Thanks, Snake

 Posted on July 09, 2010 in Uncategorized

"Watch this, Mark. I'm going to lie to the judge just to show you that I can."

That's not exactly what she said.

This morning The Snake was seeking a delay of the trial (set next Monday) of a case in which she's prosecuting a client of mine. This was her second motion for a continuance, but it didn't even come close to complying with the law for a first motion for continuance, much less the stricter requirements for the State's second motion for continuance. The court could be expected to grant the continuance as a matter of course, but my client wants his day in court, so I was bound to object.

It's not the stuff of high drama, I know. Lawyers approach judge, prosecutor wants delay, defense objects, judge grants delay. It happens every day.

The Snake had claimed in her motion that witnesses had travel plans, but hadn't named the witnesses. I pointed this out to the judge, and the judge asked The Snake why she needed her continuance. The Snake changed tacks and blamed me-by requesting notice of other acts that she intends to introduce at trial, I had somehow forced her to ask for a continuance.

Never mind that a request for notice is an everyday pleading, designed only to trigger responsibilities that every competent prosecutor knows exist. Never mind that the court had ordered her months ago to give me notice. Never mind that she had already given me notice. The Snake wanted a delay, and instead of telling the truth (whatever that is) she wanted an excuse.

There are two possible explanations for The Snake's conduct. One is that The Snake really believed that my request for notice triggered some unusual duty that created more last-minute work for her. I reject that possibility-it would make her not only ignorant but also careless, and, considering that she's been a prosecutor for more than 20 years, won plenty of cases, and survived regime change in the DA's Office, I don't think she's either. I'm not saying she's a rocket scientist, but she's not a buffoon.

The other, more likely, possibility is this: she's willing to say whatever she thinks she needs to say, regardless of the truth of the matter, to get her way even in the smallest of matters. This seems like the more likely explanation, considering her successful career at the Harris County District Attorney's office. I don't believe most prosecutors think it's okay to lie-to a defense lawyer, to a judge, to a jury-but some do, and I've never seen any hint that the Office somehow weeds out those prosecutors. In fact, I have seen more than one prosecutor, now in a management position whom I have seen telling barefaced lies to judges.

That The Snake is malevolent rather than negligent is supported by consensus among the Brethren of the Court; it's also the smarter strategic explanation. If I were to assume that she were just sloppy, I might treat her that way in trial, which would be a grave mistake if I were wrong. By treating her as dishonest, I lose nothing but the chance to be invited over to her place for barbecue on Labor Day.

The Snake was going to get what she wanted today. She didn't need to make up a story. By doing so she gave me a tremendous gift: she showed me that the truth doesn't matter to her. It won't surprise me when she lies to the jury about something that matters-I'll be watching for it-and when I catch her doing it, if I can show the jury, her credibility will be right where it should be, and her case along with it.