Letting the Imp Drive

 Posted on September 29, 2011 in Uncategorized

I am well-acquainted with the Imp of the Perverse. The Imp and I are buds. We've lived together for a long time, and I give him free rein from time to time. At his urging, I'll egg on the lawyer who is posting drunk to the listserv, or I'll suggest to my brother, in a car full of relatives from our parents' generation, that the elephant on his shirt means he's gay.

Just to, y'know, see what happens.

For entertainment purposes only.

But I also know when to restrain the Imp. When, for example, innocents might get hurt. Or, theoretically, when it might lose me my job. Sometimes before publishing something I'll run it by my trusted advisors (Jen, Scott, Troy, Brian), they will tell me not to be a fool, and I'll tell the Imp, "I'm sorry, but you lose."

This week Brian Wice wrote an op-ed piece for the Houston Chronicle about a prosecutor's post-verdict communications with the jury, which violated Rule 3.06-he told them about an inadmissible extraneous offense-and showed a want of class and grace.

Wice didn't name the prosecutor.

The prosecutor didn't consult with his trusted advisors. If he had, they would have advised him to restrain the Imp.

Prosecutorial violations of Rule 3.06 are a real and perennial problem among Harris County prosecutors. They did it under Holmes, they did it under Rosenthal, and they do it under Lykos. This prosecutor's response to Wice's criticism demonstrates why the problem persists:

I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else.

It isn't a prosecutor's "duty," after he's lost a case, "to explain the truth." Sometimes the rules forbid a lawyer's "explaining the truth" (because, for example, "the truth" is likely to influence a juror's actions in future jury service); when they do, the lawyer had better either keep "the truth" to himself or be prepared to proudly accept the consequences.

(That's Bennett's Law of Rules: if you are not prepared to proudly accept the consequences, you are not justified in breaking the rule.)

So this prosecutor could have kept his mouth shut in public, taken Wice's reprimand like a big boy, and moved along with his life. He could have called Wice up on the phone and said, "Brian, WTF?" He could have blown it off and moved on to the next bad guy. If he needed to vent, he could even have vented anonymously on the article, pretending that anyone cares what an anonymous prosecutor has to say. Instead he let the Imp of the Perverse drive: he sat down at his computer (at 11:47 at night) and dashed off a public comment in which he called Wice names, rationalized his conduct, and concluded:

I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.

Prosecutors need friends too, to keep them from doing stupid stuff like this. I can't imagine that this comment was well-received in the Sixth Floor administrative suite. D.A. Pat Lykos does not like unauthorized people speaking for the DA's Office. That's Donna Hawkins's job. And while Lykos might have been able to overlook the prosecutor's conduct, there's no way she could overlook this public comment.

I'm a big believer in the power of public disclosure of wrongdoing, rather than ineffectual bar discipline proceedings. But Wice wasn't naming and shaming. If the prosecutor hadn't commented on the post, nobody would know a year from now about his violation of the rules. But he connected his own name with his own conduct when he didn't need to. Anyone sober with his best interests at heart and some knowledge of social media would have advised him to shut the imp up and at least sleep on it. The story hasn't gotten much play in the blogosphere, but it's gotten some.

Now-because of his DR violation? because of his Chronicle comment?-this prosecutor has been suspended for a week and moved to the intake division of the DA's Office for six months.

How will his conduct stack up under Bennett's Law of Rules? Will he take the punishment as a badge of honor, "proud to fight for what is right," or will he take his marbles and go home?

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