Isn't that putting the cart before the horse?

I spoke to a prosecutor down in Galveston earlier today about a new DWI case I picked up last week. I was interested in finding out what she had in her file because I understood that the prosecutor offered my client a deal in exchange for a guilty plea - without having as much as an offense report in the file.

Not only was there no offense report in the prosecutor's file; there was no video, there was none of the paperwork an arresting officer is required to file with the Texas Department of Public Safety in a DWI case and there were no results from the blood test performed on my client.

Now I understand prosecutors are under pressure to obtain convictions and close cases, but asking a person to plead guilty to a criminal offense without being able to review any of the evidence against her is obscene.

I would also contend that it violates Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct:

Rule 3.09 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;

(d) make timely disclosure to the defense of all evidence or information known to the

prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

Without any offense report, or any other report for that matter, in her file, the prosecutor cannot with any certainty state that she is not prosecuting a case that is not supported by probable cause. This type of behavior by attorneys representing the State of Texas in criminal matters is untolerable and points out why hiring an attorney is the first thing a person accused of committing a crime should do.

Duty and ethics

I ran across a very interesting column in this morning's Houston Chronicle penned by Rick Casey about the State of Texas' attempt to murder Mr. Delma Banks despite prosecutors having sat and kept their mouths shut while two witnesses for the state commit perjury on the stand.

Now, despite the US Supreme Court's decisions to send the case back for review and to vacate the death penalty, the State of Texas is back at it, sending an assistant Attorney General to New Orleans to argue that Mr. Banks is not entitled to the relief granted because his attorneys did not give proper notice of their intent to use a transcript of a coaching session with the prosecutor and one of the lying witnesses.

Nevermind that the prosecutors failed to disclose the existence of the transcript while Mr. Banks sat on Death Row - the state is seeking to reinstate the conviction on a technicality.  A technicality that wouldn't exist had the state done the right thing in the first place.

Every attorney licensed by the State of Texas pledged to follow the US Constitution, the Texas Constitution and The Texas Disciplinary Rules of Professional Conduct. 

Rule 3.09 defines the duties of a prosecutor.

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

I would pay close attention to 3.09(d) that requires a prosecutor to disclose ANY evidence that might tend to be exculpatory.  Based on the spirit of the rule, defending the State's handling of this matter is a violation of the disciplinary rules as such an argument condones the violation of Rule 3.09(d).  In other words, the Attorney General is asking one of his assistants to violate the oath she took on the day she was sworn in as an attorney.