Your Witness... No, Not Literally

 Posted on November 10, 2009 in Uncategorized

After the shot across his bows, the Harris County DA fires a broadside at Judge Reagan Cartwright Helm, asking him to recuse himself from all cases involving accusations of domestic violence (Brian Rogers, Chronicle).

If Judge Helm recuses himself in response to these motions, or if Administrative Judge Olen Underwood recuses him, it might be the right result (friends of Judge Helm, with his best interests at heart, approached him several months ago to suggest that it was time for him to step down) but it will be for the wrong reason.

"It's something we've thought about of a long period of time - because we have to show a continuing course of conduct," [Family Violence Division Chief Prosecutor Jane] Waters said. "It reached a point that we didn't think it was fair to the victims of domestic violence."

In the case of State v. Defendant, the complainant (whom the State always calls the "victim," even when she is lying) is not a party. She is just a witness. And while judges should treat witnesses, like everyone else, with dignity and respect, a witness doesn't have any standing to ask that the judge be recused.Jane Waters's mindset-that a witness somehow has some stake in the litigation, some interest to be protected with a motion to recuse the judge-is not aberrant. First Assistant District Attorney Jim Leitner, who, because of his defense experience, knows better, refers to survivors of the victims of capital murder as "his witnesses."

I had a young prosecutor call me the other day to say that "her complainant" had called her to ask her to tell me to tell my investigator not to try to contact her anymore. The complainant was laboring under the twin misconceptions: a) that my investigator was not permitted to contact her; and b) that it was the prosecutor's job to protect her from unwelcome questions. The young prosecutor gave no signal that she didn't share the complainant's misconceptions, much less that she disabused the complainant of these notions. (That might make for great testimony at trial.)

When a prosecutor treats a witness as the client, he may act unethically: a lawyer must abide by his client's decisions concerning the objectives and general methods of representation as well as whether to settle a matter; often the witness's interests are (whether the prosecutor knows it or not) materially and directly adverse to the interests of the prosecutor's client, the State, because the witness is lying. Fortunately for the prosecutor, the client is never going to complain to the State Bar about the prosecutor's conflict of interest.

But more important than the conflict of interest rules, prosecutors need to be guided by their special duty to seek justice. Prosecutors don't represent complainants for the same reason that criminal-defense lawyers are not charged with seeking justice: it's difficult enough to know what justice is when a lawyer remains objective; it's damn near impossible when the lawyer identifies with one of the human beings involved in the litigation.