Prosecutors and Judges: How is this Possibly Okay?

 Posted on January 29, 2008 in Uncategorized

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered "after proper and timely notice to the Defendant", and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn't serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don't know who it is.


First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That's ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it's also a crime: tampering with governmental records. Look it up. On second thought, don't bother. It's Texas Penal Code Section 37.10(a)(1). It's a class A misdemeanor unless you intend to defraud or harm another (arguable - defrauding the court?), in which case it's a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you've committed a more serious crime. Call home and tell your mother; I'm sure she'll be very proud.)

I know that the Harris County District Attorney's Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA's duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA's office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin'. The public no longer holds the delusive belief that you can do no wrong; there's going to be a new DA a year from now, and there's a reasonable probability that it will be someone who doesn't approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the "little" crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you'll say. I'm not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that's proof that the rot spreads farther than just the sixth floor. It wasn't Chuck's job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that's not really appropriate, but it's going to happen however much I fuss - even if you don't care whether the state wins, you naturally want the state's inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you're making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don't think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn't know that the certificate of service was false. You took the prosecutor's word for it. Clearly, that doesn't work. But it doesn't matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor's certificate of service was false, and I would have had a chance to respond.

The times are a-changin' for the bench as well. The Harris County Criminal Lawyers' Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not - it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it's indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there's something else for you to consider: Dallas County. It is possible that Harris County's Republican judges, like Dallas County's, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not - the Dallasification of Harris County elections is purely speculative right now. But it's indisputably easier to run unopposed than to run opposed and win.

[Addendum: we eventually tried this case to a jury, and the jury acquitted my client.]

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