And The Trail Has Its Own Stern Code


In the criminal courthouse, lawyers generally keep their word. Unlike our colleagues in the civil courthouse (which still smells of cat pee), we don’t need Rule 11. We write things down not because we might otherwise change our mind, but because we might otherwise forget. If I tell an adversary that I’m going to do something, I do it; I expect the same from my adversaries.

A prosecutor who lies or doesn’t keep his word will quickly (in a matter of minutes, thanks to the marvels of modern technology) develop a reputation for dishonesty in the criminal defense bar. (I suspect that the same is true of dishonest defense lawyers and the DA’s Office.)

So what happens when one prosecutor says he’ll do something, and another prosecutor in the same office blocks him from doing it?

Prosecutor A, a #2 prosecutor with four years’ prosecutorial experience, tells the accused that he’s going (with good reason) to dismiss his case. “You don’t have to come back to court,” he says. The accused leaves. Prosecutor A starts writing up the motion to dismiss, and tells his immediate supervisor, Prosecutor B, with three years’ experience, says, “oh, no you don’t.”

Keeping promises has two components: not saying you’ll do things that you aren’t able to do, no matter how much you want to; and doing what you’ve said you would do, no matter how much you don’t want to.

Prosecutor A promised to do something that the Harris County DA’s Office was able to do, though he didn’t know that he would be denied the authority to do it himself.

Prosecutor B refused to do something that the Harris County DA’s Office had promised to do, though he didn’t make the promise himself.

So if you look at the promise as coming from the DA’s Office, Prosecutor B was wrong (for blocking what was promised). If you look at the promise as coming from the individual prosecutor, Prosecutor A was wrong (for promising something he couldn’t deliver).

Which is it?

On the one hand, Assistant DAs act on behalf of their boss, the elected DA. So their promises are imputable to the DA, and Prosecutor B was wrong to stop Prosecutor A doing what he had promised to do (and could legally and ethically do).

On the other hand. . . what? Nobody expects the Harris County DA’s Office to have any honor? It’s every prosecutor for himself? Nothing any one prosecutor says binds another prosecutor?

I need to be negotiating directly with Pat Lykos?


12 responses to “And The Trail Has Its Own Stern Code”

  1. Ah, you see this is where civil law and criminal law intersect. Given agency law, the prosecutor’s office, rather than the particular prosecutor who actually made the promise, should be bound by the promise made. I mean, that’s what we learned in law school, isn’t it?

    • LOL. An Power makes a good point. Ethially speaking, the law of agency ought to apply.

      HOWEVER, there is an administrative law theory (sometimes called “innoculation”) that basically says an underling cannot bind the government (we usually see this when wrong advice is given to a taxpayer by the IRS and subsequently prosecuted).

      The moral of the story is that the government will never be held to the same ethical or moral standard as the private attorney. Not sure why…

  2. Sorry, the prosecutor who made the promise is totally in the wrong on this one. The office as a whole is in the wrong only so far as they made the subordinate think he had such authority. The inverse would bind elected officials to choices made by the folks who work for them and that is simply backward. Sticking to a promise someone had no authority to make would give subordinates the ability to control policy choices (at least once). Sticking to such a promise would even enable the prosecutor to bind the office where he in fact knew he had no such authority.

    Hope you learned your lesson.

    • Adrian,

      #2 prosecutors often have the discretion to dismiss, and Lawyer A had had the authority under his previous chief. Does that change your answer?

      Your answer, I think, is imminently practical and entirely anethical.

      I’m hardheaded. Please explain the lesson I was to have learned. Negotiate only with Pat?

      • The fact that the prosecutor once had such authority is of absolutely no bearing. It speaks poorly of either the training received or the prosecutor’s ability to retain direction depending on the circumstances, which I don’t think either of us are in a position to know.

        The decision whether or not to pursue charges in any particular case where probable cause exists and how doggedly to pursue those charges is ultimately a policy choice in every case. It is the job of the underlings to carry out the policy formulated by the elected DA, be that policy good, bad or mediocre.

        Again, your stated position would allow an underling prosecutor to bind the elected DA even where the underling was acting in bad faith and knew for a fact that he had no such authority, regardless of whether a previous DA would have given him such authority.

        • Line prosecutors have discretion and authority to bind the elected DA. In a county this big, line prosecutors have to have discretion and authority because the elected DA can’t make a rule for every situation.

          In this case, Lawyer A’s call was something that, two weeks before, he had authority to make. What changed was his immediate supervisor, Lawyer B (less experienced than him)—his previous chief had allowed him more discretion. This, I am in a position to know.

          So the rules are different with the new chief. That in itself is okay—to some extent the chief gets to make the rules. But the chief also has the responsibility of telling his subordinates what the rules are. If the #2, because the rules haven’t been explained to him, does something that would have been okay under his previous chief but isn’t under the new chief, the new chief is at fault.

          Yes, a subordinate acting in bad faith could bind the elected DA. That’s the nature of discretion, and of authority, and it doesn’t seem to have been a problem in Harris County. The solution in that problem (but not this one) would be to discipline the subordinate so that it doesn’t happen twice.

          I have to say that you speak with an amazing amount of confidence for a guy who really has no idea what’s going on. Are you bluffing or demonstrating the Dunning-Krueger effect?

  3. ” Good morning members of the jury panel. Just to orient you as to where you are – this is a CRIMINAL courtroom. We’re not CIVIL, but we try to be mighty friendly”.

    As for the matters at hand:

    Unless the promise made is patently unconscionable, unethical, or truly beyond the scope of the lawyer’s authority – as a prosecutor many moons ago – the general rule was: ” A card laid is a card played”.

    LS: Former #3, #2 & Chief ALL in the Honorable Judge Joe Kegan;s Court.

    • I agree with Larry Standley here. There was offer (i.e. nolle) and there was acceptance (I am almost CERTAIN that you accepted on behalf of the client). If you can demonstrate some detrimental reliance (and maybe even if you can’t) you might be able to argue straight contract to the judge in chambers (better in chambers so as not to create an “embarrassing moment” for the State).

      I’ve seen this “contract theory” work in CT, not certain how ya’ll down Houston way would handle it.

  4. I have personally backed up offers I could barely swallow because a previous prosecutor made them and wrote them in the file. Unfortunately, not everyone in prosecution believes there is honor in the profession to be upheld, and plays the “that was the prosecutor before” card. But with file-swapping, filling in, and the general job turnover in some D.A.’s offices, that leaves defendants guessing at the State’s position in a case from one setting to the next, something that cannot be in the interests of justice or due process. Ultimately, if the representations of assistants have no intrinsic value, there’s no point in having assistants — your D.A. should work every case. Refusing to leave the courtroom without a signed dismissal doesn’t even provide much protection; charges can be refiled. When taking over someone else’s files, the “It’s in the file, so I’m signing it today, but don’t expect to see it again because sweetheart deals like this won’t happen on my watch” card is always preferable.

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