If you followed my blogging on Twitter this morning, you know that I was set for trial in a domestic assault case in Harris County. Due to the large number of people still without power, no jury panels are being called this week.
Ordinarily that would be a good thing -- pushing judgment day off another month or so is always good for the client. However, in this case my client was being held on a "blue" warrant as he was on parole, and we wanted to resolve this matter as quickly as possible.
I knew that the state had yet to serve a subpoena on the reluctant complaining witness who had already completed an affidavit of non-prosecution and had told the DA's office she did not wish to see my client prosecuted for the alleged assault.
We decided to call the prosecutor's bluff. When the judge called the trial docket I announced ready. The judge asked me to approach and he told me there were no jury panels being called. I informed the judge that we were ready to try the case to the bench.
When the prosecutor arrived he told me he didn't know when we would actually try the case because he didn't believe that panels would be called next week. I told him we were ready to proceed with a bench trial at which point he told me he had a right to a jury trial and wanted to try it before a jury.
Then I told him that not only was his complaining witness not cooperating with the investigation but that his office had failed to serve her with a subpoena. He insisted they had. Having spoken with the complaining witness on Monday, I knew she hadn't been served.
The prosecutor went to speak with his investigator. Ten minutes later he returned and told me he was dumping the case.
This case was won because we called the prosecutor's bluff and didn't reveal our hole card until the right moment.