Butthurt Prosecutrix

A Harris County ADA had been trying to talk to a potential witness. The witness didn't want to talk to her. Feeling harassed, the witness hired me. I told the prosecutor that I represented the witness. The prosecutor tried to subpoena the witness to court.

While the case was technically still pending, the defendant had made a deal. There was no hearing set at which my client's testimony might be relevant. The purpose of the exercise was not to put my client on the stand, but to make it more convenient for the prosecutor to confront her face-to-face.

Here's the "subpoena." It's not signed by the court or the clerk (or, in point of fact, by anyone). It's not a subpoena.

So my client didn't have to go to court. I went for her, though, and explained that my client, not subpoenaed, wasn't there.

The prosecutor was finger-pointingly cross with me. She took it as a personal affront that I hadn't informed her about the problems with the document she was trying to use to get my client (who didn't want to go to court or talk to the prosecutor) to go to court so that the prosecutor could try to talk to my client. If I had told her that the document wasn't a subpoena (she contested that—apparently in her code of criminal procedure a peace officer can issue a subpoena), she would have issued a proper subpoena so that my client would have to come to court, which wouldn't have been in my client's interest.

In other words, this prosecutor waggled her finger at me because, instead of calling her up and explaining the law so that she could more easily waste my client's time in court, I sandbagged her. Trying to subpoena the witness was gamesmanship. She knew she had screwed up and been outplayed, and rather than take responsibility she blamed me. (Her ignorance soon proved much more profound: "She's a witness, I can talk to her.") 

I've written before about "subpoenas" that aren't. But that doesn't mean that I've taken it upon myself to educate every Harris County ADA about the law.

A prosecutor ought to know the law and the facts. If you don't know the law applicable to the dispute between us, I'm not going to educate you to make you like me. If I think it'll help my client for you to know the law, I'll educate you, but you are my adversary; part of my job is to put you in the position to make mistakes, and then exploit those errors.

I work hard to know the facts and the law better than you or anyone else in the courtroom, and if I help you fix your mistakes when doing so doesn't benefit my client, I'm not only giving up that advantage, but also putting my relationship with you ahead of my clients.

If you prefer lawyers who put their relationships with prosecutors ahead of their clients, I'm sure you'll find plenty in the criminal courthouse. But I don't intend to be one of them.

21 Comments

  1. Wow, a newbie? How could she think you would be on her team? She should be happy you didn’t file a motion to quash and embarrass her with a blackrobe.

  2. I once received a “subpoena” in a small claims lawsuit where the blank form had been filled out by the opposing party.

    …and that’s it.

    No judge, no signature… some dude thought he could compel me to disclose business secrets bc he wrote some words on a form.

  3. Is that even a real subpoena? It has the DAO seal instead of the HCSO logo at the bottom. I wonder if a real application for a subpoena was even filed? Or was this a fake subpoena to scare someone in to complying?

    1. No, it’s not a real subpoena.

      Did the prosecutor know it was not a real subpoena? She put on a pretty good act. Do felony prosecutors in Harris County know that you can’t get a felony subpoena without an application?

      Knowingly or recklessly serving a fake subpoena to scare someone into complying would be a crime—not that the Harris County DA’s Office would ever prosecute one of its own for such a thing.

      1. Of course they wouldn’t harris..err..harras_as’inine one of their own, lest it properly portray their eristic-endeavour of being nothing more than a ‘case’ of the blind leading the bl_ind’ustri_ous’ted! Notwithstanding that, methinks that the DA’s office still has a case to ans_*wer’t*.

        “To *be*, or not to *be*_nign, that is the question” needing *be*_nnett put to them…postha_ste’rnly!

        – with sincere apologies to W. Shakespeare.

  4. Mark – so this could techinically work both ways…. While in trial, the defense says they want to call Witness X who is on the State’s subpoena list; and then the State can say that Witness X was not ever served with a proper subpoena and therefore there is nothing for the Defense to rely on.

    Thanks for bringing this up, but shame on you for thinking ADAs should know the law…….

      1. Yeah, and upon fe[de]ral reflection…shine on har_vest’ed mo_onus! This finagling on Butthurt’s p_art’ifice is reminiscent of when several police officers from the State of Western Australia tried — in another State — to serve a bogus arrest/extradition warrant on a person wanted for murder. This dodgy warrant, post its being scrutinised by a savvy lawyer, like Mark, was expeditiously given the bum’s rush by a fe[de]ral magistrate due to two pages of the affadavit not having been signed on the warr_ant’ithetical and it did not lay out a charge. A typical case of carte blan_che’ckmated writ large!

    1. Point taken, but methinks it was here evidently far more the case of Mark’s full-well knowing in advance that ADAs are known nescient of the law [especially so now with this cited situation of Butthurt’s being the icing on the c_ache], and even should they make so bold as to ever insinuate that they are au fait legally, it’s all bound to fall on dea_fears!

      Just exactly when, during the trial — if they ever even dared thinking of raising the spectre — the State would say that Witness X ain’t on the roll, would be very much moot point, especially so if there’s any evidence whatsoever of a subpoena’s having been served, especially a bogus one, and given that the import of “subpoena” means “under penalty”, and moreover that Mark felt compelled to appear on his client’s behalf, as all decent and indentured lawyers should in fact be seen to do, merely means that Mark — let alone the Court per se — has been thoroughly penalised unnecessarily.

      Methinks that Butthurt should now be summonsed to appear on her own be_half’wittedness! One might even find, upon investigation, that Butthurt, in her assuming herself to be a “peace” officer, spells it as “piece”, ergo, someone in authority needs to have a very large “piece” of her before she gets back to the ser’vile’ servery fully intending to just follow the crowd at chow time, as did Lance Corporal Harold Dawson (Wolfgang Bodison) in the movie “A Few Good Men”. She’s made a right proper mess of things on behalf of the State and needs be kept away from the mess h_all’egorical before someone decides to issue a code r_ed’ification on her…via Witness X, aka official_dom’inatriX, viz…offi_ce’rtiorariX!

  5. That document looks to me like a simulated legal process for purposes of section 32.48 of the Penal Code. Aside from being a Class A misdemeanor, it puts the DA’s office in league with the “Republic of Texas” folks. And I could make an argument that it violates Rule 8.04(a)(2) and (3) of the disciplinary rules of professional conduct.
    Of course, the bar never sanctions prosecutors but if we did it, we would be appearing before a grievance committee — after we posted bond.

    1. I think I know who that butthurt gal would be. I have been having my own fun with one. Her line “I have been doing this a long time”. My line “longevity doesnt always equate to proficiency, does it?”

    2. (I had half-written a blog post comparing the HCDAO to the Republic of Texas before the butthurt prosecutrix gave me the gift of a better story.)

      This is the problem with ADA’s idea: that by announcing that his subpoenas were not real one would be admitting simulating legal process. The DA’s Office might never prosecute it, but I would.

      1. Well, since the bar disciplinary rules require supervisors to be responsible for supervising junior lawyers and if the DA’s office approved/provided those phony subpoenas, Pat, Jim, the trial bureau chief, the division chief, and the court chief all might have legal/bar problems.
        But, of course, we all know that no one enforces those rules on prosecutors. If, for example, the bar cracked down on ex parte communications, there wouldn’t be a line prosecutor left in the courthouse.

  6. Mr. B., I never thought about the utilization of fake subpoenas before this revelation. While we are on the subject of fake-outs 101 & fake-shit 201, if & when time permits please consider clarifying if the following is ‘real’ or ‘fake’.

    Specifically – *If a certified case file is purchased and every single pre-trial motion and ORDERS forms are found to be void of any spaces being filled in, neither Agreed, Denied or time stamped, are they basically fake motions or were just simply ignored in mass by the court prior to jury trial and business as usual in H.C.?

    *If an ADA creates (2) State’s Exhibits docs. dated (7) years apart with a total of (3) number (2’s), is one real and the other fake? Or it’s business as usual in H.C.? (Not duplicates, one typed and one hand written with an added mystery gun? Thanks for standing up against fakism in the courts and for clarifying fake from real.

    1. I would prefer that you asked these off-topic questions via email instead of in the comments.

      It is business as usual in Harris County for many lawyers to file pro forma motions (it impresses the clients) and then not get rulings on them.

      I don’t know what you mean by “State’s Exhibits docs.” Sounds fake, though.

  7. I actually had to go look this one up, because the Rules of Civil Procedure DO allow attorneys to issue subpoenas themselves (as officers of the court.)

    Good lesson for the day.

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