Guest Post: Sesha Kalapatapu on Rule 3.06

Lawyer (and HCCLA member) Sesha Kalapatapu wrote a short essay—apropos of Brian Wice’s op-ed criticizing a prosecutor’s post-trial conduct and the prosecutor’s response—which I thought was too good not to share (with Sesha’s permission, of course):

Nobody really knows what Brian “did” or “didn’t do,” or what Nathan “did” or “didn’t do” unless you were there. All we can rely on is the first person account statements that Brian and Nathan gave. Here’s what the accounts tell us as facts we can rely on, though:


It’s clear that the jury did not convict because they found the complaining witness to be credible enough to convict. It’s clear, from Nathan’s own account, that Dick DeGuerin was talking to the jury about that very subject, the complaining witness’s credibility – i.e., what a “psycho” she was according to Nathan. It’s not clear if Dick was talking about facts outside the record, but it’s a fair assumption that he was only discussing evidence that the jury had already heard and considered relevant to the outcome. This is all fair and proper post-verdict conduct – ask the jury about the facts they received and how their weighted it, and possibly even tell the jury how you agree or disagree with how they weighted the evidence they heard. 


By contrast, It’s clear that Nathan interjected because he believed it to be his “duty to explain the truth,” and by “truth” he meant the facts that the jury WAS not allowed to consider. And that’s the problem entirely — he has no such “duty to explain the truth” and in fact, he has an affirmative duty NOT to explain the truth to the jury in a manner inconsistent with the Court’s limine instructions. Even if his purpose was not to embarrass the jury or to influence their future behavior, the entire body of Texas lawyers (not just the criminal defense bar) has already accepted and codified the principle that such “truth telling” behavior is in fact harmful to the process for reasons already discussed. 


So, whether he should or should not have done it isn’t a debate at all. He should not have done it, and should be held accountable for it when he admits that he did it, and especially when he clearly indicates that he would do it again. Would any of us engage in a debate on barratry if a lawyer said, yeah I solicited a client, but I turned out to be the best lawyer for the client, I gave him a great outcome and so I’m not sorry and I’ll do it again? Of course not. If you or he or anyone else wants to have a debate about the injustice of it all, pull a Thurgood Marshall and get the entire body of Texas lawyers — not just criminal lawyers, mind you — to change the Disciplinary Rule. Until then, the rest of us have a right to be outraged by his unapologetic attitude about the whole subject. 


And lastly, I’ll be honest here – I was equally offended by his final comment about standing up for what’s right “even if it isn’t easy.” Really, Nathan? Pick any cross section of defense lawyers, and I guarantee you would find people who really, truly stand up for what is right even when it isn’t easy. The lawyers who report judicial misconduct and then go back into those same courtrooms. The lawyers who don’t get paid but still doggedly defend their clients. The lawyers who couldn’t get in exculpatory evidence, and then have to swallow the fact that their clients are going to jail while they desperately try to make sure they preserved the appropriate appellate arguments. The lawyers who sacrifice family and livelihood because otherwise, they would have to live with knowing that their mistakes could put innocent people in jail. These are all things that are right but not easy. Next time, please compare that with the difficulty of KEEPING YOUR MOUTH SHUT WHEN YOU LOSE, because I honesty don’t see what’s so difficult at all. Especially when there’s a rule that requires you to keep your mouth shut. 


Prosecutors who lament the fact that it is “difficult” to put someone in jail are NOT people standing up for what is “right.” They are the people who chip away at our constitutional rights, bit by bit, until it’s “easy” to put any innocent person in jail, not just the people who are found guilty based on credible evidence presented in a truly adversarial context.

No disclaimer needed. Sesha’s a really smart guy, and he nailed it.

6 responses to “Guest Post: Sesha Kalapatapu on Rule 3.06”

  1. Mark, you bring up a question I have always wanted to ask you. Has your outspokenness ever caused undo harm to one of your clients, such as having an ADA refuse a reasonable plea bargain just to punish you personally? A judge who singled you out and ruled against you just to give the prosecution a small advantage time after time?

    I found it interesting to read Murray’s comments on this incident. His feelings were just the opposite of yours. No surprise at all, in fact I knew which side he would take before reading his blog, but I wonder also if his being politically correct and massaging the egos of his pals doesn’t give him an unfair advantage when it comes to pleading his cases?

    If you don’t respond then I’ll assume I already know the answer. Regardless, keep up the good fight, and know that even though many won’t admit it, they do admire you for your courage.

    • Mike, it’s a fair question. If my blogging ever harmed one of my clients, I would have to reconsider my blogging.

      I don’t believe an ADA has ever refused a reasonable plea bargain just to punish me personally. My clients get take deals that they think are reasonable, or prosecutors dismiss their cases, or I try their cases. When I rely on prosecutors to do right by my clients, they are prosecutors who do right by people, and about whom, therefore, I would have nothing ill to say.

      (The astute will have noticed that I haven’t named the prosecutor who is the subject of this discussion. I am not unsympathetic, and I don’t need to add to his Google woes. I have never had any issues with him, and other than this incident I don’t know of anyone who has. I think his conduct in this case reflects mostly on the culture and training of the Lykos DA’s Office than on him as a lawyer, about which more later.)

      Judges? There are judges who rule against the defense generally to give the prosecution a small advantage time after time (see, for example, Ruben Guerrero, though his problem is more that he doesn’t understand the law, and he relies on the state to guide him) and I’m sure my blogging doesn’t endear me to them, but here we’re in “should a lawyer kiss a bad judge’s ass?” territory, to which question my answer is, “in a specific case to help the client, perhaps, but not as a general practice to help clients.”

  2. Thanks for your answer, Mark. It really had me wondering since some comments on Murray’s blog are suggesting that the DA’s office will now work to make it very difficult for Wice to practice in Harris County. I hope they don’t come after you next.

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