Based on Actual Facts


Suppose that you were a prosecutor prosecuting a first-time DWI case, and that I was defending it.

Suppose further that the accused’s husband, an ex-cop, watched her performing the field sobriety tests at the scene, and would testify that she did fine. That the arresting officer claimed that his in-car video camera wasn’t working. That the shop records for the car didn’t show any video camera repairs till five months later. That the station video officer expressed doubt on the station video about whether the arresting officer’s in-car video was in fact not working. That the accused looked and sounded stone-cold sober on the station video.

Suppose, in other words, that the case was a dog for the State.

Suppose also that, according to the offense report, I had appeared at the scene of the DWI arrest and observed his investigation.

Not having an actual case to prosecute and facing almost certain defeat in trial, you might try to bluff me into taking a plea.

Suppose that that didn’t work. You might want to get me of the case, so that my client might be forced to spend more money to hire another lawyer who might be more bluffable. It’s understandable. But how?

You might have some murky memory from law school (hey, it was last year, and that’s a long time) that I could be disqualified from representing my client because I was a fact witness in the case.

This being a special occasion, and despite being a prosecutor, you would probably do a little legal research. First you’d look at the Texas Disciplinary Rules of Professional Conduct and find Rule 3.08:

A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client . . . .

You wouldn’t find that particularly helpful, since you’ve had no inkling that I am or may be a witness necessary to establish an essential fact on behalf of my client.

So you’d read on in the rule:

A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure.

You’d probably think about subpoenaing me to testify; shame on you. Calling opposing counsel of record as a witness seriously disrupts the counsel’s functioning as an advocate and may create a false impression that the advocate was improperly involved in the underlying issues in the litigation. (That’s In re Baptist Hospitals of Southeast Texas.) You don’t have any reason to think that I could furnish any testimony adverse to my client, and the party seeking disqualification cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness. (That’s In re Guerra.)

Besides which, since anything that I learned in the course of my representation of my client (which began before I arrived on the scene) was my work product, you couldn’t compel me to to talk about it, and in fact I couldn’t legally reveal any of it without my client’s consent.

Having failed to find any basis for disqualification in the Disciplinary Rules, you might look at caselaw to see if there’s any help to be found to get me off the case. You would find that DR 3.08 articulates considerations relevant to disqualification (that’s Anderson Producing, Inc. v. Koch Oil Co.). Then you’d run into In re Sanders, which says that the fact that a lawyer serves as both an advocate and a witness does not itself compel disqualification, and In re Chu, which says that you must present evidence that the testimony of the lawyer is necessary and that it goes to an essential element of my client’s case.

What would you have? A big steaming bag of nothing, that’s what. But you might take a shot at it anyway, on the theory that “the judge isn’t going to know what the law is” [actual quote from junior prosecutor in Harris County Criminal Court at Law Number One!]. Supposing that you were right and that I could not explain the law to the judge, and supposing that he disqualified me, what then?

The Court of Appeals is probably going to “know what the law is”, and mandamus lies from an erroneous disqualification of counsel. So that’d be one option.

Or my client could try the case pro se under protest (with my help in preserving the error). On this dog, she’d probably beat you. And if she didn’t, there’s no harm analysis for the violation of an accused’s Sixth Amendment right to counsel of his or her choice (that’s U.S. v. Gonzalez-Lopez).

Either way, my client gets a trial with me as counsel. So let’s just agree now that I’m trying the case, that it’s a dog, and that my client is almost certain to be acquitted.

[Edit: ultimately the State saw my point, dismissing the case on the morning of trial.]

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0 responses to “Based on Actual Facts”

  1. I believe that before the prosecution could have you removed as the attorney in the case they would have to show that you are a material witness, ie. that you are the only one that could offer the testimony. In your fact scenario it appears that the ex-husband would be able to offer the same testimony that you would which would negate you being a material witness. It also appears that there would be other fact witnesses that would be able to produce the testimony, the officer at the station, the individual from the repair shop.

  2. Brent, I believe you’re right.

    But he’s the husband, not the ex-husband. So I don’t think he could be compelled to testify any more than I could. It might be a mistake for the State to try to call either of us to the stand.

  3. Mark, save me a long distance phone call tomorrow. Who’s the theoretical junior prosecutor in Harris County County Court at Law who’s putting you through all this crap?

    The reason I ask is that for some reason, we never get to hear the names of all the squalid piles of crap masquerading as prosecutors in Texas. The ones in Bastrop, for example, who tried Rodney Reed for the capital murder of Stacy Stites without ever investigating whether her fiance, Jimmy Fennell did it. Or the Harris County prosecutors who argued, with a state face, that a defendant with a sleeping lawyer got a fair murder trial.

    So, do us a favor. Who’s the guy that should be broadcasting sports on the Houston Fox affiliate?

  4. Michael, it’s not really the junior prosecutor’s fault. If she had authority to dump a DWI case, I could’ve persuaded her to dump it. But she’s an innocent, still a nice person in an institutional culture that tries its best to turn nice people (especially female nice people) into raging bitches, because “raging bitch” is the culture’s imitation of strength. I am not making this up; I couldn’t.

    Marc Brown, the chief of the misdemeanor division, and Alan Curry, the chief of the appellate division, are reportedly the ones who think they can and should get me off the case, which should be dumped.

  5. If it were the case that the State could kick a defense attorney off a case for observing part of the police investigation, would they not be able to kick the defense attorney off a case in which he attended a police interrogation or interview of his client during which his client made any statements? What distinguishes them?

  6. Exactly. We’re often witnesses to facts in the case (“what happened?”), but only in the State’s dreams could we give up our secrets.

    It’s a frivolous little idea, but one that I feel should be nipped firmly in the bud.

  7. At one time, that was my case, and while it wasn’t a great case, it wasn’t a dog either. It was a series of questionable, if not bad, behavior my the ex cop, and the attorney in question as weel, as I recall. Sometimes we go too far out on a limb for our friends, I think.

  8. I wouldn’t be much of a friend if I didn’t go out on limbs for my friends . . . not that that would be relevant to my client’s case.

    Of course (as I knew) HPD DWI cops generally have in-car video, which faithfully record events at the scene of a DWI stop.

    But, in the words of the station video officer,

    “I’ve been told that it wasn’t working, so . . . [shrugs] I don’t know.”

  9. It is admirable to go out on a limb for your friends–I would do the same thing, even though I am a squalid piles of crap masquerading as prosecutor.

    The case may not be one that can be won, but that doesn’t necessarily mean it shouldn’t be tried. If you should get an acquital, you likely will.

  10. I agree. Sometimes we have to try bad cases; there’s always a chance of the unexpected happening. And DWI cases carry their own special political baggage, which makes them more difficult to resolve without trial.

  11. Why should a criminal defendant have to pay an attorney’s fee to defend a frivolous criminal case? Too bad y’all don’t have TRCP Rule 13 — or that the DJ’s in Harris County wouldn’t enforce it if you did.

  12. Oh I know Mark–I have seen this exact article in fact. Coming from a civil background however, I always laugh at the very term “frivolous.” It’s usually a term that means “I don’t want to pay for the injuries I have caused.” It’s rarely used in the criminal system, from my limited experience. I prefer “bad faith.”

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