What’s Wrong With This Picture?


From an offense report:

On this date investigator spoke to [prosecutor] and asked him if it was still okay to speak to the suspect at the county jail even if his attorney had faxed over a letter reminding investigators that he is representing the suspect and reminding investigators not to speak to the suspect without him being present. [Prosecutor] informed investigator that investigators could speak to the suspect unless the suspect himself asked for his attorney.

Violation of Texas Disciplinary Rule 3.09?:

The prosecutor in a criminal case shall . . . refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.

Of 4.02?:

in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.


12 responses to “What’s Wrong With This Picture?”

  1. Possibly. I’m hoping someone will explain to me why prosecutor isn’t in the wrong; I’ll even open the comments here to anonymous commenters with cogent arguments.

  2. If cops are agents of the State, and Texas Rules of Evidence treat them as party opponents, then how can prosecutors avoid the ethical implications? Why is it that the State Bar seems not to be that concerned with prosecutorial violations of the Disciplinary Rules? Of course I could be completely wrong-not a situation I am unfamiliar with.

  3. Is it because of the rule that says only the government can break the law and since they aren’t the defense they are the government?

    (What did I win?)

    You aren’t being serious with this question, are you? Because, really, they do believe they can ignore that rule and, increasingly, the courts support that view.

    • I guess I was being serious, as I am one of those who have heard “How can you be so experienced (translation old and experienced) and yet seem to be so gullible?” To which I answer “It’s a gift”. I am an eternal optimist. And a believer in Unicorns.

  4. Seems to me the prosecutor ought to be spending some time in a reeducation camp. Are they really this dense? And am I really helping to pay their salary?

  5. Don’t shoot me, but…..

    From a constitutional perspective, the prosecutor appears to be correct. A valid waiver of Miranda rights isn’t negated by police ignoring defense counsel’s request to speak with the lawyer. (See, e.g., Moran v. Burbine (1985) 475 U.S. 412.) The USSC made clear that the waiver/invocation decision is the client’s alone, and he doesn’t have to be told that an attorney is waiting in the wings.

    As far as 3.09 is concerned, the prosecutor seems to have a decent argument that 3.09 doesn’t require anything beyond what the Constitution mandates, so long as the defendant has received and waived Miranda. I say this because the comment to the rule provides: “paragraph (b) does not forbid the lawful questioning of any person who has knowingly, intelligently and voluntarily waived the rights to counsel and to silence, nor does it forbid such questioning of any unrepresented person who has not stated that he wishes to retain a lawyer and who is not entitled to appointed counsel.”

    As far as 4.02 is concerned, I have no comment. Because I’ve got to go to work.

  6. I’m assuming your client had been arraigned and had retained you as his counsel. If so, this is a clear violation of your client’s Sixth Amendment right to counsel (putting the Miranda issue aside). Massiah v. U.S., 377 U.S. 201(1964), is the seminal case on this issue, and might be of some help to you (Sixth Amendment violation where defendant released on bail, had retained counsel, and police subsequently bugged one of his cohorts who taped conversations in his vehicle).

    Under the Sixth Amendment you only need a “deliberate elicitation” under Innis, which is a standard easily met in this situation.

  7. D bonded out before the detectives could make a run at him.

    I’m more interested in 4.02. Is the prosecutor, knowing that I represent D regarding this subject, causing or encouraging the cop to talk to him about that matter? (Assume that the investigation and the representation involve the same subject.)

    • I think that, in theory, the prosecutor has violated the “or encourage” prong of the rule. Although it is my personal view that the state ought be viewed as a single entity (thus eliminating these thorny little issues), it ain’t.

      In reality however (ain’t THAT always the case), I think most jurists would have viewed it under the “no harm, no foul” lens and passed on making any real determination unless they were forced into a corner (as in – not being able to find an evidentury exception to allow an end-around).

      I do agree with you that the ethical issue presents quite differently than the Miranda issue – as the ethical issue questions the prosecutor’s knowledge regarding representation whereas Miranda requies the client’s invocation.

  8. Is the prosecutor, knowing that I represent D regarding this subject, causing or encouraging the cop to talk to him about that matter?
    Nah. He’s (at least arguably) simply failing to discourage the cop, something not explicitly prohibited by 4.02.

    I shall now pull the other one.

  9. I’ve seen defense attorneys seek “protective orders” in court, directing the State and any agents of the State not to question the defendant. Perhaps they are just acting out of an abundance of caution. That, or perhaps the rule doesn’t cover that. But approving the action sure seems like “encouraging” under 4.02.

    All I know is, it’s something I would never have done. I hesitated to approve such contact even when it was NOT about “the subject of the represenation” (i.e., a different case against them, or against another suspect.) And, as I was not particularly known for being cautious, that should tell you something.

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