Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

[W]e abide by the principle which dictates that somebody will always position himself or herself to systematically harvest anything of value in this world for the sake of money, power and/or ego-fulfillment. We aim to be that somebody.

I read that quote tonight in Chapter One: Put Everything Out There of Say Everything: How Blogging Began, What It’s Becoming, And Why It Matters by Scott Rosenberg. It’s from the manifesto of suck.com, a site started in 1995 by Chapter One’s protagonist Justin Hall.

Hall was to his medium, the nascent internet of the late 80s and early 90s, what Barbara Mandrell was to hers: he was blogging when blogging wasn’t cool. In fact, his combo diary/link fest style of home paging in the first part of the last decade is credited in the book as the internet’s first blog.

And his Mad Magazine like manifesto is dripping with irony. But it also speaks a universal truth. Taking the easy way out is… well, the easy way out. It’s what most people will do. That’s why they call it the easy way. Attempting to profit off of someone else’s labor, whether physical or mental, has always been around, always will be.

Made me think of something Houston criminal lawyer Mark Bennett said recently:

I don’t know why, but I would have expected someone who, like Melina Benninghoff, reads this blog to have the good sense not to steal posts.

I doubt Bennett thought Benninghoff actually read his posts; after all he came up with the phrase “outsource your marketing, outsource your ethics” to describe the situation. Indeed, it turns out some jagoff was hired to help Ms. Benninghoff’s web presence, and the IP theft is explained. (I’m not saying it’s justified; but it’s not surprising either.)

Shortly after leaving my customary smartass/snarky comment to Mark’s post, I actually phoned Ms. Benninghoff’s office to ask why she wasn’t scraping my posts, but I ended up leaving a message on her assistant’s phone. (I blame Greenfield for my attempted prank; he recently reminded me how fun phone conversations can be.) Given all the blogging and twittering on the subject over the holiday weekend, I’m not holding my breath for a return phone call.

But splogs don’t really bother me. Sure, it’s theft when it happens. And the thief, duh, shouldn’t be thieving. But I don’t think lawyers who splog, or who pay others to splog for them, are getting a particularly good ROI for their efforts, whether someone calls them out on it or not.

For one thing, as Mark’s original post on the subject points out, the blog looks like crap. Not all splogs are so amatuer, but apparently it takes more effort than most internet thieves can muster to master the art of plausible deniability.

And I’ve been a “victim” of them as a well. Several times over. One time I set a trap for the splogger. No one else may have noticed it, but frankly the end result amused rather than angered me. Another time being scraped got me mentioned on overlawyered.com.

Bottom line: no one, lawyer or otherwise, will benefit from splogging. Not that I mind other folks in the practical blawgosphere calling them out on it when they do.
 

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This excerpt from the ABA Journal speaks for itself, so I’ll just file it in the “don’t try this at home” category, and move on:

A lawyer says his letter threatening to reveal a prosecutor’s alleged car registration violation was intended as a joke, but Gage County Attorney Randy Ritnour didn’t take it that way.

Neither did the Supreme Court of Nebraska. The court suspended the attorney for 120 days for writing a letter offering to drop the registration matter if Ritnour responded in kind by dismissing a case against an associate in the lawyer’s office, the National Law Journal reports. The associate had been charged with driving without proper registration or proof of insurance.

The letter included a photo of the license plate on the prosecutor’s car and said, "Our lips, of course, are forever sealed if [the associate’s] case gets dismissed."
 

An expensive joke.

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On the heels of my latest Sharon Keller post, comes this gem from this month’s Texas Bar Journal under disciplinary actions: the State Commission on Judicial Conduct issued a public warning to Judge Gustavo Garza, justice of the peace, in Los Fresnos, Tx. What sorts of judicial No No’s could merit a public warning? Among other things:

Failing to inquire into the students’ or their parents’ ability to pay a fine or to provide them with the options of a payment plan, performing community service in satisfaction of a fine or court costs, or waiving the fine or costs after a determination of indigency;

Sounds like made-for-TV Podunk I’m-a-JP-and-I’m-here-to-collect-$$$ garbage. “Hey, I’ve just made a finding that you have no money, but since no one else gets community service in my court, neither do you…” What else?

Failing to properly document or issue a written judgment or order of probation or deferred disposition, or of assessing a fine, court costs or special fees in both students’ and parents’ cases.

Maybe it’s his busy afternoon golf schedule that prevents Judge Gus from bothering to issue his demands in writing, but won’t he run into problems with enforcement if there’s no documentation to show what a potential contemnor failed to do? Naaaah:

Holding a student in contempt of court without affording her adequate due process, including the right to be represented by counsel or providing evidence of the violation of a written order or judgment of the court and ordering the confinement of a student, who was 16 years old when charged with the offense of failure to attend school, for contempt of an unwritten court order.

No lawyer, no proof of what you were supposed to do in the first place, no problem: go to jail. But my favorite part?

Requiring the students and their parents to return to court after the parents had discharged the fine through paddling.

Paddling? Seriously? Let’s skip the part where the student and parents were forced to return to court after the ‘sentence’ was fully completed and jump right into the issue of corporal punishment.

Now, as the father of twin two year old boys, I completely understand the allure of spanking. I don’t do it, mostly because it seems illogical to believe that the primary behaviors that I’m tempted to negatively reinforce would be reduced by a whooping. (“I’ll teach you to stop hitting, kicking, and otherwise assaulting your brother!” SMACK)

But I could be wrong about that, and when my boys steadfastly refuse to behave, I sometimes hear the echo of my father’s voice, “Spare the rod, spoil the child”. (To give him some credit, not only were spankings both mild and infrequent, but I now actually believe the part where he added, “This hurts me more than it hurts you”.)

But a judge? Forcing parents to paddle their children to “discharge their fine”? Maybe he didn’t know this was beyond his authority…

While acknowledging that the Legislature had not provided the courts with any legal authority to impose corporal punishment as a sanction under the Texas Education Code or the Texas Code of Criminal Procedure, Judge Garza routinely facilitated and permitted the paddling of juveniles in his courtroom thereby clothing the practice with an improper judicial blessing.

And for all this, merely a public warning. Again, while fundamentally disagreeing with his practices, I can understand how a judge might think parents have under-disciplined their children, and that a little dose of old school parenting from the bench will do the child and society some good.

But in today's world and especially knowing he didn’t have authority to do this in the first place, how did he think he would get away with it?

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Overwhelming immutable facts that tend to show the defendant is indeed guilty of the crime charged can lead to some pretty creative excuses. For example, defendant gives consent to search on tape and a baggie of cocaine is found in his right front pocket.

Extensive legal training isn’t necessary here. The client intuitively knows that unintentional possession is the only realistic defense, and so from time to time you’ll hear a lawyer in the courthouse saying, “Hey, my guy told me the I-was-wearing-someone-else’s-pants story…”
 

It’s not that the defense is impossible – Goodwill sells used clothing, for example; but as a general rule it’s difficult to believe, and, more problematic for the lawyer, difficult to sell. I’d bet most long term prosecutors in felony courts have heard some such version of this several times over the course of their careers, but never dismissed a case based on that theory. I’ve never used it in front of a jury, but you’d probably need something else to back it up if you wanted it to go far.

And the defense lawyer’s job goes from difficult to practically impossible if, for example, the defendant gives admissible and inconsistent statements that contradict the defense.

Which leads me to Sharon Keller:

The state's top criminal appeals court judge has amended her personal financial statement to disclose more than $2.4 million in property and income that she had not previously reported to the state, as required by law.

In a sworn statement filed in Austin earlier this week, Sharon Keller said she omitted more than two dozen properties, bank accounts, income sources and business directorships because her elderly father in Dallas had not told her about them.

As a state wide elected official, Keller is required by law to submit reports about her finances. In the case of judges one obvious reason for the rule is to allow parties with cases in front of her to know whether there may be a conflict of interest which would require that she recuse herself. And besides, the law is the law.

Keller brought this on herself by complaining that defending herself against ethics charges would bankrupt her. If you’re rich and you tell the press that you’re poor, they just might do some digging.

So what’s her defense for filing a sworn statement that omitted $2.4 million in holdings? Well, it can’t be a false – or felonious – statement if she didn’t know about her secret millions.

"My father, Jack Keller, over a number of years has acquired and managed, without input from me, all of these properties," Keller wrote in a filing with the Texas Ethics Commission meant to correct the annual report she made in April 2008.

Smell test problem, of course, but as long as there aren’t any inconsistent statements, it’s possible, right? The article continues:

Her attorney expanded on her explanation Friday, saying that Keller, the presiding judge of the Texas Court of Criminal Appeals since 2001, misinterpreted what she had to disclose and lost track of holdings she had disclosed in earlier financial reports.

"We're not saying she is excused. She is at fault," Ed Shack said. "But she wasn't trying to deceive anybody."

OK. She didn’t know about it. And she might have known about it but didn’t know she was required to disclose it. And she’s at fault, even though none of it was intentional on her part.

Well Sharon, here’s some free advice: the next time you buy pants at Goodwill, you better check the pockets. Your reputation for truthfulness is shot, so no one will ever believe you when you testify that you were wearing someone else’s pants.

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This is an exaggeration, but sometimes I feel like I could start a whole blog responding to Randy Cohen’s incorrect answers in his weekly “Ethicist” New York Times Sunday Magazine column. (The truth is I’d probably only get one good post every other week, but that’s still an astonishingly high rate of bad “advice” – if that’s even what it is attempting to be. On the opposite end of the hypothetical niche blog topic spectrum, I would have to quit my full time job to track Mike Lupica’s bad predictions and silly statements; and that’s really just counting the 30 minutes of Sports Reporters, never mind his columns in the Daily News.)

Back to Cohen… I’ve got several 80% complete yet-not-quite-fully-polished posts about his column in my “unfinished” folder regarding past logical transgressions, but this morning I felt compelled to ask Mrs. ACDL to watch the kids by herself - I’ll have to pay that back - while I came over to tap out a few thoughts about today’s column.

If you’ve already read the column, Truth in Suspension, you may be guessing that I objected to the first scenario, where a reader asks Cohen if it had been ethical for a private school to label the discipline meted out to some kids caught using marijuana a “restriction” instead of a “suspension”, presumably, the reader posits, so as not to ruin their college admission status.

This is immediately rephrased as the following question, “[I]s it acceptable to use deliberately deceptive language to a college admissions office?” This straw man is easier for Cohen to respond to, although the closest he comes to an actual answer is assigning the school administrators some George Orwell, Politics and the English Language, for summer reading.

While that would indeed make good fodder for a nominally criminal defense related post – pauses and puts that down on blog post idea list – I will instead address the absolutely, positively 100% not correct answer Cohen provides in the 3^rd letter of today’s column.

Here’s the setup: some workman come over to your house and accidently damage thousands of dollars of clothes in your closet. The company pays for the clothes. You then write a letter to Randy Cohen asking if you have to give the damaged goods to the company, as they wish you to, or whether you can keep them because you plan to donate them to charity. And here is the supposedly ethical answer:

Keep your (stained) shirt on, or rather, in your charity basket.

If you badly damage your car and put in an insurance claim, the insurance company doesn’t come by the house to pick up the debris.

It is not buying scrap metal; it is making good your loss.

The imperfect painter, same deal. He’s compensating you for an injury, not for purchasing your spattered unwearables.

Ridiculous on its face. The injured party here is being compensated for the replacement value of the clothes.  The answer doesn’t change mathematically or ethically if they’re being given the fair market value of the clothes – but replacement value is the best guess available based on how the writer’s question was phrased.

First let’s start with the I-don’t-understand-how-insurance-works part of the answer, and then we’ll finish with some basic math on the actual example.

If your car is damaged in a collision, then the insurance either pays for it to be fixed (putting you in the same position you were before the fender bender) or pays the blue book value if it is less than the cost of repair. The second way actually puts you in the same financial position you were in before the crash, but if you’re upside down on your note it may not feel that way. (I’m also assuming that blue book is actual fair market value – not always the case, I know.)

In case number two, where they pay blue book or fair market value of the car before the crash… the insurance company does indeed keep the scrap metal. And to the extent that it’s still worth something, they would be overcompensating you if they let you keep it.

Let’s put some numbers on the clothes example, and work it out. You have three thousand dollars worth of clothes in your closet which the workman accidently damages. Before the accident, you have… this is easy, $3000 worth of stuff.

Now it’s damaged beyond repair (the writer tells us that “efforts to remove the stain were unavailing”). OK, so they company gives you the $3000 replacement value, and what? Let’s you keep the clothes?

The fact that you want to donate it to charity doesn’t change anything here at all. In fact, let’s say your marginal tax rate is 33%. You now get to pay one thousand dollars less on your taxes. So now you have the value of the clothes and the extra grand in your pocket. You’re being overcompensated. You started with $3000 worth of stuff, and you end up with $4000.  [Update below, I do the math again assuming they don't take the original value as the amount of the deduction.]

And the company is taking the hit here. They should take the clothes, get the deduction, or sell them for whatever they can get. Heck they can wear the clothes around the office if they like. They have made you whole with the check for three grand. They’re allowed to limit their loss in this situation. No reason for you to double dip.

Faulty math, and a basic misunderstanding of how people are made whole, leads to faulty advice. Cohen ends with an attempt at humor:

Incidentally, I’d be surprised if any charity wanted those begrimed clothes. Even poor folks prefer unstained clothing.

Nice. So the ethical thing then is to refuse the company its due, but just trash the clothes. Honestly, I could blog regularly correcting the Ethicist. But the kids are being noisy out there. Duty calls.

Update: I’ve realized that my example assumes that the letter writer would take a $3000 charitable deduction, leading to the extra $1000 in his pocket (at the hypothetical 33% marginal rate). That would probably be hands down tax fraud. But let’s assume then that they estimate the donated clothes at less than 1/3rd the original value, say $900. That leaves them with $3300, instead of the $3000 they started with.

Maybe they won’t take a deduction at all? Fine, but they still seem to place value, perhaps personal fulfillment, in giving the clothes away. Now they have $3000 + the joy of giving.

Despite Cohen’s smart alec last line, the point is that the damaged goods still have value, and the letter writer wants to keep the $3K, plus whatever that value is. After all, if Cohen is correct that it’s just garbage, then why are they objecting to the company coming just to haul it away?
 

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An attorney advertises (in one place) that his ‘specialties’ include ‘criminal motion practice’ and then posts this to a general someone-please-answer-my-question site:

What are some of the standard pre-trial motions attorneys file in criminal cases?

Most of my court-appointed cases usually end up with a plea deal at the preliminary hearing, or the DA and I work out a plea before indictment (PBI). However, I have two cases where my clients are refusing plea deals, and we are headed to trial. Both have been indicted.

I am aware of the standard "Brady" motion; but are there others which are useful?

Ouch.

I can’t decide whether to post a link to where I ran across this tidbit. I’ll take a poll in the comments section. Should I or shouldn’t I? 

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So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:

Hardin: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

Mag: You don't think much of your critics?

Hardin: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

Mag: It seems like he was asking for trouble.

Hardin: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

Mag: Even if that decision sends him to jail?

Hardin: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

So Clemens’ attorney is essentially broadcasting the story that:

• Roger could have taken the safe route
• I (the lawyer) told him the easy thing was to shut up
• He is big bad Roger and wants to fight for his reputation

Gosh. That might be what an innocent person would do. Or even what a “You can’t prove I’m guilty” person would do.

Might be part of an overall PR strategy.

So why are Scott and Stephen so sure that Hardin is sneaking behind his client’s back without his explicit permission to broadcast this story? Is Harden so dumb he doesn’t think this interview might get back to Roger?

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Western Justice has a post up titled “How to Pass the MPRE: WWJD ≠ WWLD”. Right off the bat, the title of the post is amusing.

For the non lawyers, the MPRE is the lawyer ethics portion of the overall Bar Exam that must be passed before you can be licensed to practice. WJ is claiming that to pass the ethics exam, first figure out what “What Would Jesus Do?” – and then mark the opposite answer to pass your legal ethics test.

It’s a lawyer joke. And actually, if it were left alone, or perhaps well supported, it might still be funny. But then WJ tries to back up the joke. (N.B. Jokes are never funnier when they have to be explained.)

So our anonymous prosecutor gives us an example:

Johnny confesses a crime to you. The elders of the community wish to know who has committed this horrible sin. Johnny wishes to keep his sins secret from the community, and confess to nobody. The elders, however, wish to get to the bottom of the matter and find out who is guilty of this heinous sin. What do you tell the elders regarding Johnny's confession?

Let us start with the first part of the equation: WWJD. Well, I cannot speak for all Christians and followers of Jesus' teachings, philosophy, and religion, but I can safely assume that in that situation, Jesus would convince Johnny to confess to the elders. Now, let us finish the equation: ≠ WWLD. The opposite of that is to not tell the elders and the people of the community that Johnny has committed the unpardonable sin. Furthermore, you, as his lawyer, should convince Johnny not to say anything about his sin--not to you, not to the police, not to anybody.

Now I’m not holding myself out as a biblical scholar, but I know enough about Christianity to know this is hogwash. It just feels like faulty analysis. Jesus hung out with prostitutes, lepers, adulterers, thieves, tax collectors – in other words: sinners and outcasts. If the War on Drugs had started 2000 years ago, he would have been in the alleyways with the drug addicts. And I certainly don’t recall any passages about him being a Narc of any sort – no matter what crimes (sins?) you were committing.

So I called my resident Bible expert/fellow attorney Stephen Vigorito – he who helps build and maintain his Church by day, and supports himself by moonlighting for sleeping lawyers and doing their jail releases at night – and I ask him: Does the bible say anything about priest-penitent privilege? Sounds like a Roman Catholic concept, but is there some quote from Jesus, some Bible passage that I can use to counteract this seemingly counterintuitive example?

Never one to disappoint, Steve tells me he has referenced Jesus as the “first criminal defense lawyer” in sermons. He quotes the First Epistle of John Chapter Two Verses 1-2:

My little children, these things write I unto you, that ye sin not. And if any man sin, we have an advocate with the Father, Jesus Christ the righteous:

And he is the propitiation for our sins: and not for ours only, but also for [the sins of] the whole world.

Of course. This is the basis of Christianity itself. Sinners (i.e. all of us) have an advocate with the Father. Confessing your sins to Jesus and repenting through him – not the Pharisees – that’s the path to eternal salvation. 

Jesus is the ultimate defense attorney.

WJ, your ‘safe assumption’ has no basis in scripture.

Coming Soon (to a criminal defense blog near you): Jesus, the adulterer, the accusers, and casting the first stone.

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Glad to see national coverage on ABC News about Judge Sharon Killer’s refusal to keep the Court of Criminal Appeals open an extra 20 minutes to allow defense lawyers, who were apparently having computer/technical difficulties, to file a stay of execution.

Some quick background. The United States Supreme Court has agreed to hear a case, Baze v. Rees,  to decide whether lethal injection is a constitutionally permissible execution method. The legal issues get a little more complicated than that actually, but suffice it to say that this isn’t some crackpot defense lawyer theory: the American Medical Association’s code of ethics prohibits its members from participating in lethal injections. And there is ample evidence to show that without proper medical attention, lethal injection executions run a high risk of being botched. 

Botched execution methods? Potential for Eighth Amendment cruel and unusual punishment appeals? Apparently SCOTUS wants to take a look at the issue.

So, many states are wisely deciding to stay executions using this method until the Supremes come to a decision. After all, it’ll be a little hard to ‘undo’ the punishment, if SCOTUS rules for the defense.

Back to Judge Killer. When Michael Richard’s lawyers called to alert the court that they were having problems getting to the court by 5 p.m., they were told, essentially, “tough s**t”.   No extra hour, not even an extra minute to file the appeal. Richard’s lawyers wanted the stay based on the Baze case. And they would have eventually gotten it.

How do we know? Well, the US Supreme Court ordered Texas to halt an execution two days later, based on the same reason for appeal.

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

[Also see Mark Bennett’s blog to sign the complaint being filed in this matter.]

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Houston criminal defense lawyer Mark Bennett has been writing recently about lawyers who promise or guarantee good or great (or impossible?) results in criminal cases.

His example was one where the unethical lawyer promised a jail release in a federal drug case where the potential sentence could be more than 10 years (triggering presumptions of flight risk, danger to community and no bond). Mark’s point was not that he mourned the loss of a client but that:

This case illustrates why it's not "stealing clients" but "stealing from clients" -- the client was not an asset to me, but a liability. I don't mind losing the client, but that doesn't make the lawyer's lies any less repugnant.

I wrote in a comment to his post:

The other half of this equation is that the client wants to believe the lawyer that tells him "I can get you out".

I think all of us have heard from clients over the years all the variations of unreasonable promises made and outright lies told to clients; perhaps I should add, especially to those in jail.

I've always wondered what those conversations are like, you know the ones... the 'coming clean' conversations where the lawyer 'explains' that everything he said up until now was somewhere between 95 and 100% wrong.

I understand folks in desperate situations wanting to believe the person that comes to tell them the good news, even if that good news can easily be rephrased as ‘I want you to pay me money’. And people in jail are indeed desperate, and have less access to information than those out of jail. If their choice is between the lawyer who says he will get them out, and the lawyer that says it will be difficult if not impossible, then they are likely to choose the first. 

But we see this situation (the lawyer who overpromises/lies) in other familiar situations as well: most commonly, the “I will get your case dismissed’ lawyer. The lawyer that says that at the initial client meeting. Without reading the police report. Or talking to the prosecutor. Just… “I will get your case dismissed”.

Here’s what I don’t understand about that. I meet with people who have been arrested in Austin, Texas on a regular basis. Some of them hire me, some don’t. My goals in the initial office visit include

• listen to what the client has to say happened
• explain the law
• explain the range of possibilities
• narrow that down to the reasonable range of possibilities
• give my client ‘homework’; i.e., things they can do that will help me help them get the best possible results

When I narrow that range of outcomes from the possible (outright dismissal to maximum jail time) to the likely range of outcomes (dismissal if we do X, Y and Z to probation, or whatever the case may be) I always say:

“It’s unethical for me to promise a particular result in an individual case, but based on my experience…”

Of course, the potential client knows that it’s not possible for me to look into that crystal ball and tell them exactly how the case is going to turn out, and on occasion, they chime in something like, “I wouldn’t believe someone who told me they knew exactly how it would turn out…” or something similar.

That’s because I’m stating the obvious: I don’t have that crystal ball and I can’t guarantee or promise results. Why then would you believe a lawyer that does?

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Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.

While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:

To search someone is to treat him as if he were untrustworthy, if not dishonest.

That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.

But to mildly humiliate many does not eradicate the sting to each.

I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.

Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.

Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.

Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.

It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.

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There’s an interesting conversation going on over at Sarena Straus’ Prosecutor Post-Script where in a series of posts and comments the author and readers discuss various issues in prosecutorial ethics.

In “Who decides when to prosecute?” she discusses the considerations involved when a prosecutor “overrules” the wishes of a complainant in an assault case. Sarena points out this comes in two forms: victims unhappy with a plea agreement that is too lenient, and ones that don’t want to prosecute the case at all.

The first post sparks a question from a reader: “"It's interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial?” Sarena answers the question in part by posing a “typical hypothetical offered by DA's offices when interviewing prospective ADAs”:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case.

The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty.

Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney?  (2) If not, should you anyway?

My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest.

(I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests:

There's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his.

Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso)

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