ignored by a mother’s desire to play to a jury’s prejudice against Islam or Iran. I would also not let a lawyer question the mother’s Christian faith, because she too has her right to her religious views. Unless a parent’s religion is shown to be harmful to the child, the parents’ religious beliefs or lack of beliefs should never be allowed into evidence. That very clearly has always been the law in Texas.
It is interesting that Franklin-York retreated to her chambers to conduct a hearing when I showed up to watch (even though her courtroom was empty) but she did not do that when Hotze was present. Had I been the judge, I certainly would not have set aside the First Amendment to the Constitution. But, in the end, I would probably have granted the new trial with supreme reluctance and regret. It is impossible to know what was in Franklin-York’s heart and mind when she ruled, and we should give her the benefit of the doubt.
It is a shame that the entire process was tainted by politics. Hiring Polland and Woodfill for their political connections and bringing Hotze to court made it look like politics triumphed. The judge cannot control which lawyers the mother hires or who the mother or her attorneys ask to attend court. We all should be mindful of appearances and what position we put judges in. I just know that no lawyer in their right mind would have tried the same tactic with Judge Farr or Judge Moore (or Maldonado).
It is widely believed that rich people are hiring Jared Woodfill for their family law cases because of his political connections. This case will just increase his reputation as a “political fixer.” Jared Woodfill, who remains friendly to me despite our differences of opinion on almost every social issue facing mankind, told me:
I represent regular folks who need help in their time of need. I am proud of the clients I have the honor to represent; a group that includes people with different work backgrounds and life experiences, including teachers, engineers, doctors, small business owners and many more. It is an insult to our good judges to suggest that any of them rule based on political considerations. If anything, many judges bend over backwards to avoid the appearance of any favoritism, even to lawyers with strong political beliefs like me.
Now, the next big event in this custody case is probably a petition for writ of mandamus against Franklin-York to reverse the grant of the new trial and then, if no mandamus is issued, eventually a hearing on temporary orders to decide whether the two young children stay with the or whether they return to the mother. The mandamus action will be decided by the First or Fourteenth Courts of Appeal in Houston, which are made up of all Republican justices who will need the support of Hotze and Polland to win reelection. That is just a sad fact of life. Franklin-York is up for reelection next year and I am guessing she will be endorsed by Hotze and Polland.
While my opinion does not count for much, I think this case should be heard by a good, retired judge who does not need to worry about reelection or endorsements. If Judge Schmude can recuse himself because he cares about the appearance of fairness, so can Franklin-York (without admitting at all that she has done anything wrong). The parents in this case deserve at the end of the day to know a fair, impartial judge heard their case and that politics played no role in the judge’s rulings.
Regardless, when there is another hearing in this custody case, I wonder who will be in the front row watching the action the next time after everyone reads this story. I know I plan to be there.
Almost all of the pleadings filed by Woodfill and Polland do not say “Contains sensitive data” at the top as required by Rule 21c since the pleadings contain the children’s full names. Moreover, children’s medical records and all kinds of confidential information about the parents are attached as exhibits to various pleadings and the public can see them all. The judge should order that the lawyers review every pleading and filing to determine if there should be redaction or if the document should not be viewable by the public.
By way of full disclosure, I have previously made a criminal complaint (by writing the District Attorney) against Judge Franklin for work she did before becoming a judge, when as a lawyer on CPS cases, she billed the county 32.25 hours in one day (she apparently learned the art of billing in CPS cases from none other than Gary Polland, who also billed the county more than 24 hours in a single day). Nothing came of my complaints against Polland or Franklin under the administration of Republican District Attorney Devon Anderson.
Click this link to read one of my 2014 stories about the CPS billing by Alicia Franklin when she was a lawyer that was part of a scandal involving politically connected lawyers and what they billed the county for court appointments.
Click this link to read one of several stories about how Gary Polland got rich off CPS appointments from Republican judges and somehow billed more than is humanly possible for one person in one day.
The CPS billing scandal I uncovered in 2014 lead to the Legislature in 2015 completely changing how attorneys are appointed by judges in cases where they are paid by the county. This little newsletter has made a difference on a few occasions in the past.
Alicia Franklin was appointed to be the judge of the 311th District Court only because Judge Denise Pratt resigned instead of facing criminal charges because of my investigation published in this newsletter. I finally found the eyewitnesses to backdating of court documents and got them to the D.A. and that is why Pratt resigned and Franklin was then appointed. Several other lawyers bravely took on Pratt as well, but the publicity and evidence generated by this newsletter had a lot to do with Pratt resigning.
I am very proud of the many excellent REPUBLICAN family judges we have in Harris County, but I am willing to stand up against the rotten few who give all of us a bad name, even though I make my living as an attorney in those very courts.
For obvious reasons, I did not represent clients for a while in the 311th once Alicia Franklin became judge. She was married to Doug York after she became judge. This year I began to work before Judge Franklin-York (after making full disclosure to my clients). In court, Judge Franklin-York was totally professional and fair with me. As I watched her handle other cases, I was impressed by how efficient, courteous, concerned, reasonable and fair Judge Franklin-York was. I was planning to write something really complimentary about Judge Franklin-York and then I heard about this shocking case. Now, I presume I am back out of the 311th for a few more years.
As an added bonus, I am providing the following photo of these influential Republicans, Dr. Hotze and Edd Hendee (who play major roles in the unfortunate tale I am sharing with you). I suggest that you print this photo out in color, fold it over and then place this powerful talisman on the counsel table in certain courts. It is said by a few cynics that the mere presence of these two men staring at the judge greatly increases the chances of courtroom success. I prefer to believe judges are honest. I also believe in science and not superstition, so please report back to me whether this works and I will analyze the data to determine if big shot Republicans in the courtroom really do effect the outcome of hearings or trials. Of course, to be scientific, I will need to control for variables, such as the presence of former party chairs as counsel and the religious beliefs of the parties. I plan to write more about this case, so stay tuned for the results of my research.
Please note that both Mr. Hendee and Dr. Hotze are friends of the family of the mother in this case I am writing about and Mr. Hendee has provided over $435,000 to bankroll the mother’s legal team. There could be totally benign reasons why Hotze and Hendee sat on the front row in the courtroom when Judge Franklin-York had to decide whether to throw out a jury verdict for the father and grant a new trial. Keeping track of one’s investments or showing support for a family friend’s daughter in court are often what brings busy, political heavy weights to court to just watch and stare at the judge. I am sure Jared Woodfill and Gary Polland begged Hotze and Hendee not to be in court that day because of how unseemly and improper it would appear. I assume Jared and Gary told Hotze and Hendee that their presence would not sway the judge one tiny bit. I did e-mail Mr. Hendee to get his side of this story, but so far he has not replied to my request. I am 100% sure that Judge Alicia Franklin-York will say that her ruling had absolutely nothing to do with the presence of all these important Republicans in her court all on the side of the mother who happened to win big that day in her court.
I have spent a lot of time on this story and I have tried my best to be fair and accurate. I invite those involved in this story to e-mail me with corrections and their side of the story. Within reason, I will publish any rebuttal sent to me so that all sides of this story can be heard.