Prosecutors and Judges: How is this Possibly Okay?

Today (January 29th) I got a fax from the prosecutor on a misdemeanor case. The fax contained:

A Motion to Disclose Experts; and

An order granting that motion.

The motion carried a certificate of service claiming that the motion had been served on me on the day the motion was filed or before. It had not been served on me before today. In fact, the prosecutor had to call me this afternoon to ask for my fax number.

In the order, dated January 25th, the judge wrote that the motion came on to be heard and considered “after proper and timely notice to the Defendant”, and granted the motion, ordering me to disclose my experts by Friday.

So not only did the prosecutor not serve me with a copy of the motion before it was filed, but she didn’t serve me with a copy of the motion until four days after the order had been granted.

My civilian readers need to know that this is not an unusual event. Indeed, this is pretty much par for the course when a prosecutor bothers to get such an order signed. They routinely file such motions without notice to the defense and routinely present them to judges who grant them ex parte. If there is a prosecutor or a judge who does not engage in this conduct, I don’t know who it is.

Prosecutors:

First, what are you doing, presenting motions to judges without the other side present and, indeed, without notice to the other side? That’s ex parte contact, which is generally unethical, and no exception to the general rule applies here.

Second, what are you thinking, filing documents with the court with fictitious certificates of service? Not only is that unethical, but it’s also a crime: tampering with governmental records. Look it up. On second thought, don’t bother. It’s Texas Penal Code Section 37.10(a)(1). It’s a class A misdemeanor unless you intend to defraud or harm another (arguable — defrauding the court?), in which case it’s a state jail felony.

(So congratulations: in the course of prosecuting a class B misdemeanor, you’ve committed a more serious crime. Call home and tell your mother; I’m sure she’ll be very proud.)

I know that the Harris County District Attorney’s Office has never bothered a whole lot with the rule against ex parte communications with judges, leaving such ethical breaches to the discretion of the prosecutors. I know that the Office takes a somewhat laissez-faire attitude toward the signing of pleadings as well. And I know that you guys feel bulletproof, because (a) nobody has ever held your feet to the fire to actually follow the Texas Disciplinary Rules of Professional Conduct; and (b) it would be the Harris County DA’s duty to prosecute a tampering-with-governmental-records case, and everybody knows the DA’s office is never going to prosecute a prosecutor for breaking the law in the course of her duties.

But the times? They are a-changin’. The public no longer holds the delusive belief that you can do no wrong; there’s going to be a new DA a year from now, and there’s a reasonable probability that it will be someone who doesn’t approve of prosecutors and cops breaking the rules, someone who has no qualms about prosecuting prosecutors for the “little” crimes like this one that some of you commit every day. And the limitations period for even misdemeanor tampering is two years.

Maybe you guys will blame Chuck Rosenthal for this too. He keeps his own counsel, you’ll say. I’m not buying it.

When such a fundamental rule (the foundation for fairness in an adversary system, so basic that we actually learn it in law school) as that forbidding ex parte judicial contact is so routinely ignored, that’s proof that the rot spreads farther than just the sixth floor. It wasn’t Chuck’s job to teach this young prosecutor, and every other young prosecutor, that ex parte contact with the judges is a no-no.

Which brings us to the judge, who, as it happens, reads Defending People.

Judge, what are you thinking? When you sign an order on the ex parte motion of a party, you call your impartiality reasonably into question.

Every day you take it upon yourself to help the baby prosecutors in your court be better lawyers: you give them little hints and pointers about how better to prosecute people. Now, that’s not really appropriate, but it’s going to happen however much I fuss — even if you don’t care whether the state wins, you naturally want the state’s inexperienced and poorly-trained lawyers who are in your court every day to become better lawyers. Right?

While you’re making the effort to make them better lawyers, do you think you could spare a thought or two for their ethical training? You know that I don’t think you should be taking it upon yourself to improve their litigation or trial skills, but nobody would consider you remiss in providing them with a little ethical guidance. Especially where the ethical rule involves the relationship between them and you, and is so critical to procedural justice and the appearance of fairness.

I realize that you probably didn’t know that the certificate of service was false. You took the prosecutor’s word for it. Clearly, that doesn’t work. But it doesn’t matter. You ruled on a motion ex parte, without giving the other side an opportunity to be heard. If you had made sure I had an opportunity to be heard, of course, you would have learned that the prosecutor’s certificate of service was false, and I would have had a chance to respond.

The times are a-changin’ for the bench as well. The Harris County Criminal Lawyers’ Association has filed three bar complaints against sitting judges in the last two years. More grievances are coming. Will any of those bear fruit? Maybe, maybe not — it takes more than just a righteous complaint for the Commission on Judicial Conduct to act against a judge. But it’s indisputably easier to not be grieved than to be grieved and win.

Aside from the criminal bar growing some much-needed collective backbone in recent years, there’s something else for you to consider: Dallas County. It is possible that Harris County’s Republican judges, like Dallas County’s, will need more than the anointment of the kingmakers in the local party apparat to keep their jobs. Judges who create the appearance of impropriety are more likely to draw opponents than judges who avoid it by scrupulously following the rules. Will these opponents win? Maybe, maybe not — the Dallasification of Harris County elections is purely speculative right now. But it’s indisputably easier to run unopposed than to run opposed and win.

[Addendum: we eventually tried this case to a jury, and the jury acquitted my client.]

6 Comments

  1. Mark Mark Mark. And you wonder why they are calling you names on my blog. Are we full of a little piss and vinegar this morning? You are kind of flying a little fast and loose with the accusations of no ethics, and I should point out that your post also sounds a little threatening.

    I agree that prosecutors need to be more careful when they sign off on a certificate of service to a defense attorney, and they shouldn’t represent to a court that you’ve been faxed something if you haven’t (even if it a mistake made with no mal-intent). However, I think you are mistaken when you accuse them of having an ex parte conversation with the judge. The typical thing the prosecutors do is just turn all those notices into the clerk of the court. You know as well as I do that there isn’t a full-fledged hearing on a Motion to Disclose Experts. Are you saying that a prosecutor can’t file the Motion without your presence? Is it okay if they go to the bathroom, or do they need to wait for you to be there for that, too?

    Some times the clerk return the signed orders to the prosecutors, but it is not after full-fledged hearing, and you know that.

    Man, I know you and I disagree on these things, but geez, the tone of this one was pretty damn menacing, Mark. I’m not sure that threatening the judges politically is the best way to handle it.

  2. I’m just a law student, and know nothing about nothing–but even I know that whether there’s a formal hearing or not, the point of serving somebody is so that they can respond, if necessary, oppose the motion.

    My understanding of ex parte (curse this limited Civ Pro class, not even covering texas procedure) is where one side doesn’t get a say.

    So here, mark gets served with the motion… after the judge rules on it.

    Please explain to me, ALCL, where the defense had a chance to respond to this motion? Surely you can clear this up for a law student.

  3. Seriously, that’s a threat?

    Only a prosecutor in an ivory tower D.A.’s office would consider that a threat.

    Maybe that’s just me though.

  4. AHCL, thanks for your comment.

    Of course there’s no full-fledged hearing on a motion to disclose experts. So what? There’s no full-fledged hearing on most things we do down at the courthouse. But that doesn’t make an ex parte order appropriate.

    The prosecutor doesn’t need my presence to file a motion, but the judge needs to know whether I’m opposed before granting it. That’s why the judge shares blame with the prosecutor. The prosecutor didn’t seduce the judge into signing an ex parte order.

    One piece of information that you don’t have is that in this case neither the motion nor the order served upon me yesterday had the clerk’s file stamp on them. How does that happen? I’ll tell you: the prosecutor files the motion directly with the judge, the judge signs the order, and the judge gives the order directly to the prosecutor. If you think that doesn’t happen every day down at this courthouse, then you’re probably a transactional lawyer.

    If the prosecutor’s going to be asking the judge for relief in my client’s case in the bathroom (are you saying that happens?), you bet they need to wait for me. There must be lots of temptation for judges and prosecutors, together for much of every day, to bend the rules; all the more reason for prosecutors and judges to be reminded that the rule against ex parte communications is actually important.

    How do you and I disagree here? That ex parte contact between lawyer and judge regarding a case is improper? That falsifying a certificate of service is improper and, if done knowingly, is a crime? That it is generally improper for a judge to sign an order without giving the other side an opportunity to respond? That an order to disclose experts does not fit within any exception to that general rule? That prosecutors out to learn and assiduously follow the law? That bad judges may no longer be able to rely on the Republican Party to ensure that that they are reelected?

    Or do you just not like the way I said it?

    If I had any intent to file grievances in this case, I wouldn’t have talked about it. I’d’ve done it. If the tone is menacing, it is because the consequences for doing this stuff can be so harsh. The extreme always makes an impression. The days of Harris County prosecutors and judges being unaccountable may well have ended at the beginning of this month.

    Mark

    p.s. They’re calling me names on your blog because they’re scared and insecure. They feel a loss of control and perceived loss of dignity, and that makes them angry. Lashing out anonymously makes them feel like they’re regaining control. Cowards’ll do that; they’re the car-keyers of the blawgosphere.
    MB

  5. I’ve been further reflecting on this all day, and I’m deciding to concede the point. Under the rules of evidence and procedure, of course, it is improper to have ex parte communications.

    I guess I’m letting my experience of the way things practically work in the courtroom to step over what is actually prescribed. Under the law, a prosecutor shouldn’t get a motion ruled on where the defense isn’t present. But the same holds true for the defense.

    I know that defense attorneys routinely have standard discovery orders signed by the judge, and I don’t know of a prosecutor who would object to that. I would suppose that the State is entitled to a hearing on it, but as a matter of course, it’s nothing controversial, and most prosecutors aren’t going to stop what they are doing during a busy docket.

    The Motion to Disclose Experts is probably considered to be the equivalent of that for prosecutors. It’s just a mandatory motion that prosecutors are trained to file. 75% of the time, there isn’t an expert the defense is calling. On those occasions where there are, the defense doesn’t really mind disclosing them.

    And Mark, you were right, it was probably the tone of the article that set me off more than anything. You are right in stating that the actions are prohibited.

    I would hate to be misinforming any more law students.

    And come to think of it, I guess I’m not doing much to destroy the idea that you and I are the same person, either.

  6. AHCL,

    You think I’m right? Clearly my position is not radical enough, then.

    Defense lawyers, of course, shouldn’t do the same. Not only is it unethical, but it’s also stupid for defense lawyers to ex parte judges in this county because the prosecutorial bar has so much more access to the judges than we do. If we make it okay, we’re going to lose. I’ll always ask the prosecutor to join me before approaching the judge for some relief.

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