Save it for Court


Motive remains a mystery in gay Katy teen’s death:

After giving conflicting stories, Banks confessed Monday that he shot Vogt to steal his car, said Harris County prosecutor Connie Spence.

Texas Disciplinary Rule of Professional Conduct 3.07:

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:

. . .

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that persons refusal or failure to make a statement;

. . . .

(Thanks to alert reader Jack for catching this.)

I’ve been griping for years, more or less quietly, about the Harris County DA’s cavalier attitude toward Rule 3.07. Pat McCann even met with the DA’s General Counsel a year or so ago to discuss what could be done about prosecutors prejudicing potential jurors in pending cases. When it was pointed out that defense lawyers violate the rule as well, we educated our membership about the rules; since then, I think the defense bar have done a good job of resisting the temptation to try our cases in the media.

I’m not saying that heads should roll or that anyone should publicly be called incompetent, but maybe it’s time for the DA’s leadership to have that little talk with its own lawyers, especially since they are, according to TDRPC 3.09, required to try to keep line lawyers from violating Rule 3.07:

The prosecutor in a criminal case shall:
. . . .
(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

(Yes, I know about 3.09(c); it is highly unlikely that 3.09(c) would trump 3.09(b), especially for the party that controls what goes into the public record. It shouldn’t.)


0 responses to “Save it for Court”

  1. Mark, while the rules you mention take precedence, of course, it is also worth pointing out that the District Attorney Operations Manual used under Vance/Holmes/Rosenthal prohibits commenting on the content of defendant statements, as well. –That is, if that Operations Manual is even still in effect, a matter of considerable debate among current office employees!

  2. “I think the defense bar have done a good job of resisting the temptation to try our cases in the media.”

    “Houston lawyer Tyler Flood, who is defending three men accused by Wick, said the two cases demonstrate a lack of oversight of breath testing.

    “There’s no integrity in the breath-testing program,” Flood said. “We’ve seen it with Dee Wallace, and now were seeing it with HPD. In my opinion, every case that officer Wick is involved in, none of his testimony should be allowed. And any cases that he was involved should be thrown out.”

    Do blanket statements such as this one count?

    http://www.chron.com/disp/story.mpl/metropolitan/6363727.html

    • A fair question.

      While I don’t agree with Tyler’s prescription, I would say that his statements don’t have a substantial effect of prejudicing an adjudicatory proceeding. If Tyler had said, “Wick arrested Mr. X for DWI, and since Wick is crooked Mr. X’s case should be tossed out” my opinion would be different.

  3. I always question just how much the legal profession needs to police itself. Technically, I suppose as members of the legal profession we should report this to the State Bar. Having said that, I’ll admit that I’ve never turned anyone into the State Bar even when I’ve seen pretty clear ethical violations.

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