Doing Justice? I Think NOT!
Many of you may be aware of the unfortunate ruling recently by the Texas Court of Criminal Appeals regarding death row inmate Charles Dean Hood. Attorneys for Mr. Hood appealed his conviction when it was discovered that the district judge who presided over his trial had engaged in a clandestine sexual affair with the district attorney who prosecuted Mr. Hood. Although there were rumors circulating about the secrete affair at the time of Mr. Hood’s trial, his defense attorney had no actual proof of the affair until after the trial when a former assistant district attorney executed a signed affidavit acknowledging the affair.
The Court of Criminal Appeals overruled Mr. Hood’s appeal of his conviction, which focused on the clearly compromised impartiality of the sitting judge. The basis for overturning the appeal was that Mr. Hood did not raise the issue of the affair in a timely fashion. The defense argued that they could not have raised the issue because at the time the appeal began they had no actual proof of the affair. Today, the editorial staff of the Dallas Morning News opined about the decision in an editorial entitled, “Justice Disgraced.”
The high court’s ruling is clearly a disgrace for no other reason that it cast a larger shadow on the Texas Criminal Justice System already suffering the strains of wrongful convictions and rampant prosecutorial misconduct ( i.e., Dallas fake drug scandal, DNA exoneration(s), etc.). For more information on the problems with the Texas Justice System see the Innocent Project.
What struck me most about the recent Hood case was the reaction from the Collin County District Attorney’s office where the prosecutor in charge of the appeal called the ruling a, “significant procedural victory.” That statement is appalling on its face as criminal justice should be about “justice” and not “procedural” wrangling such as in civil law. However, this attitude of “procedure” over “justice” is fast becoming a major problems spreading trough the Collin County District Attorney’s Office. My partner, Hunter Biederman, recently wrote about a similar issue we experience with prosecutors from Collin County. To read Hunter’s article click this link.
Prosecutors have an affirmative duty to not seek conviction but to do justice. This mandate is found in the Texas Code of Criminal Procedure Article 2.01 which reads, in part, “It shall be the primary duty of all prosecuting attorneys…not to convict, but to see that justice is done.” Don’t misunderstand the tone of this article. As a former prosecutor from Collin County I know that the majority of the prosecutors there are talented, ethical and conscious attorneys. However, as with any office, there are a few instances where individual prosecutors have lost there sense of purpose and have employed tactics that run counter to doing “justice.” Although, I will not name names (YET!) below please find a few situations that I have experienced with my clients where prosecutors have employed tactics that were counter to the interest of justice.
Situation 1:
A client of mine was set for trial and faced two separate charges. On the day of trial, the prosecutor in charge realized that there was a problem with on of the charges because the charging instrument was deficient. When the judge denied his request for a continuance, the prosecutor dismissed the one charge against my client and we proceeded to trial on the other charge. Later that same day, the prosecutor then re-filed the charge that he had dismissed earlier in the morning.
So, instead of my client being found NOT GUILTY at trial due to the defect in the charging instrument, the prosecutor manipulated the procedural system to cover up HIS mistake and prejudice my client. When questioned by the judge regarding the law and as to why the case was dismissed and re-filed the same day, the prosecutor, on record, told the judge that he was unaware that his actions were counter to the law. In effect, he admitted that his own legal incompetency cased him to manipulate the legal system.
No justice was accomplished by the prosecutor’s actions. Instead, he cost more work for the court, forced my client to face two separate trials, and cost the taxpayers of Collin County.
Situation 2:
In a recent trial a prosecutor told the jury during closing statements that he was bound by Article 2.01 of the Texas Code of Criminal Procedure to “not seek a conviction but to do justice.” He further explained that it meant he as a prosecutor he could not mislead (lie) to them about the facts of any case. He then told the jury that my actions, as a defense attorney, had no such mandate. So, in essence defense attorneys are free to lie all the want to the jury. The only thing to prevent them from doing so was their own “moral compass.”
Now, since this was said during closing statements, I could not respond to the prosecutors charge that defense attorneys are free to lie to and mislead juries. (Prosecutors get the last word in jury arguments). However, had I been able to respond I would have pointed out two things to the jury and the prosecutor. First, ALL attorneys are deemed “officers of the court” in which they practice and are bound by ethics to conduct themselves in a professional manner and not mislead the court or juries. And second, the prosecutor should have flipped one page over in the Code of Criminal Procedure to Article 2.03 which states, “It is the duty…of the attorney representing the accused [defense attorney]…to so conduct themselves as to insure a fair trial for both the state and the defendant…”
Now, this prosecutor should have been aware of the above. But, since he knew I could not respond he took liberty to actively mislead the jury thus potentially denying my client a fair trial on the merits of the case. This type of behavior happens often during closing statements. In addition to what this prosecutor said, one typically will here things like, “the defendant had equal subpoena power” or “ you should convict the defendant because a kid that was killed two weeks ago by a drunk driver” These statements are counter to the constitution which explicitly states a citizen accused has no duty to produce evidence and professional ethics.
Situation 3:
This is the one that Hunter wrote about here in his blog. To recap, we were hired by a client to argue a motion for new trial because his attorney, who has been found ineffective twice before, committed acts prior and during his trial that were objectionable and may warrant a new trial. The court granted our request for a hearing on the motion. On the date of the hearing, the head misdemeanor prosecutor confronted us and said we needed to discuss a “procedural” matter with the judge. This well intentioned prosecutor informed us that basically we did not know the law regarding how to obtain a hearing on a motion for new trial. Further, he did not wish to “embarrass” us in front of our client so he requested that we discuss the issue ion chambers and off the record. We were then presented with case law that had NOTHING to do with the issues in our case.
We politely declined his offer to not embarrass us and instead requested to have this issue heard in court and on the record. Prosecutors know that if the issue was argued off the record and decided in chambers then we would not have a record to appeal should the judge rule in the state’s favor. The argument made by the prosecutor was that “procedure” demanded that the court could not hear our motion for new trial. It did NOT matter to him that a citizen may have received poor representation and that the prior trial was potentially flawed. The prosecutor DID NOT want the judge to even hear from the citizen concerning his complaints.
We have subsequently presented cases directly on point that states WE, not the prosecution are right on the procedural issue. In fact, instead of acting the way the State did (waiting until the hearing date after the time to amend was filing, and sandbagging with cases at the last minute), we sent copies of the cases on point weeks in advance. However, they still continue to fight to prevent this potentially wronged citizen from having his say in court as to whether JUSTICE demands he receive a new trial.
I guess this prosecutor is just looking for another “significant procedural victory” instead of justice. After all, they have done just that before!
