Ignorant or Arrogant?

There are many reasons people commit crimes: addiction, anger, avarice, arrogance, fear, ignorance, and disease, to name just a few. Typically more than one reason can be identified for the commission of a particular crime. Addiction and avarice, for example, or ignorance and fear.

Arrogance can cause crime if a person know that the rules apply to him but, for some reason, thinks they should not. Ignorance can contribute if the person doesn’t know the rules, or doesn’t know that they apply to him. Ignorance of the law is, axiomatically, no defense for anyone.

I wrote six weeks ago about a prosecutor filing documents with a trial court with fictitious certificates of service. Such filings violate Texas Penal Code Section 37.10(a)(1), which proscribes “knowingly mak[ing] a false entry in, or false alteration of, a governmental record.”

Section 37.10, the “tampering with governmental records” statute, is a classic arrogance-or-ignorance crime. When the law is violated, it’s usually either because the actor didn’t know that tampering with governmental records is a crime, or because the actor didn’t think the rule should apply to him.

Another subsection of section 37.10 provides that a person commits a crime if he “makes, presents, or uses a governmental record with knowledge of its falsity.” Which brings us to the crime du jour.

This is a bench warrant. A bench warrant is the Texas state court equivalent of a writ of habeas corpus ad prosequendum or ad testificandum. It serves to bring a person who is in one person’s custody to another person’s custody to be a defendant or a witness. For example, a witness can be “bench warranted” from one county jail to another, or from the Texas Department of Criminal Justice’s Institutional Division (TDCJ-ID, that is, prison) to a county jail. A bench warrant is a government document (just about anything that passes through the government’s hands is a government document).

In this instance, you can see that the judge of the 339th District Court ordered Michael Gene David delivered from TDCJ-ID’s Michael Unit in Anderson County, Texas to Harris County Jail to serve as a witness in two cases filed against Paul Davila.

The problem, though, is that Mr. David was not “a witness or defendant” in either of Mr. Davila’s cases. It’s safe to say that he knew nothing about Mr. Davila’s cases. In fact, he wasn’t a witness or defendant in any case in the 339th District Court. Mr. Davila was brought from TDCJ by a prosecutor who thought he might be a witness in David Mark Temple’s case in the 178th District Court. The lawyer wanted to talk to Mr. David, but didn’t want to go to the trouble of driving three hours to Anderson County to do so. The bench warrant was false, and the lawyer who caused it to be made (see the law of parties) and used it to get Mr. David to Houston knew that it was false.

So what can the lawyer responsible for this violation of section 37.10 expect when the Harris County DA’s Office discovers the falsity?

Indictment for a felony? Tampering is a felony if it is done with the intent to defraud or harm another. The DA’s office is able to find the intent to defraud or harm another in an undocumented worker’s use of a forged social security card, so the fraud/harm element shouldn’t be much of a hurdle, especially since the fraudulent bench warrant in this case appears to have been used to keep the lawyer on the other side of the case from finding out about the witness. The lawyer responsible for that false bench warrant would get indicted, right?

Nope. No indictment.

Well, then, that lawyer can expect to be prosecuted for a misdemeanor? I mean, if the lawyer knowingly caused a false bench warrant to be signed, a misdemeanor prosecution is a slam-dunk, right? The DA’s office would certainly file those charges.

Nope. No misdemeanor charges.

Bar discipline, then? The level of proof required for a bar grievance is not proof beyond a reasonable doubt, and tampering with a government document is the sort of thing for which a lawyer might well get his license pulled. So this lawyer might expect to be disciplined by the State Bar for knowingly using a false bench warrant?

Nope. No bar discipline.

Not a darn thing. Well, why not? Because the lawyer in question is Harris County DA candidate Kelly Siegler and, as Kelly explains, “We do it like that every day.” “We do it like that every day” is no defense to any sort of criminal charges.

Harris County prosecutors might well do it like that every day, but we don’t. While a defense lawyer can ask for a bench warrant just as easily as a prosecutor can, I’ve never even heard of a criminal-defense lawyer using a bench warrant in an unrelated case to secure a witness’s presence in Harris County. What we do when we want to talk to an imprisoned witness is either secure a bench warrant in the case in which the person is actually a witness or, if we don’t want to tip our adversary off, we travel to the prison to visit the witness. A defense lawyer would have to be near brain-dead to arrange for a witness to be brought back to Harris County on false pretenses.

When Kelly says that it’s okay to cause a judge to sign a document that she knows is false because “we do it like that every day,” is she demonstrating ignorance or arrogance? Taking into account the fact that Kelly maintains her “we do it like that every day” rationalization even after article 37.10’s provisions are pointed out to her, as well as the HCDAO’s cavalier attitude toward other governmental documents (exemplified by the fictitious certificate of service episode and the use of fake subpoenas to summon witnesses to court), I vote for arrogance over ignorance. It’s not, in other words, that she didn’t know what the law is, but that she didn’t really care. When you work for the agency that decides who gets charged and who doesn’t, you don’t have to play by the same rules as everyone else.

0 responses to “Ignorant or Arrogant?”

  1. If I recall correctly, Mr. Dick DeGuerin, Esquire (notice I didn’t use any nicknames) and Mr. Shawn Buckley did, in fact, file a greivance on Kelly for doing this. They also filed on Kelly for practicing under the name of Siegler, since she was licensed under the name of Jalufka (her maiden name). The greivance was dismissed by the State Bar.

    Now, it would seem to me that those who uphold the ideal of “innocent until proven guilty” would not be so willing to cast that ideal to the curb just because the person in question is a prosecutor. Especially when the tribunal that would judge it already has done so, and done so in Kelly’s favor.

  2. When true believers are busy doing God’s work, the end always justifies the means. What a great example of how and how often in the content of this blog.

  3. AHCL,

    When you say “the tribunal that would judge it”, you mean the Harris County DA’s Office, right? Because last I checked that was the agency with responsibility for prosecuting tampering cases in Harris County; as far as I know the State Bar doesn’t decide when a lawyer should be charged with a crime.

    If Kelly was in fact unsuccessfully grieved, then that might well be evidence in favor of the theory that the big-firm lawyers on the grievance committees wouldn’t know ethics in a criminal case if they stepped in them and that, as we suspected, it’s near-impossible to successfully grieve a prosecutor even for the clearest of misconduct. (Hey, maybe they really are above the law!*)

    I don’t think the facts on this one are actually in dispute; tell me if you disagree:

    The bench warrant is false;
    Kelly caused the bench warrant to issue and used it to get Mr. David to Harris County;
    Kelly knew that the bench warrant was false;
    This is the way prosecutors have always done it.

    Defense lawyers in Texas have been prosecuted for less. Just ask the Collin County bar.

    So will Kelly promise that if she is elected every defense lawyer in Harris County will get one free pass for tampering? Not that I’d take advantage of it, but I’m sure some would.

    * Unless, of course, their crimes make the paper and the voters get upset.

  4. Okay, so let me get this straight, if Kelly was unsuccesfully grieved then it means that “the big-firm lawyers on the grievance committees wouldn‚Äôt know ethics in a criminal case if they stepped in them”. It couldn’t ever possibly because that they did look at it and decide that there was no merit to it.

    The key term here is the “intent to defraud”, now isn’t it? Those who tamper with social security cards are defrauding the IRS, their employers, and perhaps the real holders of the Social Security Numbers. You gloss over this portion of the argument by analogizing it and then stating that shouldn’t be too much of a “hurdle”.

    Kelly wasn’t trying to hide that witness from Dick. Dick already knew about the witness, if I recall correctly (he may have even given the witness’ name to Kelly).

    Look, was it a bad way to bring back a witness? Yeah. Kelly should have just driven down to Huntsville and interviewed the witness. But I think you are laying it on a little thick when you suggest it was an indictable offense.

  5. MARK,

    Are you saying this guy was a witness in one case but brought back as a named witness in another case? Or are you saying that the guy was never a witness in any case? Did Dick know that he was a potential witness? Would it have been OK if the right court name and case number was on it?

  6. AHCL,

    I don’t know anything about any grievance. Such things are apparently confidential. You don’t seriously want people to think that a grievance committee’s refusal to act on a grievance means that the person grieved didn’t break the law, do you?

    Intent to defraud would make it a felony. I’ve seen plenty of people indicted for tampering where there is truly no intent to defraud or harm (“defraud” is a term of art; it doesn’t just mean “fool”).

    But without the intent to defraud, it’s still a class A misdemeanor, and one for which a defense lawyer would lose his license in a heartbeat.

    Jigmeister, Kelly apparently had reason to think that Mr. David might be a witness in the Temple case. it would not have been tampering if there had been a bench warrant issued for Mr. David in that case.

  7. Dude, if I could file a grievance for convoluted posts, this would be complaint #1. Love your blog and learn a lot from the discussion, but this seems like a blind shot at Siegler that I couldn’t logically follow if I was using a Little Orphan Annie Decoder ring. Think I’ll stick with my girl.

    Btw, ever listen to Outlaw Nation on 950AM wknds? Some decent nuts&bolts stuff for your regular clientelle. The bailbondsman they had on this time who will not be named seemed to be giving outstandingly bad advice. That’s called recruitment!

  8. So she had a right to the witness, but didn’t do it right in getting him there. I.E., the cordinator for that court was gone when Kelly tried to get the witness back, so she called another cordinator and that person issued a bench warrant assigning whatever number he/she wanted to. Bad policy, but happens all the time. Kelly didn’t tamper with any document.

    Minor point since she undoubdtedly precipated the problem. It shouldn’t happen, but does every day by both sides in serious cases, though Mark, I am not insinuating that you have ever done that.

  9. SCR — Try making your window bigger?

    jigmeister, that’s an argument in favor of her conduct being charged a misdemeanor (no intent to defraud or harm) rather than a felony . . . though nobody with any sense would be surprised to be (over)charged with a felony by the Harris County DA’s Office for causing a false bench warrant to issue.

    I would be extremely surprised if you could point to an instance of experienced defense counsel getting a bench warrant in a case other than the one in which the person is actually a potential witness. When I need a bench warrant, if the coordinator for that court is gone I wait till I can reach her. (For those not familiar with the system, court coordinators are court officials who are generally in the courthouse and available every day.)

    A better argument might be that Kelly didn’t know that a bench warrant would say that Mr. David was a witness. Not a good argument, but a better argument. Also, not one she has made. Instead Kelly has declared, without a hint of regret, that that’s the way we always do it.

    It seems to me that there is a split here between people who are afraid they might be looking for work if Kelly doesn’t beat Pat in the runoff, and people who aren’t.

    IJ and Kevin, sorry for the slow post approval. Your posts got lost in the shuffle.

    IJ, I get that you disagree with me, but convoluted? Do I need to do a rewrite?

Leave a Reply

Your email address will not be published.