A New Day Dawning

“I hope our new DA will take cor­rec­tive actions and remind his DAs to not par­tic­i­pate in these long-standing ex parte dia­logues.”

-Robb Fickman, commenting here, January 19, 2013.

From: Hill, Belinda
Sent: Tuesday, August 13, 2013 11:57 AM
To: All Prosecutors
Subject: Ex Parte Communications

Recently, we have received some complaints from the defense bar about improper ex parte communications occurring between prosecutors and judges.  Whether these complaints are true or not, this is a good opportunity to remind you of the rules governing ex parte communications with the courts in which you practice.

Don’t do it. Don’t do it. Don’t do it.

Scott Durfee prepared a memo listing all the reasons why we should not engage in ANY ex parte communication with the judge.

Here’s why:

·                     It may be a crime.  Section 36.04 of the Penal Code provides:

A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.

For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.

·                     It may be professional misconduct.  Texas Disciplinary Rule of Professional Conduct 3.05 provides:

A lawyer shall not:

(a)        seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;

(b)        except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(1)        in the course of official proceedings in the cause;

(2)        in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;

(3)        orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

·                     It may result in office discipline.  Section 10.4(c) of the Operations Manual forbids prosecutors from communicating with the judges of the various courts, either directly or indirectly, concerning the merits of a pending case unless such communications are “expressly authorized by law.”

Here are some practice tips to avoid trouble:

1.         Be disciplined in how you communicate with the judge.  It can be very easy to rationalize a brief one-on-one discussion about a particular case with the judge as clarification of an issue to facilitate a settlement, a “heads up” about some piece of evidence or testimony that will be offered later, an informal request for a continuance or notice about a missing witness, a request for advance notice of the order of trials, an advance discussion of what kind of sentence the judge will impose on a plea without an agreed recommendation, or some similar “harmless” discussion about a minor issue in the case.  It might take place at the bench while you’re waiting for the other side’s lawyer to arrive, it might be your peeking your head into the judge’s office to say a few words before docket call, it might be a short e-mail to the judge.  The discussion may even be initiated by the judge and you may worry that not answering the judge’s question will be considered rude.

Don’t indulge in such rationalizations.  The State Bar will not, and your supervisors won’t either.

2.         Don’t ask the judge for advice on how to try your case.  There is no question that our judges, having tried or presided over many cases, have much wisdom to impart to you about how a case should be tried.  Often, because you are the “home team” assigned to the court, a judge really wants you to know how well (or how badly) you are handling a trial and why.  If this advice is offered while the case is pending, politely decline this mentoring opportunity.  If you want the judge’s take on your case, ask him or her after the case is over (assuming that the case is not on appeal and subject to remand).

3.         Wait for the opposing lawyer.  If the case is on the morning docket and you want to get a ruling on a pending motion, but the defense attorney is late to court, neither you nor the court should penalize the attorney by proceeding on the merits of the motion in his or her absence.  If you or the judge are frustrated with the attorney’s lateness, there are specific sanctions you can pursue to address that problem, but depriving the defendant of an advocate should not be one of them.

4.         Document your notice to the opposing counsel.  A certificate of service on your motions should be specific as to time, date, and the manner of service.  This may be your only evidence in rebuttal to a claim that you improperly communicated with the court without notice to the defense, so it needs to be definitive.

5.         Do not use the court staff as a back door to the judge.  When you are communicating with the court coordinator, avoid asking the coordinator to get something done that you could not ask the court to do without the other side being present.  This can include requesting issuance of orders for bench warrants or attachments, trial continuances, and bond revocations.

6.         Ex parte communications on “procedural” matters may still be improper.  For example, if a court order is necessary to obtain certain records during the discovery phase of the case, you can’t simply approach the bench and present the motion and order without noticing the other side and giving them an opportunity to be heard.  You may correctly think that the other side has no reason to oppose the order, but make no mistake: you are asking the judge to exercise his or her discretion to issue an order and the other side should know what you’re doing.

7.         Apply the Golden Rule.  Obviously, not every communication with the court is going to be an ex parte communication: we are allowed to talk to our judiciary about matters that would not have any influence on a pending matter.  In figuring out whether a particular communication may be improper, ask yourself, “How would I feel if a defense attorney had this conversation with the judge or his staff outside of my presence?”  From that perspective, the answer is usually pretty obvious.

This is a change to the way things have been done in the Harris County Criminal Courthouse for longer than I’ve been practicing there, and probably for as long as there has been a Harris County District Attorney’s Office. Belinda Hill (the First Assistant District Attorney) and Scott Durfee (Chief of the General Litigation Division of the Office of the General Counsel of the District Attorney’s Office) are to be commended for taking a strong and clear position against “ANY” ex parte communications with a judge.

Hill’s email and Durfee’s memo were prompted by this letter from HCCLA President Todd Dupont to Hill:

Dear Judge Hill:

Recently the leadership of the Harris County Criminal Lawyers Association has received several complaints about ex parte communications between Harris County judges and Assistant District Attorneys.

Often these communications are about scheduling matters. HCCLA members complain about prosecutors and judges discussing which trials will go on Monday versus which will not. The prosecutor gains a unique advantage in these communications because he or she may properly prepare for certain trials while effectively ignoring last-minute trial preparation in other cases. The defense attorney then spends countless hours preparing over the weekend for a trial that everyone (judge, court staff, and prosecutor) knows is not actually going to be tried but rather rescheduled. It has been reported that a defense lawyer had expressed an intent to file a motion for continuance to the prosecutor who then “presented” this fact before the court during a “scheduling conference” wherein the judge denied the motion while discussing the case scheduling with the prosecutor ex parte.

There are also examples of more substantive ex parte communications between prosecutors and judges. It is not at all uncommon for prosecutors to get expert designation orders and other orders signed ex parte. One felony judge is known to give suggestions in the back hallway to “his” chief prosecutor on how subordinate prosecutors can do better in ongoing trials.

For as long as any of us have practiced there have been improper ex parte communications between bench and bar in Harris County. HCCLA’s interest is not in punishing these past transgressions, but in ending the practice. To that end, we write to seek your help in changing this culture.

Many of our members and board members are former Harris County prosecutors; we are not unmindful of the pressure on prosecutors not to rock the boat with judges before whom they appear every day. HCCLA will do its part to educate the bench and discourage it from seeking ex parte communications. Likewise, HCCLA’s leadership will discourage the defense bar as needed to delegitimize ex parte communications from either side.

We ask that you educate the prosecutors in your office, and discourage them from talking about cases with judges without the defense present, even where that conversation is about the scheduling or priority of trial cases.

There are three parts to the problem of ex parte communications between prosecutors and judges:

1. Prosecutors who don’t know, don’t care, aren’t motivated, or are reluctant (for fear of offending the judges) to avoid ex parte communications with judges.

2. Judges who don’t know or don’t care what improper ex parte communications are.

3. Defense lawyers who engage in improper ex parte contact with judges, leading the judges to think that ex parte contact is okay.

Thanks to Dupont and Hill’s communications, the first and third parts are taken care of.

Now we just have to bring the judges—some of whom consider the prosecutors assigned to their courts “their” prosecutors—on board.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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5 Responses to A New Day Dawning

  1. Ric Moore says:

    So, when I had one prospective defense attorney tell me that if I hired him, he merely had to mosey over to the judges office and explain my case and I would, in turn, either get off or get off light is an example of that? No, I didn’t hire him, as he reminded me of a smarmy used car salesman. Plus, he was asking a LOT of questions before money exchanged hands. I wasn’t sure who he was working for. If they are really against you, it pays to be a paranoid. -grins- Ric

  2. Alex Bunin says:

    You, Todd and Robb all deserve credit. Great work.

  3. Robb Fickman says:

    Mark – it’s a watershed moment. Most certainly Belinda Hill & Scott Durfee’s positions make clear that the DAO leadership opposes longstanding Ex Partes. This is important.

    What’s more important is that they have demonstrated a clear intent to do the right thing. It does not surprise me as I have always found
    Belinda & Scott to be very ethical.

    There are however, many ADAs who are far from ethical. This message tells the ethically challenged ADAs that ethics are important to those at the top.
    That message hopefully will make ADAs think through the numerous ethical choices they make.
    My hope is that the message will force the ethically challenged ADAs to be ethical across the board for fear of loosing their jobs.

    While this is truly a great step for justice, we have a long way to go. The biggest impediment to justice is the very group charged with dispensing justice.

    The 37 judges , run from highly ethical to rarely ethical. The Unethical Culture of the Judges acting as part of the prosecution team must change. The Unethical culture of judges prioritizing expediency over justice, must change. Until the unethical judges change their ways the
    Harris County Criminal Justice System will be more criminal than just.

    As the unethical judges show no sign of changing ,
    As the unethical judges know precisely what they are doing, we must continue to fight these judges.
    Calling them ” Your Honor” is akin to a two word motivational speech.

    HCCLA must continue to use all legal means to fight to change the unethical conduct of these judges. I am confident that we will

    We are not turning away. These judges will change.

    Kudos to Todd, you, Belinda & Scott for prioritizing
    ” doing the right thing”,

    Robb Fickman
    Houston

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