During the show, they discuss how criminal courts are managing the coronavirus pandemic to ensure that the wheels of justice continue moving forward. Brian and Jesse also discuss over-policing, the failures of the so-called War on Drugs, “cancel culture,” and free speech expression in the United States.
Watch this episode on YouTube
Brian and Jesse discuss:
- The obstacles the coronavirus has created for jury trials in high-profile criminal cases
- Jesse’s path to becoming a judge and the advice he has for children and young lawyers who want to become a judge
- The transition from prosecutor to judge
- The flawed notion of equality and the loss of faith in America’s institutions
- The War on Drugs
- The “broken windows theory of policing” and civil forfeiture
- Cancel culture and free expression
- How the fragmentation of media impacts tribalism in America
- Whether social media companies should be defined as private entities or public utilities
- And other topics
Read the show notes!
Brian Beckcom: Welcome to the Lessons from Leaders Podcast. I'm your host, Brian Beckcom. My next guest is Judge Jesse McClure. Jesse has worked as a prosecutor, including a special prosecutor. He's worked as an attorney for the Department of Homeland Security. And he is currently a sitting criminal judge in Harris County.
I have been looking for a while now for somebody to give a perspective from the law enforcement side of things on the current state of affairs, including the protests, police violence, the drug war, what we can do about it, things of that nature. And Jesse is the perfect guest.
Judge McClure is one of the best people I've ever met. I met Judge McClure first in law school at the University of Texas, and I've known him for over 20 years now. He is the only Republican judge in Harris County right now that I know of, and he has a lot of thoughts on what the judges are doing right now in terms of the criminal justice system, how we're making sure to keep our communities safe from violent criminals, race relations, cancel culture, Judge McClure’s experience being in an interracial marriage, and a lot more things.
Most of the people that I know who know Judge McClure think he is one of the best people they've ever met. He is truly a good person. He is a hardworking prosecutor and judge, and he has a lot of great thoughts on the current situation, what we can do to get through it together, and what the future may hold. I hope you enjoy this podcast. And now I give you Judge Jesse McClure.
Brian Beckcom: Brian Beckcom at VB Attorneys here, and I have got a longtime friend of mine and one of the nicest, coolest guys I've ever met in my life: Judge Jesse McClure. Jesse, how are you doing today, man?
Judge Jesse McClure: Doing well. Good to see ya.
Brian Beckcom: Yeah, yeah. How's the family?
Judge Jesse McClure: They're doing good. You know, stir crazy. You have kids, too, so, you know. They never quite get used to what we're doing these days with the pandemic, but they're doing well, all things considered.
Brian Beckcom: You've got three kids now, right?
Judge Jesse McClure: Yeah, I have a 10-year-old daughter, and then we have twins of each that just turned two a couple of weeks ago.
Brian Beckcom: You've really, really got your hands full. I was talking to John Stephens -- he’s a Methodist pastor -- a couple of months ago. He was making the point that, like, if you have kids that are teenagers, it's one thing. If they're in college, it's another thing. But man, I'll tell you what, having twins that are two years old, man. How are you guys dealing with that?
Judge Jesse McClure: I just try to make sure they go hard at least a couple hours a day with physical activity. It's challenging when it's 95 degrees with 85% humidity, but, you know, I'll get out there with them at 5:30, 6:00 at night, and try to wear them out a little bit.
It's good that they're twins because they have each other, but it's hard because they rarely see kids their age. I have the feeling when we get back to normal, whatever that looks like, sharing is going to be an issue because they're not used to having to share.
Brian Beckcom: I hear you, man. Well, you know, I've got three, basically teenagers now. And so my problem was they're all staying up till 2:00 AM and sleeping until 1:00 AM. So my schedule kind of got screwed up a little bit. You've probably got the opposite schedule right now.
Judge Jesse McClure: No, I mean, they're pretty much up by 8:00 no matter what. So you go hard the night before, it's going to be a rough first half of the day the next morning.
Brian Beckcom: Yeah. You're going to pay for it the next day.
Judge Jesse McClure: Yeah.
Criminal Court During a Pandemic
Brian Beckcom: Well, Judge, is it okay if I call you Jesse?
Judge Jesse McClure: You call me Jesse, yes.
Brian Beckcom: Okay
Judge Jesse McClure: I always tell people, when I'm not on the bench, no one needs to stand up when I enter the room.
Brian Beckcom: Perfect. Well, Jesse, there's a lot of things I want to talk to you about. You have a fascinating work history, including working as a White House intern. You've had some experience in law enforcement outside of the judge’s context. And I want to talk to you about some of your experience in law enforcement and in particular as it relates to some of the stuff that's going on right now with the protests and the statues and all those sorts of things. I want to talk to you a lot about that. I want to talk to you a little bit about cancel culture, what it's like having an interracial family, things like that.
But before we get into that, the very first thing I want to talk to you about, Jesse, is you're a criminal court judge in Harris County. What are we doing right now to make sure that the criminal courts and jury trials and things like that are going forward? And the reason I ask that is because I've talked to some judges in civil court. And for people that aren't familiar with the differences, the criminal court trials get precedent under the seventh amendment, generally. We can delay some of these civil cases, and things won't be that bad, but for the criminal cases, Jesse, we kind of got to figure out a way to move forward regardless of the situation we're in. So what are you and some of the other criminal court judges that you know, what are y'all doing to make sure the wheels of justice keep moving forward?
Judge Jesse McClure: One of the things we do is, you know, we've encouraged early on, and I'm sure this happened in civil as well. You encourage the parties, like, look, just because we're not having trials, basically, we're operating under the assumption that eventually, we're going to have trials in person. And there are things that need to be done before we go to trial. And the parties need to make sure that all the discovery is completed, so when we hit the green light and turn it on, it's ready to go.
But it is a difficult situation. Obviously you're talking about people's liberty. I was a prosecutor for a really long time before I was a judge, and if you have a very serious -- it sounds weird to say, “very serious murder case,” so I'll just say “murder case.” You know, if the state wants the defendant to serve 30 years in prison, that's a really long time, and you might have a defendant who's like, “No, I want my day in court. I want my trial.”
Obviously, if there's a murder case, usually one of the undisputed facts is that somebody's dead, so that person's family and friends want their day in court as well. And so what we've really been encouraging is, we may not be going to trial right now, but you need to be ready to go to trial when we're ready to go to trial, so we don't have any more unnecessary delays. Because again, the first trials that are going to be going in front of juries are going to be very serious and, unfortunately pretty old criminal trials. And we need to be ready to go, for everybody's sake.
Brian Beckcom: So, I was reading on Facebook the other day, and I don't know if you know Judge Donna Roth, she's a civil court judge in Harris County. I've actually tried a case in front of her. She's a very, very good judge. I think she was a practicing lawyer for 30 something years, like you and I, practicing lawyers. You were a practicing lawyer before you became a Judge.
So, Judge Roth, you, me, we really appreciate how important it is, both in the criminal and civil context, to actually at least have the threat of a jury trial. And I was actually seeing where Judge Roth, it looks like, started a jury trial. She put this on her Facebook page, and they were in NRG, and they had social distancing and all these sorts of safety measures. I think the case settled before they actually went to trial, but right now in Harris County, are there any criminal trials going on?
Judge Jesse McClure: Not that are going on right now. I think the biggest issue right now is, well, there are several issues, but one of the concerns from the defense bar and rightly so is if we're doing social distancing, it's hard to whisper in your client’s ear from six feet away. Another issue that the defense bar raised, and again, as somebody, you know, you've picked juries, I've picked juries. When you have 65, you know, a typical jury panel might have 65 people on it. You start doing the math with keeping them six feet apart. Next thing you know, juror number 65 might be 30 yards away from you.
Brian Beckcom: Yeah. You're talking about, like, a football field or something. Yeah, yeah.
Judge Jesse McClure: Yeah. And so you're asking questions. When people are closer together, obviously more people are in your field of view. So you might be talking to juror number four about a criminal law issue, and maybe juror number 21 makes a face. Well, if they're close to each other, you can kind of see that out of the corner of your eye. If you're doing that with everyone six feet apart, you might not see juror 21and if juror 21 makes a really bad face about, you know, if the defense attorney is saying, “Hey, can you guys understand why we have the right to remain silent when talking to the police,” if juror 21 doesn't believe that, and maybe that's not the kind of thing they're going to say, but they make a face, and you miss that. I mean, you might not want that person on your jury as a criminal defense lawyer. And so that's a concern as well.
We're really trying hard to find a way to have a fair trial for everyone. Obviously, the number one person who the trial needs to be fair for is the defendant. And that's a challenge right now. So, we're still working through those issues. I hope, eventually, I'd love to try a case. I mean, that’s one of the reasons why I wanted to be a criminal court judge. Right now, we're just having a hard time doing that.
Brian Beckcom: Well, you know, this whole thing is fascinating to me, because there's all sorts of different industries, businesses where you can make a lot of changes. You can move things around. Restaurants can go all online. Restaurants can have all their stuff outdoors. There's just all sorts of businesses where there's a lot of different things that you can modify, but you and I both know we got something called the seventh amendment and your right to a trial by jury is enshrined in the United States Constitution. It's also enshrined in the Texas Constitution. So, there's no way around that that I know of other than, like, maybe in the civil case, if you were agreeing to try the case to the bench instead of having a jury, maybe you could do that. Maybe you could do an arbitration. But we got to have jury trials.
So, I'm really, really curious, particularly now with a lot of the protests, a lot of the violent stuff that's going on, where we really need a functioning criminal justice system. Are y'all prioritizing, maybe, like you said, the more serious cases, the murder cases, the violent cases, stuff like that, over some of the other cases that may be, you know, misdemeanors or cases where there's not as much violence? Is there any sort of kind of prioritization going on?
Judge Jesse McClure: There are certainly issues going on here. I'm a district court judge, so basically, I only handle felonies. There's limited cases that are misdemeanors that can be my core, but 99.9% of our cases are felonies when you’re a district court judge.
The cases, in a way, prioritize themselves because of the nature of the laws around punishment. So, for instance, there's certain cases where only a jury after a guilty verdict can give somebody a probation. So, those kind of prioritize themselves because the defendant's going to say, “Hey, look, I'm not gonna sign up to go to prison,” or, “I'm not guilty, but in the case I am found guilty, I'm not signing up, you know, I want a shot at probation.” So, those cases prioritize themselves because those are the cases that are hardest to settle.
So, you have the same rights as somebody who got busted for their third DWI, as somebody who got busted for capital murder. I mean, those rights transfer regardless of the charge. Obviously the cases that need the most attention get the most attention. But, that's one of the things that's enshrined in some of our local orders that we've voted on as a body is, hey, if you don't need judicial intervention, we don't want you coming to the courthouse. We don’t want you to get sick.
So, we're being very selective about when somebody has to appear in person. So they're kind of prioritizing themselves, but, I mean, obviously, our number one priority is we don't want to make the pandemic any worse than it already is. And we also want to protect the rights of the criminal defendants who appear in our court and want their day in court and have a presumption of innocence. We definitely want to protect their rights.
Brian Beckcom: So, one of the things that's on my mind, Jesse, is, like, for instance, the really serious, the murder, the violent cases. The cases in which we may need to lock somebody up. We can’t have a bunch of people that are accused of murder necessarily walking around on the street. How does it work? Like, let's say somebody is charged with murder. Is the hearing to determine whether they're going to be out on the streets or whether they're going to be locked up, is that a judge-made decision or do you have to bring a jury in for that, too?
Judge Jesse McClure: No. So, bail determinations are all judge-based. And there are several, I mean, I have several people charged with murder who are on bond, and they might have certain conditions of their bond, but we have several people charged with very serious offenses on bond. So, it's just a case-by-case determination, but those are all judge issues, not jury issues.
Brian Beckcom: For the people that are worried about whether our streets and communities are safe: right now, at least, there is a mechanism by which our judges in Harris County can determine whether somebody should be incarcerated, pending trial or not. In other words--
Judge Jesse McClure: Oh, sure.
Brian Beckcom: Yeah, we don't have to wait for juries for that. So, for people that are worried about a bunch of criminals running loose on the streets, it sounds to me like it's kind of the same way pre- and post-pandemic. I mean, the judges make the determination, and the coronavirus hasn't really affected that too much. Is that right?
Judge Jesse McClure: Yeah. I mean, we're obviously mindful of the rules are the same, regardless of pandemic, no pandemic. The rules are the same. Obviously, everyone's innocent until proven guilty. And there are people who are charged with very serious offenses on bond, and that was the case 10 years ago.
Brian Beckcom: Yeah, that would be the case regardless of whether we had a pandemic, right?
Judge Jesse McClure: Yes. Yes.
Brian Beckcom: Okay, cool. So, let me -- switching topics, ’cause that makes me feel a lot better and I think that'll make a lot of people feel a lot better because, in the civil context, which I'm involved in on a daily basis, the judges are doing a fantastic job in Harris County. They're doing everything they can short of jury trials. But there are many judges that are just, I mean, I've got cases that are ready to settle right now, Jesse, that have been pushed off into 2021. So, I'm glad that our criminal justice system, at least that piece of it, it's still functioning pretty much as normal.
Becoming a Judge
Brian Beckcom: Now you're a judge, you were appointed by the governor of Texas. I think there'll be a lot of people here that are listening to this podcast, Jesse, and they'll want to know kind of generally -- maybe they're interested in becoming a judge someday. They want to know how the process works. Like, what would be your advice to younger lawyers or even kids that are thinking about going to law school that are interested in being a judge? Like, how would you go about being a judge? Before you answer that question, though, tell us why you became a judge. Like, what was it for you that made you interested in being a criminal judge?
Judge Jesse McClure: Wow. I think it probably first came up on the radar growing up, I think, when I hit sixth grade. One of my good friends, who's still a good friend to this day -- if you said, “Who's your best friend?” I'd say he is. His father was a criminal court judge in Arizona. He was actually one of the first Black criminal court judges in Arizona.
I wouldn't say I aspired immediately -- like, while I was in high school and I've known him for 30-something years. It's not that I really aspired to being a judge, but I knew that it was sort of, it was kind of always in the back of my mind. I never really thought about being a judge until probably 2013, 2014. One of my good friends who I believe you're friends with as well, Gerald Eveleigh, who worked for Governor Perry.
Brian Beckcom: Yeah, sure. Great guy.
Judge Jesse McClure: Yeah, he's a great guy. Aggie. So, of course you love him.
Brian Beckcom: Even greater guy.
Judge Jesse McClure: You know, he was involved in the appointments process for Governor Perry, and there were several judicial appointments made in Harris County, and I knew a lot of the people that were involved in that. And finally, at some point, somebody said, “Well, hey, why don't you think about it?” And a certain pastime for trial lawyers is to complain about judges.
Brian Beckcom: I've never done that, by the way. All the Judges that are watching or listening, ever never complained one time.
Judge Jesse McClure: I've appeared in my life, you know, I counted one day, and I don't remember the number, but I've probably appeared before 40 or 50 judges in my life, and at some point, when you complain, or you see things you don't like, there's a choice to be made, and one of your choices can be, well, if you think you can do the job as well or better, maybe you should.
Brian Beckcom: Can I interject something right there?
Judge Jesse McClure: Yes.
Brian Beckcom: One of the reasons I started this podcast is ’cause I wanted to talk to people that were leaders and people that were positive. And one of the things I've found after 17 episodes is there's a lot of commonalities.
Congressman Will Hurd, who just got released this week, said something on the podcast that was just basically identical to what you were saying. He said, “When I was in the CIA, one of my jobs was briefing members of Congress on intelligence issues.” And he was stunned by the quality of some of the elected representatives. So, I think Will's comment was, “My mom said you're either part of the solution or part of the problem.” So, he ran for Congress in order to help the intelligence community from the other side of the aisle, so to speak. So, it sounds like kind of the same thing for you. You decided, “Hey, if I'm just going to sit here and complain about the judges, I'm part of the problem, not part of the solution.” So, very, very similar.
Anyway, you were talking about the process of becoming a judge.
Judge Jesse McClure: Yeah. So, judges in Texas are elected, and there are party labels. So, for instance, like the City of Houston, if you run for mayor, you're not running -- like, on the ballot, it's not going to say, “Joe Smith, Democrat,” or “Jane Smith, Republican.” It's just going to say, “Joe Smith” or “Jane Smith.” But in Texas, a state district judge runs on their party label. So the advice is really to be the best lawyer you can be
But also, there's a political process, frankly. And I ran in 2018 for judge. Well, I applied -- so, there was a vacancy in 2017 that was created when one of the sitting district court judges ran for a higher court and won. So, there was a vacancy. I applied for that. Went through the interview process with the governor's office, didn't get it. And then I ran in 2018. And then the court that I serve in now, my predecessor resigned so she could run for one of the county commissioner spots. So it’s a two-track thing. There's the political track, and then there's the “hopefully you know what you're doing” track. Thankfully, I would say the politics has been -- as far as your day-to-day job, the politics don't matter.
I don't know if it's a brag or what. It's just what it is. I'm the only Republican in countywide elected office, if that makes sense. So, there are 60 district court judges. Fifty-nine of them are Democrats, and then there's me. But it doesn't come up. It really doesn't. And when it does come up, I'm the one -- I've raised it as a joke. I'll joke at a judges meeting, “Well, you know, I'm the only Republican here. I'm going to go run off and tell all my Republican friends what you guys are doing.” I raise it as a joke.
My colleagues have been nothing but welcoming and professional, and hopefully, I've been the same. And as far as if you want to be a judge, you know, if you want to be a judge in Texas, it's probably 75% being the kind of lawyer that other lawyers would want to be a judge in 25% being savvy at the political game and knowing who the players are and winding your way through that process.
Brian Beckcom: And one of the things, Jesse, I remember having coffee with you more than once at Starbucks, and you and I just sat and kind of talked about life. This is when you had decided to run for judge. You were asking me for my support, and I immediately was going to support you. There was no doubt about that. But one of the things that really impressed me, Jesse, with you personally, was you got the personality, the kind of ethics and the values that irrespective of party, whether you're a Democrat or Republican or something else. It just always struck me that the reason you became a judge was not to throw as many people in jail for as long as possible. Conversely, it also wasn't to release everybody as soon as possible. It was to be fair. To give everybody a fair trial. And to do the right thing as you see it. So, is that an important part of your judicial philosophy?
Judge Jesse McClure: Yeah, it definitely is. And it's hard because it's hard to go from being the advocate to being the judge. It's sort of like if you hired a retired NFL player to be an official. You have to kind of put aside -- some of the things you really have to put aside is, “Well, if I was in this position, if I was that lawyer, I’d be doing this differently.” Or, “If I was this lawyer, I’d be doing this.”
It’s weird. it's like, you're supposed to exercise mercy and wisdom without knowing everything. ’Cause you're not going to know everything and you're not, you know, you know what the lawyers are telling you. And that's not because they're hiding the ball or anything like that. It's just both sides are going to put on their best case. Both sides are gonna showcase their best arguments. And a lawyer has a duty, to be honest with the court, but the advocate doesn't have the duty to tell all the bad, you know. “Judge, first, let me tell you all of the bad things,” you know, “the state's now going to tell you all the weaknesses in this case,” or “the defense is now going to tell you all the weaknesses of the case.” And that's not what they're supposed to do. And quite frankly, I'm supposed to use the information I have. Obviously, I can clarify things, but I want to be merciful when mercy requires.
My joke has been a couple of times that, “Man, Jesse the Prosecutor would be really disappointed in Jesse the Judge today,” because it's different when you're the one -- it's one thing to argue for something. It's another thing to be the one who decides, and those are two totally different things.
I do believe in redemption, and I believe that, you know, one thing that still goes on is people still plead guilty and have me decide what their punishment should be. That's a serious place to be for me. That's a serious place to be for the defendant. You have to try to be humble enough to realize that I'm not better than this person. My life is not inherently worth more than this person’s. And people make mistakes.
I was raised in a pretty privileged, safe environment that not everyone was raised in, and I didn't choose that. I mean, I would choose it if somehow you could ask eight-month-old me, “Is this the environment you'd like to live in?” Well, yes, obviously. But I didn't choose that, and not everyone chooses their circumstances. And so you need to be mindful of other people's circumstances when you're evaluating what we should do with them.
Philosophy and Responsibility as a Judge
Brian Beckcom: I did not know that we were going to move in this direction, but I'm really glad that we did.
So, I was reading your bio and some of your online stuff this morning, and I guess I had forgotten you were a philosophy major in undergrad, and I have a philosophy degree, too. And that point you just brought up is a pretty deep philosophical notion. And the idea is essentially if you go back far enough, all of us, like, the situation I'm in, the situation you're in, the situation Donald Trump is in, or anybody else is just pure luck. I mean, I didn't choose my parents. You didn't choose your parents. They didn't choose their parents. We didn't choose where we grew up or what school, for the most part, we went to.
So, some people philosophically will say, if that's true, how can we blame people that have grown up in very, very bad environments for becoming criminals or people that have had parents that are criminal. They're like, where's the philosophical justification for that. And of course, if you study this a lot, you know that even if it's luck, your circumstances, we still have to have rules in society that will cause people to modify their behaviors irrespective of their circumstances.
But just philosophically, Jesse, just philosophically. I mean, there are times when you are literally sitting as Solomon and deciding somebody's fate, and that's a huge responsibility. So talk to us a little bit about how seriously you take that. And what I'm talking about specifically is when it's your decision about whether you're going to send somebody away for some period of time, how do you deal with that? Do you consider that to be an extremely important role that you play, and how do you kind of work through those issues personally?
Judge Jesse McClure: It’s probably the -- I don't know if it's the most important thing I do, but it's the one that weighs on me the most. Just sort of mechanically, they come up and they say, “Okay, Judge, my client’s gonna can plead guilty to aggravated robbery. Judge, he really wants you to give him deferred adjudication,” which is a kind of probation. And if I don't give him that, then he's just got to go to prison. So, aggravated robbery is five years to 99 years or life in prison, or I can put them on deferred adjudication, which is probation. And then if he messes up probation, then the five to 99 or life is back on the table.
So, he fills out the paperwork. He'll do an interview with somebody at the probation department, and I'll tell the defendant, “Look, obviously, you need to take this very seriously. But you're putting me in a position where I could literally send you to prison for life in five minutes, and there's really not a whole lot anyone can do about it. Like, I just need you to understand that, number one. Number two, I need you -- anyone who's going to say anything kind or nice about you, you need to find those people. They need to write a letter, or you need to drag them in the court or whatever it is you need to do, you need to get them here.” But that's a very weighty decision ’cause oftentimes, in the most serious cases, you have somebody on the other side who's been a victim of this crime that the defendant is pleading guilty to who's going to say, “He needs to go to prison for life,” or “He needs to go to prison for 30.”
And that's a really -- those decisions are very -- they weigh on you. They stay with you. And I haven't been a judge that long. I’ve only been a judge eight months, but every one of those very serious, you know, I still think about them all the time. It's a weighty thing to decide. And again, as the prosecutor, you can just stand, you know, or as a defense attorney. Either way, you can stand there and just make your argument, advocate for your side. But it's a lot different thing than being the one who actually decides.
A lot of it is, okay, you know, the severity of the crime. And also, just, what are we trying to accomplish here? On the smaller cases, somebody who -- step back from the aggravated robbery example. Somebody who has a cocaine problem and they have a serious cocaine problem. That's a little easier because what we're trying to do is heal that person so they're not addicted to cocaine. A lot of our crimes that are not, you know, a lot of people who were charged with burglary or a lot of people who are charged with other crimes that are not labeled drug crimes, they kind of are drug crimes because --
Brian Beckcom: Absolutely, yeah.
Judge Jesse McClure: Addiction leads you to make poor choices that lead you to do other things. And I think we've gotten a lot better. It's weird to be the old guy now, because when I first became a prosecutor --
Brian Beckcom: By the way, you're not that old, man. We both got beards. Okay. For people who are just listening on the podcast, you're a Black dude. I'm a blond-headed white dude. And I've got way more gray in my beard than you do, man.
Judge Jesse McClure: Yeah, that’s true.
Brian Beckcom: I think you're cheating. Are you cheating?
Judge Jesse McClure: No, I am not cheating. I don’t have very much hair, though. You definitely beat me with hair.
Brian Beckcom: I have more hair. You have a better beard.
Judge Jesse McClure: Yeah.
The War on Drugs and George Floyd
Judge Jesse McClure: Well, one of the things I've grown personally, I'd say, in my career is I used to see drug addiction as kind of a moral failing.
Brian Beckcom: Me, too. Me, too. Yeah.
Judge Jesse McClure: You and I were both raised in the ’80s. It was, “Just say no.” And if you didn't say no, it must mean you were weak, and you should have been stronger.
I've now come to know, you know, we talked about choosing your parents. There's a genetic component to addiction. There's an atmospheric component to addiction. There's an environmental component to addiction. And so as we've learned more about how addiction works, we've gotten better about not treating addicts as if they're these morally deficient beings. We treat them like human beings that we want to get better, and our society will be better if we, you know, the more effective we are at fighting addictions as a society, the better off our society will be. And that's one of the goals I have when I see somebody who has an addiction problem is, “Okay. Let's” -- and it doesn't mean there might not be some not so great consequences.
Part of treatment is recognizing that there’s consequences to your actions, but part of treatment is also treating you like this is a disease. It's not a moral failing. And we need to find ways to heal these people, and that's hard and it's frustrating, but it's also rewarding. When you see somebody who's doing well, you know, I get reports on probationers, and it's like, “Hey, this guy's been clean for a year and a half.” I mean, that's a great thing.
Brian Beckcom: Very gratifying. Very gratifying. And Jesse, one of the, just like you said, my views on the drug war have evolved. But basically not a complete 180, because like you said, we both grew up in the era--I'm 47. I think you're probably about the same age.
Judge Jesse McClure: Yeah. I’ll be 48 in October, yeah.
Brian Beckcom: Yeah. So, anyway, we were raised in an age where we were told by Nancy Reagan that if you smoked a joint, you could die. And meantime, she's doing prescription medications while she's telling everybody this, and so I've really changed my mind about that. I want to flag that for a second. ’Cause I want to talk about another thing that particularly criminal court judges face, and that's if you're a good judge and you give somebody a second chance, and that doesn't mean setting them free, but you don't give them the maximum or something like that. And they come in there, and they put on this great dog and pony show about how they've learned their lesson and all that stuff. And then they go out and commit a bad crime again. You're going to be the one that's blamed.
Like, the criminal court judges, it's kinda tough to win because if you're too strict with people, people will say you're just a hang 'em high-type of judge. But if you release somebody or if you give them a shorter sentence because they seem like a good person at the time, they seem like they reformed, and they go out and commit a crime, the media is going to, I mean, we've seen this all over the media, right? And I know you don't make decisions based on what the media says, but a criminal court judge like you, Jesse, you could make a perfect judicial decision, and then the person just turns out to have been a fraud and just defrauded you and went and committed another crime. And it's really not your fault at all.
You know, you're talking about the drug war. And I think this is a good transition period to talking about some of the protests and some of the things that are going on right now. So I've been hearing a lot about, we all have, George Floyd. I've heard some people say, “Well, he was a criminal. He was a criminal.” And he did have a criminal record. There's no doubt about that. But I looked back, ’cause I wanted to figure out kind of what started George's criminal history. And it was delivery of a small amount of a controlled substance to somebody. He ended up -- he couldn't afford a lawyer. He gets a court-appointed lawyer that I think had been in trouble seven or eight times.
He ends up with a felony, okay. For a small amount of drugs. And for people that aren't familiar with the legal system, you lose the right to vote. It becomes incredibly hard to get a job. So George was kind of put on a path early on, that some other people that do the exact same thing -- like, you and I, I'm sure, know people that have done the same exact kinds of things that George Floyd has done, but maybe because there are different circumstances, they didn't get the same kind of punishment.
What are your thoughts in general right now about the George Floyd situation? And you and I are both in Houston, so it's really close to home for us. The George Floyd situation, the protest, police brutality, Black crime, stuff like that. Give us your thoughts on that, Jesse.
Judge Jesse McClure: I guess at the outset, I'm sort of old school, small C conservative in the sense that one of the things that I strongly believe in is that the government needs to tread lightly in the affairs of the people. And I think that's true whether you're talking about it from a business regulatory point of view, perhaps, although I'm probably a little less dogmatic about that. But it's not just big government when your taxes are high. It's also the government when you're walking down the street minding your own business, and the government is inquiring as to what you're doing.
When people about -- and again, it's not my case, obviously. I want to be careful what I say about it, but I'll just say this: I think it's pretty clear that we shouldn't have the death penalty for having counterfeit money. We need to have a system where the state is very reluctant to use force against its citizens. And we need to have a system where the state is very reluctant to exercise power over its citizens.
There's so many things that go into the George Ford thing. And there's so many variables, and you could change a couple of variables, and things would be different. It obviously didn't help. Obviously, part of just the release of emotion had a little bit to do with the pandemic, I imagine. We are basically cooped up.
Brian Beckcom: I agree.
Judge Jesse McClure: And then it happens.
Brian Beckcom: And not only that, Jesse, but people are in their house, and all they can do is watch the news. So there was no distraction. There's nothing else to pay attention to. And it's probably good that people focused on this situation.
Judge Jesse McClure: Yeah. I mean, you’re at home, stay home, stay home, stay home. You have the internet, you have video games, you have TV, just stay home. And then you see this, and we've had incidents like this previously, but not under this particular set of circumstances.
One of the things that's really troubling -- the protests don't trouble me at all. What troubles me is that people feel that the system doesn't give them a fair shake. And obviously there's validity to that. I mean, I think at this point, in 2020, to sort of put blinders on and say, “No, everyone's treated perfectly the same, no matter” -- I mean, we all know that's not true. And that's sad, but one thing we can do is to make a better -- and it sounds cheesy, but we need to do a better job of making sure not just that the system's fair, but that the people think it's fair.
When people lose trust in institutions, and we've seen this -- this happened before you and I were born, but it's definitely, I feel like it's accelerated in our lifetimes. People have lost trust in institutions. There've been scandals in all kinds of institutions. They've seen institutions say one thing and do another. And as lawyers, we want our justice system, civil or criminal or family, or any other part of the law, we want it to be fair. We want the side that's supposed to win to win. We want the facts to prevail.
When either the facts don't prevail, or we don't think the facts have prevailed, that's a problem because I remember, you know, we were told this in law school at UT: our justice system is what keeps us from enacting revenge on people. You see people, you know, you do personal injury work. If a company hurts somebody, and you say, “Well, you can't go to court.” Well, if that were the rule for everyone, then people might band together and say, “Hey, you know what? Let's go take out that trucking company, let’s burn it to the ground.”
Brian Beckcom: Yeah. Just take a simple car wreck case. I mean, there are countries where if you get in a car wreck, they’ll literally turn around and instead of taking you to court, they'll pull out a weapon and shoot you.
Judge Jesse McClure: Yeah. I mean, there's a reason why in Russia, they have video cameras on their dashboard. Everyone has a video camera on their dashboard. We want to deter vigilantism. We want to deter people getting revenge. And so we have a court system for that reason, but when that trust is eroded and when trust in institutions like the police or the courts or name the institution. When those are eroded, people go their own way, and people get frustrated, and people take the law into their own hands. And so when we see a large group of people say, “Hey, this is wrong.”
Brian Beckcom: Yeah.
Judge Jesse McClure: At the very least, if you don't want to agree that they're wrong, you at least need to acknowledge how they feel about it. It's like if your wife gets mad at you, the time to litigate the validity of whether she's mad at you may not be right now. You may just need to deal with the fact that she’s mad at you.
Brian Beckcom: Next time my wife gets mad at me, can I call you up? Sometimes I don't do that very well.
So, I come from a military and law enforcement background. And you know my stepmother of 30 years, she was an undercover narcotics agent. She also worked in the Tarrant County DA's office, I think with you and Katie.
Judge Jesse McClure: Yeah, my wife and yeah, she was my wife's investigator. Yes.
Brian Beckcom: Yeah. Yeah. And so I have my stepmother and then my older brother who also happens to be Black, he's an adopted older brother. He was in the Marines, and he was also a DPS officer in Virginia. I called him last month just to get his thoughts on all this stuff and what I worry about a little bit, Jesse, as it relates to what you were talking about earlier with the drug war is I worry a little bit that we're sending really good police officers, good men and women of law enforcement, into a war in a way that they can't -- they're never going to win it. Right?
So, one of the things -- you were talking about the drug war earlier -- that my mind has changed about is just exactly what you were saying. We need to start thinking about this as an addiction issue, as a health issue. We don't want to be just throwing nonviolent people in jail because they have medical conditions. And so I'm really glad to hear you say that. And frankly, I think, and maybe you can speak to this a little bit as both a prosecutor and a judge. I would be willing to bet you that a lot of the cases you saw either were directly related to drugs or indirectly related drugs.
Judge Jesse McClure: Absolutely. Yes. You know, addiction hits lots of people regardless of economic status. But obviously, the more money you have, the more leash you have, the more room for error you have. But if you're sort of the kind of person that not -- maybe not paycheck to paycheck, but at the end of the month you have a few dollars left, but not too many. Then you get addicted. All of a sudden when all your money goes that way or you alienate people you live with and next thing you know, you don't have a place to live. That leads to all sorts of secondary and tertiary crimes that put you in a bad spot, obviously, as the addict, but puts everybody else in a bad situation as well.
Brian Beckcom: It puts the police in a tough situation, too, right? I mean, I was thinking about the Breonna Taylor case last night, and the no-knock warrants and that is a hard -- forget about, I mean, don't forget about it. We need to consider what it's like to be on the other end of a no-knock warrant, but that puts the police in a really dangerous situation, potentially. Like, going into somebody's house without, I mean, I know there are certain probably very limited circumstances where that may be appropriate. But in general, If I'm a police officer, that's a dangerous position to be in. Right?
Expectations and Incentives of Police Officers
Judge Jesse McClure: I think one of the difficult things we have when we talk about policing is I think we haven't quite wrestled with -- everything is a trade-off. So. The more intensely, you know, people talk about New York in the ’90s and the early 2000s where, you know, sort of the broken windows theory of policing, right.
Brian Beckcom: Sure, yeah. It was Edward Wilson or something? A sociologist, I think, wrote that paper.
Judge Jesse McClure: Yeah. If you police the small crimes, there'll be fewer big crimes. Well, one of the consequences of doing that is you alienate the people who are being policed. You need more money to have more police officers. You need more money for more jail space, quite frankly.
When you go down that road, there are trade-offs. And when we don't consider how we police people. When we don't consider, you know, and that could be from either end of the spectrum, right? We've had situations, you know, again, they're not my cases, and I want to be careful. But when there are stories of, “Well, they called the police because this person was acting weird.” Well, calling the police because people are acting weird. Okay. The trade-off. I mean, that's a pure trade-off situation.
You feel uncomfortable. So you call the police. Then if something bad happens, well, that's a consequence of you calling the police when people are acting, or when you get in a minor conflict with somebody, and you just want, “Well, let's just have the police come.” We're having interpersonal conflicts, and the first resort is dial 9-1-1. Well, there are costs to that. And one of the costs is bad things sometimes happen when you do that. And so we're asking police officers to do more -- in a way, we ask police officers to do things that they weren't trained to do.
Brian Beckcom: We ask them to do far too much. That's what I'm saying. Like, I'm coming at this from the perspective of somebody who is a huge fan of police officers. I mean, I've represented police officers, firefighters, in my business. I come from a family of law enforcement and military. I'm coming from the perspective of we're asking them to do too much. Like, I'm thinking about the gentlemen who was drunk in the parking lot of a fast-food restaurant, I think in Atlanta a couple months ago. And rather than just call him an Uber and send him home, it ends up being a fatal confrontation. And I'm sitting there thinking the police officers certainly bear some responsibility, but we bear responsibility as a society for asking them to do too much.
There's a famous quote I saw the other day from Dostoyevsky about you can judge the quality of the society, and I'm paraphrasing, judge the quality of the society by the the condition of their prisons. So, I really like what you have to say about that, but you know, one of the things that kind of changed my thinking, Jesse, about the drug war was I started looking at the history of the drug war. And it turns out that after prohibition, which was, we all know it kind of didn't work, right? I mean, prohibition, was an abysmal failure.
The head -- Anslinger, Harry Anslinger, I think his name was -- didn't have anything to do. He was the former head of what was -- it wasn't called the DEA back then, but it was the equivalent of the DEA during prohibition. He basically made up a story that the Blacks and Mexicans were smoking this quote mar-i-juana and were raping white women and being violent. You know, all the reefer madness stuff. And all of this, by the way, was just completely made up. It was complete bullshit.
Then you fast forward to the sixties. And there are tapes of Nixon talking to his campaign advisor when they started up the war on drugs, and it is explicitly racist. I mean, they explicitly say on tape, “Blacks and hippies vote Democratic. So if we can have a war on drugs, we can interfere with these people.” It was purely political from the very beginning. It wasn't based on science. It wasn't based on any sort of evidence that people were more or less dangerous.
So what I worry about is if you have a policy that was explicitly racial in nature from its very origins, it shouldn't be surprising to us that those policies tend to disproportionately affect minority communities, ’cause that was the whole point from the beginning. And so that's one of the things that to me, Jesse, this is really important from both the Black crime or the poor crime, whatever communities you're in and the police brutality and all these things, I think are related because, like you're saying, there's different ways to look at the role of police officers. We can look at them as quote peace officers. Their job is to protect the community. And I can tell you the officers in my community, which is a wealthy community in Houston, they look at their jobs as protecting our community.
I worry that because of the war on drugs and some of the other incentives we've given police officers that maybe there are some communities out there where the attitude is, “It's not our job to protect the community. It's our attitude to go in there and clean up the community,” or, you know, it's a different kind of mentality, and so different results may happen. So what are your thoughts on those issues, Jesse?
Judge Jesse McClure: I think we just struggle as a society because we have a lot of deep, long-seated issues that we just have not quite come to grips with. And I think sometimes the sugar high is, “Well, if we go in and have a large police presence, maybe that will work for a little while,” but at the end of the day, people who have -- you know, my father, my late father used to say, “People who have things to lose generally don't gamble the things they have to lose.”
That's obviously not true for everyone, but, you know, if we have good jobs, and people are financially secure in a way that can be procured by legal methods, then they're less apt to commit a crime. But if you're in an environment where there are no jobs, and just the dynamics of the environment are not great, all of a sudden things that would not necessarily be an option to 12-year-old me are an option to a 12-year-old kid that grows up in an environment where that's all he sees. And the problems we have are just so entrenched, and using the police or using police tactics, or using a law enforcement response hoping that that's going to change -- you know, there's people in neighborhoods. I mean, that's sort of the paradox, right? The neighborhoods where a lot of controversial police things happen are also neighborhoods where the people who are there want the police.
Brian Beckcom: They want them there. That's right. That's right. Yeah.
Judge Jesse McClure: They don’t want them to do bad things, but they want them there.
Brian Beckcom: There's this notion, I think, particularly in the white community, Jesse. And tell me if I'm thinking about this right. But there's this notion that the Black community doesn't want police officers there. And I think that couldn't be more far from the truth. I mean, they want their communities to be safe.
Judge Jesse McClure: In 2020, there's very few things I think we can all agree on, but I think we all agree: we want good police officers.
Brian Beckcom: Yes, for sure.
Judge Jesse McClure: We want good, fair police officers. And I don't think anyone wants to live in a society where we don't have any police at all, and you're just kind of at the mercy of the biggest, baddest person on the street. And if they're nice, then great. And if not, well, we got a problem. I mean, everyone wants good, hardworking, honest, fair, compassionate, slow to anger police officers. I mean, everyone wants that. But again, every institution that's staffed by human beings is going to fail us in one way or another.
Brian Beckcom: That’s right. So, my view on that sort of thing, you're exactly right. Every institution, it's like, some people will say, “Well, the government spent too much money on that. Therefore, the entire government is bad.” Or they'll say, “this corporation did something they shouldn't have done. Therefore corporations are all bad.” That's just not true.
Like, with the police. You probably know hundreds of police officers. I bet you I know 40 or 50. The vast majority of the officers that I know went into policing for the right reasons, and they are still in it for the right reasons. And they're upstanding people that have a very, very, very difficult job that they don't get paid enough to do. So, to me, it's not so much about the individual officers. It's more about the incentive structure we set up.
For instance, I still don't understand, as somebody who has studied the constitution a little bit, I don't understand how civil forfeiture is legal. And civil forfeiture is where if you're basically suspected of being involved in certain kinds of crimes, I can just take your property. Without you being convicted. That kind of incentive, I think, you know, it just creates a bad incentive for law enforcement officers to maybe go after some crimes are criminals they wouldn't otherwise go after quite as hard. What are your thoughts on that? What are your thoughts on the incentives?
Judge Jesse McClure: What’s interesting -- so, I actually did some civil forfeitures a decade or so ago. So, first of all, you can sort of trace it back to the Bible. There's a verse about if an Ox gores somebody, you're not supposed to kill it and eat it’s meat. Like, you kill it, but you don't eat it’s meat because basically we're saying is the thing itself is bad, so no one should probably derive any benefit from it.
Anyway, forfeiture, there were some, I mean, I'd say it's better now than it was before, but it's one of those things I think we have -- again, it goes back to trade-offs. Like, there's a lot of money for police agencies and civil asset forfeiture. And we'll go back and watch hearings before the legislature about the issue and every now, and then somebody will basically say something to the effect of, “Well, if you take civil asset forfeiture away, are you going to supplement our budget to the amount that we were getting for physical asset forfeiture?” And then all of a sudden, everyone kind of looks at each other like, “Oh, uh.”
So, it basically just becomes -- it's almost like a tax on -- it's a tax on wrongdoing that's been proven by a preponderance of the evidence is basically, sort of, if you want to think about it that way. It's sort of like if you gave -- and no one's gonna admit to doing this anymore and I think the vast majority of police agencies don't, but there was a time 30 years ago or 20 years ago where there were quotas for traffic tickets. Well, if you give somebody -- any number you put in somebody's performance evaluation, they're going to try to hit that number.
So if you give a police officer, “Hey, you need to arrest X many people,” or, “You need to write this many tickets,” by the nature of your employment, you're going to shoot for that number. And if you tell the police agency, “We're going to fund your agency all but $2 million, you're going to have to find this $2 million somewhere else.” Well, you've incentivized them to find $2 million somewhere. And one place might be, “Hey, if we join a federal task force and stop 18-wheelers on I-20, maybe we'll get lucky and hit the jackpot.”
But again, it goes back to, we need to decide what's important and what we want to be. And again, there are trade-offs. One of the trade-offs to, “Hey, we're taking drug money off the street” is, well, somebody might be completely innocent, or just not guilty. And we took something from them. We took their car. We took a bunch of cash that we think is drug money, but maybe it's not drug money. And we just need to have that conversation. I mean, obviously the legislature is the one who decides that. But that's a conversation among all the other things we need to talk about. I mean, that's something that we need to figure out.
Brian Beckcom: Well, to me, at least, it's bizarre when you see pictures of cops driving around in Corvettes. Like, you know exactly where that came from, right? And, you know, for sure we have to have enough funding for our law enforcement agencies, but this is kind of, again, one of those philosophical issues that I've always been interested in, where you have, on the one hand, nobody wants to pay too many taxes. Nobody. Everybody wants to pay as little taxes as they can, basically. But then on the flip side of that, we gotta keep in mind: Who funds the police officers? Who funds the criminal court judges? Who pays your salary, Jesse? Who pays the teachers? It's us. It's the collective taxpayers.
So, it's that balancing act between, you know, when people say, “Oh, the government is bad, the government is bad. We shouldn't pay taxes,” I always think, “Are you saying the military’s bad? Are you saying prosecutors? Are you saying police?” No, of course that's not what they're saying. But that's the government. And so we have to make a decision as a society: How much are we going to fund the police officers? Like, if we really want the best officers, we're going to have to pay for that. I mean, we have to pay for training. The money has to come from somewhere. And so right now it sounds like what you're saying is some of the time, it's coming from civil forfeiture.
Judge Jesse McClure: Well, part of it, yeah. I mean, part of civil asset forfeiture funds are used for training, equipment. You know, and obviously, no one's going to say training and equipment aren't important, but, again, it goes back to: we want people to respect the law. Bad laws make people disrespect the law. And it's not that I'm saying that civil asset forfeiture is a bad law, necessarily. What I'm saying is we need to have a conversation about what is it we're trying to accomplish? Is this the way to accomplish it? Is this a road, you know, because you have 999 -- it's like anything. You could have nine -- especially when the stakes are high. You can have 999 events that go smoothly. You can have 999 civil asset forfeiture cases that are righteous.
But it's the one where the police department takes somebody's money. You know, we had scandals 20 years ago where it was basically, you get pulled over, and if you had a bunch of cash, they'd let you go. If they admitted that it was drug money and they could take it. And if you wanted to fight the asset forfeiture, well, you're gonna have to go for a ride downtown, and we'll book you and process you, and you can fight it later. I mean, it only takes one of those for people to say, “Wait a second, this isn't right.”
Brian Beckcom: There’s something weird about this. Yeah. Yeah.
As trained lawyers and philosophers, too, I guess, the edge cases are always the tough cases, right? It's always the, you know, most of the time in the middle, things are going to be pretty reasonable, but we're always taught to look at the edge cases. Like, where does this idea start breaking down?
Brian Beckcom: Jesse, I want to switch topics just a little bit, because I want to ask you, well, you and I have been friends for, gosh, twenty?
Judge Jesse McClure: A long time.
Brian Beckcom: Yeah, a long time. And I got tell ya, and everybody from UT Law who’s listening to this podcast right now will absolutely agree with me. From the second we met, I just thought you were a great guy. But we've been friends for a very, very long time and I've never asked you this question.
So, you've been a White House intern. You've been a special prosecutor. You've been a prosecutor--or, an attorney for the Department of Homeland Security. You're now a criminal court judge. You've been in some very prominent positions. But you're also a Black man married to a white woman with interracial kids. So, I'm curious to hear from your perspective, have you experienced any sort of situations where being an interracial couple, you know, have you ever had any problems, any sort of thing related to you and Katie's marriage?
Judge Jesse McClure: You know, it's weird. We've been talking about this a little bit lately in our house. Probably the most surprising thing has been that when people say stuff that maybe is not “right” now. And I use that in quotation marks. It usually comes from a place where they're trying to tell you how okay they are with the relationship. So they'll go on and on about all “Oh, your children are so -- oh, your family's just so amazing.” And you know what they're trying to do. I mean, they're trying to say, “Hey, I'm a good person. I'm okay with this.” But in that trying so hard, it's almost like, okay, we get it. You know, there are five other families here. You haven't said anything to them, but you're falling all over us.
Brian Beckcom: You're, like, killing us with kindness over here. Right? Yeah.
Judge Jesse McClure: Yeah. And I get that that comes from a place where you're trying to make me feel good, but in a way, it's -- it's an interesting --
Brian Beckcom: It’s almost a little patronizing. It can be a little patronizing, I would think.
Judge Jesse McClure: Yeah, it does. Like for instance, I'll have people tell me like how, “Oh, you're just so well-spoken. Just, the words you use.” And on the one hand. What they’re trying to say is -- on the one hand, they're trying to compliment me, like, “Hey,” and they're trying to say, “Hey, I'm good with you being Black. It's okay.” On the other hand, what they're saying -- what they're kind of saying is, “I have such low expectations for Black people that the fact that you're able to string a couple sentences together is really shocking and surprising to me because all the other Black people I know can't do that.”
Brian Beckcom: Yeah. Or even more likely, Jesse, frankly, or, “All the other Black people that I don't know that I see on TV,” or something like that. Right? You know, and that's one of the things that I've really reflected on a lot lately because I grew up in a single-family household with a Black older brother. I played basketball, I hung out with huge Black guys all the time. I've got a lot of friends that are Black. I thought I knew everything there was to know about this issue.
Then I had a big Black friend of mine. He describes himself, he was a college football player, describes himself as a pitbull. 6’2”, 250. And he told me some stories about some of the things that he had to go through that I'd never even considered. Right? Like, so he said, “If I go to Memorial Hermann park at night, I gotta be extra careful because I’m intimidating-looking.” Right? And so part of this conversation we're having right now, I think, is more of a matter of just education, right?
Like, I know guys that are great guys that I went to college with that would use the N-word when I was in college because they didn't know any better. It’s how they grew up. And I would tell them, I'm like, “I don't want to hear that, guys. That offends me. You say that -- you go somewhere else and say that. Don't say it in front of me.” And they looked at me like I was crazy. Right? Because nobody had ever said that to them before.
So a lot of this, I think, is just about kind of education and being exposed to different cultures and different types of people. And I feel very, very lucky, and I haven't thought about this until recently, that I was raised in such a way that I was exposed to a lot of different people from a lot of different walks of life. But that's interesting that you would say that about, you know, people almost trying to be too nice to you, right? I mean maybe, to me, at least, Jesse, the point is I always get a kick when especially my white friends say, “I'm colorblind,” or, “I don't see race.” I’m like, “Really. You don't see race?” I mean, I can see you’re Black, Jesse, you can see I'm white and have blond hair, but the point I think we want to get to is where that doesn't matter. It really has nothing -- no bearing at all on whether you're a good person or a bad person.
Judge Jesse McClure: Well, and what's hard is, so, you know, you talk about going to the ballpark, right? So, I mean, what's hard is if I'm running down the street and you don't know me, you probably have a, you know, not you, but there are people who are going to have a negative, “Ooh. I don't know.” And I've definitely had moments in my life where I had to be, like, “Hello. I'm the non-threatening Black person walking behind you. I’m not going to do anything.”
Brian Beckcom: “Does anybody wanna go play lawn darts with me?”
Judge Jesse McClure: Yeah. I mean, I shouldn't, you know, I shouldn't have to wear a three-piece suit for people to not feel like I'm going to do something bad to them. But then, on the other hand, I don't need you falling all over me, telling me how smart I am or how well-spoken I am. Like, I just want you to -- you can see my, I don't care if you see what color I am. That's fine. My color doesn't determine anything at all.
Brian Beckcom: Who cares. Who cares. Right. When you saw my hair was blond, did you think -- were there any preconceived notions about my character?
Judge Jesse McClure: No.
Brian Beckcom: Right. No, of course there isn't. But I think there's too many people -- and I think we're hopefully getting a little bit better at this. But when I see literally that you have a different type of melatonin in your skin, they make these conclusions that are absolutely ridiculous.
Judge Jesse McClure: Yeah. Well, race is a proxy. I mean, it's been, like I said, race is sort of -- race is a lot of things, but one of the things it's also is it's a proxy for class.
Brian Beckcom: Historically. Historically.
Judge Jesse McClure: Yeah. You must be low class because you look like this. And I think in 2020, more people don't see, “He's Black, so he's morally deficient.” They see, “He's Black, so he must be poor.” “He's Black, so he must be X, Y, Z.”
Brian Beckcom: Or, “He must be angry.” “He must be this or that.” Yeah. All these notions that to me, again, it just kind of gets back to ignorance. I mean, I remember a story that my father-in-law, who's a great guy, told me they went to a swanky function in River Oaks and this Black couple sat next to him. And I actually, he told me the guy's name. I know him. He’s a Vinson and Elkins partner. I think he was an ambassador under Clinton or something. And my father-in-law was like, “Man, you wouldn't believe this guy was a lawyer. And he was an ambassador.” And I'm sitting there going, “Why is that surprising to you?” But for him, he grew up in the ’40s and ’50s in Beaumont, in that area. He was just never around it. He was just never exposed. So, it was surprising to him.
Judge Jesse McClure: Well, and that's what’s sad, I think. I don't know if you heard that concept of the big sword where you like-minded people who look alike are starting to move next to each other. And I think COVID is not going to help this situation where you're so disconnected from anyone who doesn't have sort of the same broad philosophical or political feelings, and the only way you ever encounter anyone that doesn't think like you is on the internet, and then you just scream and yell at them on the internet.
I feel like, in a way, it's only going to get worse because we all don't watch the same three networks anymore. TV is fragmented. You have the internet, Facebook. There's a group for every niche interest. And so you can sort of silo yourselves in these places where you don't ever encounter anyone that thinks any different than you. And then you start to think that that's the way the world works. And then because of the way our political system works now, as far as -- people aren't so much Democrats because they love Democrats, or they're not so much Republicans because they love Republicans. They're Republicans because they hate Democrats and they're Democrats because they hate Republicans. Now we can’t have civil conversation.
What's funny, the meanest people on the internet, if you meet them in person, they don't scream and yell in your face and spit at you and call you horrible names and want you shipped off to a camp. Because we know better not to act like that, you know, there's still a vestige of civility in our in-person meetings. It's just online where we sort of let the demon out and start acting crazy.
Brian Beckcom: I've been doing focus groups for five or six years in my office. We haven't done any since the quarantine, but before that, we were doing a couple a month and we would intentionally, and all lawyers do this, we would intentionally get the most diverse group of people we could. So we would have wealthy people, poor people, white people, Black people, Hispanic people, men, women, old, young.
And the thing that struck me, probably we've done 30 of these and people are deliberating on very, very emotional, important issues. We could be talking about death, we could be talking about corporate misconduct, all sorts of different, really important issues. But what really struck me, Jesse, is in all of these focus groups, nobody has gotten into any sorts of really bad political fights. When people are together in the same room, by and large, they're nice to each other. They're polite. They're friendly. They may feel strongly about a certain position. They may argue strongly. But it's nothing like you see on social media. It's so much more innocuous.
Cancel Culture and Social Media
Brian Beckcom: Well, Jesse, you're a super busy guy. We've been going for more than an hour. There's one more topic I really want to hit with you that you had mentioned this morning, and that's -- because it's kind of a hot button issue right now. Kind of the tension between what they're calling cancel culture, free expression accountability. I actually wrote an article about this a couple of weeks ago because I was really interested in the philosophy behind this.
For people that don't know what we're talking about, cancel culture is basically this idea that there are certain people expressing certain opinions. And then there's another group of people that want to basically kick them off of whatever platform they're on or make them lose their job because of their thoughts and their opinions. And so I've got my thoughts on that, but before we get into that, what are your thoughts on kind of the balance between this cancel culture idea, free expression, accountability, stuff like that.
Judge Jesse McClure: Yeah. America has a pretty robust culture of free expression. I think we're definitely much more so than Europe. Some of the big English soccer fans, like, if you sent a racist tweet -- let's say you're in England, you send a racist tweet to an English soccer player that you're mad at. Like, the police will come and arrest you.
Brian Beckcom: Will they really?
Judge Jesse McClure: Yeah. Like, a 12-year-old three weeks ago got arrested for sending a racist tweet.
Brian Beckcom: Wow. I had no idea. No idea.
Judge Jesse McClure: Yeah, no, they are not messing around when it comes to that sort of thing. Whereas in America, I mean, you would get piled on, obviously, and people would rightly tell you, like, “Hey, being a racist is not a great idea.”
Brian Beckcom: You and I would both agree, I think. You and I would both agree that if I want to send a racist tweet to Judge Jesse McClure, the government shouldn't be telling me I can’t do it.
Judge Jesse McClure: No. You should not be arrested for saying mean things to people.
Brian Beckcom: Even if the things are really, really bad. And even if there are things that a lot of us -- most of us would strongly disagree with. I would consider myself generally a free speech absolutist. Up to, like, the super extreme cases. But, to me, the more -- I want the Nazis and the racists talking. I want them to get their ideas out there because I will -- and all of us will be able to show how stupid they are. Right?
Judge Jesse McClure: Yeah.
Brian Beckcom: The more ideas, the better.
Judge Jesse McClure: Yeah. And I want to know who they are, quite frankly.
Brian Beckcom: Exactly.
Judge Jesse McClure: So I know to avoid you. Please put your Nazi bumper sticker on, so I will be sure that I don’t accidentally run into you.
And I agree that I think we need to have robust free expression and protection, you know? So, obviously there's two issues, right? So, obviously there's probably a greater consensus on, “Hey, the government shouldn't go arrest 12-year-olds for sending racist tweets.” I think most people would we agree on it, but obviously where it gets murky is, okay, well, let's say you say a racist thing on Twitter. And okay, we've decided we're not gonna arrest you, but what do we do?
What's hard is, obviously, there's so many anecdotes on both sides, and there's so many, you know, it's one of those arguments that's perfectly made for our social media age, because for every example of, “Hey, this white guy said this racist thing, and nothing happened to him,” there is an example of, “Hey, this Hispanic guy did this thing, and he got fired” or, “This Asian guy did this thing, and he got suspended,” or there's this white woman who's a quarter Pakistani and she did this thing.
So, there's all these little anecdotes, but I guess -- I definitely believe you have to be accountable for what you say. I mean, if you say something and you shouldn't have said it. Free expression is a two-way street. So, if you say, “Well, I want to be able to express myself freely.” Okay. There are obviously consequences to expressing yourself, and I certainly don't want to curtail people's counter-expression of your free expression.
I think where it gets dangerous is where we have these very murky -- where we have norms that haven't quite solidified that people get accused of violating. Where we have speech that maybe five years ago, nobody would have batted an eye up, but now it's, “That’s super racist,” or “That’s super this,” or, “You can't say that.”
Well, we don't have a norm. There sort of needs to be kind of a societal due process for these things. Like, “Hey, everyone knows you shouldn't say this, so don't say this.” We shouldn't sort of form these policies on the internet to go after people's jobs when what they said had nothing to do with their job. Like, if a guy who changes tires at Discount Tires says a borderline racist thing, like, do we want him fired, really? Like, he's the guy that changes your tires at Discount Tire. He doesn't have any discretion to do anything to your life.
This is gonna sound kind of weird, but like, racists need jobs, too. Like, do we want every racist unemployed? Is that going to make them less -- if a racist says something racist and he gets fired from Discount Tire, is that going to make him less racist ’cause he got fired from Discount Tires?
Brian Beckcom: Probably more racist.
Judge Jesse McClure: Or is he going to say, “You know what? Those no good people sure did get me, and now I know to hate them.” So, we just need to be careful.
Brian Beckcom: And guess what, folks? I'm here to tell you, and Jesse will confirm this. There's Black racists, too. There's Mexican racists.
Judge Jesse McClure: There’s all kinds, yeah.
Brian Beckcom: The people that are racist, it's not just a bunch of white people running around, although there's plenty of them. So to me, Jesse, the distinction here on the so-called cancel culture. And this is a debate or a discussion, I think, we should have as a society. For instance, I hire and fire people in my business. If one of my employees was racist, I would fire them because I have a certain way I want to run my businesses, it’s my business, and I have the right to decide who works at my company and who doesn't.
Twitter. Facebook. Some of the social media sites, what I'm having trouble working my way through is this: so, we've got a whole group of people that are claiming to be victims of a left-wing mob. Right? And there are people that have been kicked off Twitter for what looks like some things that could probably be classified as a little bit over the line racist.
But the question I have is, do you have a right to have a Twitter account? Do you have a right to have a social media account? Like, these are private companies. And so, the thing I think we're missing. And there's all these smart people. Sam Harris, Joe Rogan, the Weinstein brothers, that are talking about this a lot. Here's the question I would ask these guys, ’cause they're afraid to say this: is Twitter, Facebook -- should we treat those as public utilities? Or, are they private companies? Because you and I both know, if they're private companies, they get to decide who's on their platform. They can decide, “I don't want you to be on my platform if you like pancakes.” For any reason. Right?
So, I think we need to have a discussion as a society about whether we should treat some of these social media companies as purely private companies or as quasi-governmental companies or even as utilities. Right? Because if they're utilities, then a whole different set of legal principles applies to the situation, right?
Judge Jesse McClure: Well, and then you start, I mean, you want to talk about big government. We're going to have to have a cabinet-level Department of Social Media.
Brian Beckcom: Yeah, I know. Yeah. It's crazy. But I was thinking about this. I don't know if you saw this. Last week, I think, a bunch of very prominent -- they call them “blue checks” on Twitter. Prominent people got hacked. Right? And I was thinking about this. Fortunately, this didn't happen, but what if somebody, for instance, hacked Bob Barr or Donald Trump's account, and there was a tweet that came out that said, “I'm announcing I'm going to bomb North Korea in two days,” right?
That has consequences in the real world. And I think we just have -- I'm not a fan of government regulation of private industry. I'm with you. I favor a light touch. I think there should be rules, but we should basically set up the rules and then let the players play the game. Right? Let the players decide the outcome of the game. But this is one of those situations where the power of these social media companies has become so big that I think we legitimately have to ask ourselves, “Is this like the electricity grid? Is it like the phone companies used to be?”
I'm starting to lean in the direction that we may need some more rules on social media. And then we open up that whole can of worms, like what would those rules look like? Right. I mean, that's a whole nother discussion of that topic, but to me, this cancel culture thing is a really interesting discussion right now, especially when you look at, like, what's happening in Hong Kong with banning books and banning protests and stuff like that. I mean, that’s really the wrong way to go.
Judge Jesse McClure: No, and that's the thing. One of the dangers. I mean, we're so connected and across the world is, you know, it's sort of like if China decides, “Hey, these are the rules of social media if you operate in China,” China, in a way, is setting a policy for all of us. Or the other way around. If we decide, “The rules are this,” well, then we're kind of deciding for everyone.
Sort of like if California decides on a certain emission standard for cars, well, they're 11% of the population. They might be more than that percent of the market. So then they're kind of deciding for everyone else, too. And those are hard issues to work through.
Brian Beckcom: Same thing with, I don't know if you saw this. I think it was the California either legislatures or the court. They said, “Hey, we're going to start letting these college football players and these athletes” --
Judge Jesse McClure: Oh, yeah. No.
Brian Beckcom: Profit off their life, right? So, if the Pack 10 teams are doing that, and the SEC and the Big 12 aren't doing that, they got a huge advantage.
These are serious issues that I think we really, you know, and we could talk about this forever, and I know you don't have much more time, but, like, another example is, as somebody with a computer science degree and an interest in technology for a very long time, there's a saying in my little community that is if the product is free, you're the product.
Judge Jesse McClure: You’re the product, yeah.
Brian Beckcom: Right? And so, Facebook, Twitter, all these social media companies. Google. All of them, really, are collecting our data right now and using it to profit, and they're not paying us for it. And so there's another discussion I think we need to have about who owns our data. Like, do we own our own data, or by getting on a social media site, are we somehow consenting to letting them do whatever they want to do with our private information. Right?
Judge Jesse McClure: Well, and I'm sure you've had this conversation with your kids. “Dad, there's so many commercials on,” and you're like, “Well, that's why you're not paying for the show you’re watching.”. You can't have free TV and no commercials, so you gotta pick. Do you want free TV, or do you want no commercials?
Brian Beckcom: Exactly. Exactly.
Brian Beckcom: Well, Jesse, just a couple more questions before I let you go. And I've asked a lot of my guests this question, and I'd be curious to know your thoughts on this. So we're almost in August right now. You and I are both in Houston, which has been hit pretty hard recently by the virus. We've also got the protests. There's a lot of political instability right now. I think a lot of people are really anxious, mainly because we don't know a lot of answers to a lot of things. Like, we don't know what the future holds.
So, what are your thoughts on where we're headed in the next six, eight, 12 months, number one, and number two is what are your thoughts on, like, what are you telling your family? What are you telling your friends about the -- how are you coping with all the uncertainty, all the trauma, and all the kind of negativity going on?
Judge Jesse McClure: My Southern Baptist deacon answer is, well, you know, God is in control, and you have to trust his plan for these things. But, beyond that, I think we just have to be patient. Which stinks because I don't want to be patient, and I know my 10-year-old doesn't want to be patient. And we all want to have an answer, and we want to know, like, we place so much -- I don't think I'm in a minority, but, like, I’ve placed a lot of hope in man, if we could just get this vaccine. If we can just get to a vaccine, then everything will be puppies and rainbows.
Well, you know, a lot of the vaccine, you know, there's a reason why those guys go to school, and those women go to school for a million years to become the kind of scientists that can come up with those things. Those are not easy things to do. Those are not easy things to create. It may not work.
Brian Beckcom: And what, people -- I was actually reading a book on calculus a couple of months ago, just to kind of refresh my math chops. And there was a chapter in there about the AIDS vaccine or the HIV vaccine. And I didn't know this, but there is no HIV vaccine per se. What it is is a three-drug cocktail that they use differential equations to determine, like, the exact amount of each cocktail, depending on the symptoms. And so after reading some of this, my suspicion is we'll eventually get some sort of vaccine or some sort of intervention that'll be helpful. But if we get it next year, it'll be a world record. It took five years to get the HIV vaccine.
Now, we do have the entire world working on this. So, you would expect it to come a lot faster, but, anyway, you were talking about getting through this and what's your advice to people.
Judge Jesse McClure: Yeah. And my advice is just, you know, you can't have -- I mean, the road to getting back to normal, which is not going to look like this time last year, is we need to be smart. And not to sound like Dr. Fauci, but if you wear your mask and stay six feet from people and don't make unnecessary trips, I think that's going to serve us well.
And that's one of the things that's really hurt me personally during this virus is that I am a people, slap you on the back, shake your hand--
Brian Beckcom: Side hug, yeah. Big handshake. Me, too.
Judge Jesse McClure: And what's weird is I probably became a Judge at the right time because it's not really judicial to be doing that to people. So, I've kind of been inhibited anyway. But that's a tough, you know, it's hard not to have people come over to your house and have a barbecue.
You know, it's funny. I went to South Korea at the end of February. I feel like I basically got out of the country a week before they would have probably quarantined me. But I miss, you know, I love traveling. I love flying on airplanes. I love going places with my kids and hanging out with a bunch of people, and that's a really difficult -- it's really difficult that we can't do that, but it's not more difficult than being sick. It's not more difficult than having permanent scars on my lungs if I get it.
So, when I get down about it, I have to, you know, you sort of have to -- you have kids, and you have to sort of say, “Okay, it's not going to be good if I get sick. It's not gonna be good for me, and it's not gonna be good for my family. So, everybody just needs to be cool and do what needs to be done.”
Brian Beckcom: It’s one of those things, too, I think. It's very, very hard to get your mind on how fast exponential growth happens. It's also hard sometimes for people, including me, like in the school debate, for instance. I was listening to -- last night, I was getting kind of frustrated because there was a debate going on. They were talking about how kids generally are doing okay with the virus, which I think is probably true and which I thank God every day for. But that's not really the issue with school openings. It's giving it to the coaches, the parents, the teachers, stuff like that.
So, we really have to keep in mind that this is truly a situation where we're kind of in it all together, right? We've got to do this together.
Brian Beckcom: Well, Jesse. We've been going for almost an hour and a half right now. It's a half an hour more than I expected. We could probably talk for another couple of hours, but let me just say: you're the perfect kind of guest for this podcast because I have no doubt in my mind that as we go forward and as we look for leaders, people like you are going to be at the forefront of this.
I remember in law school, it must've been the second or third day of law school. The second we met, I was immediately thinking, “This is a great guy.” You've always been like that. You've been consistent throughout your entire adult life. Katie's the same way. I remember when my stepmom called me. “Hey. I met Katie and Jesse, what great people!” I'm like, “Yeah. Awesome.”
So, anyway, thank you--
Judge Jesse McClure: Well, thank you, Brian.
Brian Beckcom: For everything you've done. Thank you for your service as both the prosecutor with Tarrant County, with Harris County. For your work for the Department of Homeland Security. And now your work as a Judge. You're the kind of person that when I think about leaders and people in charge, you're exactly the kind of person that makes me feel very comfortable and very safe and very happy, frankly, that you're one of the leaders and I've supported you from the very beginning, and I will support you as long as you ask for it.
So, Jesse, thank you very, very much --
Judge Jesse McClure: Thank you.
Brian Beckcom: For coming on the podcast. Thank you for all your time. And please tell Katie we said hello and give the kids a kiss for us, okay?
Judge Jesse McClure: Alright, thank you.
Brian Beckcom: Alright, brother.
You've been listening to Lessons from Leaders with Brian Beckcom. If you've enjoyed this week's interview, be sure to subscribe, rate, and review this podcast and keep up with the latest episodes. You can also connect with Brian through his firm at VBAttorneys.com.