Reprise: Prosecutors and Judges: How is this Possibly Okay?


I recently discovered a Motion to Hold Without Bond and an order thereon in the prosecutor’s file in a case I was handling. Discovered, despite the certificate of service claiming that the motion had been hand delivered to me 13 days before. (The parties involved will remain nameless, but only because I like them personally.)

The order signed by the judge said that “after hearing and considering the evidence presented”, bail had been denied. But there had been no hearing and no evidence presented, and the motion contained untrue allegations that would not have held up to even the lightest scrutiny and would not’t have justified denial of bail even if they had. (Short version: the motion alleged that the defendant was under indictment in Cause No. N when he committed the offense in Cause No. N, a legal impossibility.) So we know that the judge signed an order without reading it or the attached motion.

According to the Texas Constitution, an accused can’t be denied bail without a hearing. A “hearing” in this context means an actual hearing, with notice, actual witnesses, evidence presented under the rules, and confrontation. (Having read that, you now know something about the denial of bail in Texas that 90% of prosecutors, defense lawyers, and judges do not know. Congratulations.)

We know, since there is no filestamp on the documents and since I discovered them in the State’s file, that the State handed the documents directly to the judge, who signed them and handed them directly back.

We also know that the judge did this on the same day that the motion was purportedly hand-delivered to me, without giving me an opportunity to respond on my client’s behalf.

So we know that the denial of bail was a violation of the Texas Constitution.

The certificate of service is false. The document was never delivered to me. The prosecutor’s justification, when I confronted him with it? “I called you about it.”

He hadn’t; if he had I would have pointed out that denial of bail was not permitted in the situation. If he had delivered a copy of his trainwreck of a motion to me, by hand-delivery or any other method, I would have pointed out to him and the court that the motion was incorrect, that it did not justify denial of bail, and that nothing else justified denial of bail.

Noting 13 months ago that filing a document with a fictitious certificate of service is a crime and ex parteing a judge is an ethical violation doesn’t seem to have done much good. So how about this approach:

The procedural rules are there for reasons.

There’s a good reason for the rule that you serve a copy of a motion on the other side before asking the judge to rule on it: so that the other side has a chance to respond.

There’s a good reason for the rule that the other side has to have an opportunity to respond: so that the judge doesn’t enter an illegal or unfair order without giving someone a chance to tell him that he’s about to do so.

There’s a good reason for the rule that if you include a certificate of service (the criminal rules don’t require it), the certificate of service must be truthful: so that the judge knows whether your adversary has had an opportunity to respond.

There’s a good reason for the rule that one side doesn’t have ex parte contact with the judge: so that (among other reasons) the judge doesn’t get buffaloed into signing unlawful or unjust orders.

If there were a rule requiring judges to read orders before signing them, there would be a good reason for that too.

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0 responses to “Reprise: Prosecutors and Judges: How is this Possibly Okay?”

  1. I would say it was unbelievable, but it isn’t, particularly in Harris County, which has a farce of a judicial system. About on par with third world nations, where the application of constitutions and laws (and truth) mean less than who is asking and who will benefit.

  2. Hopefully you can use your personal relationship to reform your friends’ behaviors.

    Do these folks honestly look themselves in the mirror when they go to bed at night?

    • The prosecutor and I had a full and productive discussion of the matter. I’m convinced that there was no malice involved, but only overwork, negligence, and the HCDAO’s failure to provide its lawyers with adequate ethical training.

      Criminal defense lawyers in other counties have been indicted for less.

  3. So, you’re going to take your own advice of a few posts ago and report the ethical violation, right? On the prosecutor and the judge?

    You liking them has nothing to do with what they did to your client.

    • No, I’m not going to. There was no harm to my client, and I don’t see that as something worth getting a perfectly reasonable prosecutor fired by his mercurial boss over.

      We do have a rat rule. Feel free to grieve me for not grieving the prosecutor or the judge.

  4. It seems like the defense bar only has 3 options for these situations. Grieve, blog about it (what most blogging attorneys do) or nothing (what most non blogging attorneys do). We need more choices.

    How about if the State ex partes the judge the defendant automatically gets deferred probation? Or the state loses 3 juror strikes and their opening statement?

    • I like it. How about for every time the State ex partes a judge the defense gets a transferable pass good for a sanction against the state in a case involving that prosecutor, so that even if the misconduct didn’t harm that particular defendant, it might affect one of that prosecutor’s other cases.

      If I were a prosecutor, I would rather get grieved (quiet, confidential proceeding including procedural safeguards and most likely [given the predilections of the State Bar] ending in no sanction or a private reprimand) than get called by name in the blawgosphere (a totally non-confidential summary proceeding most likely resulting in an immediate [and possibly permanent] bad reputation on the internet).

  5. Well, that’s somewhat cowardly. Just a few days ago you thumped your chest and said that prosecutors should look out for grievances in situations of misconduct.

    Sorry to see that your money and your mouth are in two completely different places.

    /not expecting this to make your thin-skin filter

  6. Mark,

    Thanks for the thoughtful (though somewhat discouraging) post. Despite the obvious negligence on the part of the prosecutor in this case, your approach makes sense to me, particularly if it did not cause harm to your client (and I trust that, as you say, it did not).

    If you and the prosecutor had a productive discussion, and if he or she makes a good faith effort to adhere to ethical guidelines in the future, the net result for defendants in your area may well be positive.

    That said, it would be nice if it were possible to introduce this kind of negligence or misconduct at trial, as evidence of the prosecutor’s ineptitude. (“Ladies and gentlemen of the jury, it should be noted that the prosecutor in this case has acted negligently or unethically. These actions, though they have not directly harmed my client, should be cause for suspicion. As the prosecutor has already behaved unethically or negligently in this case, it is reasonable to believe that he or she might do so again. For this reason, it makes sense to give additional consideration to any evidence he presents.”)

    Doubt this would ever happen, but I believe it would be an appropriate remedy. If that happens to a prosecutor once, chances are it will never happen again.

  7. Mark,

    From a bystander’s view (mine), the answer to you original question of How this can happen… It seems to ‘just does’.

    I am not surprised for a moment with how this went down. Judge and DA are USED to being able to do what they want.. You just happened to catch them this time..

  8. I’ve had numerous instances of coming to court and finding motions “granted” off-docket before I’d even received them. I’ve always thought that these ex-parte issues deserved grievances, but haven’t filed one yet because I couldn’t prove that there was any verbal discussion, or that the motion hadn’t been at least mailed to me before it was granted.

    However, after reading this, I might start being a bit more pro-active on these iissues. I’m thinking of a routine motion to prevent ex parte problems, i.e., that no motions shall be ruled on without both sides being present, or something like that.

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