Ethics and the Law: Following the Law

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Since the beginning of American history, there has been a fight for democracy and freedom. We, as Americans, have the Constitution and Bill of Rights to guide us. Thousands of men and women have died on the battlefield, or have been emotionally or physically wounded to defend our way of life. Criminal defense lawyers are in the law enforcement business, just as are police officers, deputies, federal agents, and all other members of the constabulary. Our job as criminal defense lawyers is to make sure the state and federal laws are followed. When cases are dismissed because of legal errors, some people claim they got off on legal technicalities. That is not true. They got off because someone did not follow the law. Many of the cases we win are not because we are legal geniuses but because the judge, prosecutor, or constabulary did not follow the law. When these individuals lie, cheat, or hide evidence, they are dishonoring all the veterans who served this great country. It should make you mad when they do these dishonorable acts. There was a high profile case in Houston a few weeks ago where the prosecutor took it upon himself to tell a jury, after a not guilty verdict, of all the bad acts he could not present during trial because of the judge’s ruling. There were allegations that the prosecutor violated Texas Disciplinary Rules of Professional Conduct Rule 3.06. The following motion, shared with me by a fellow attorney, should be filed if you have concern:

CAUSE NO. 1745634

STATE OF TEXAS § IN THE COUNTY COURT

  1. §AT LAW NO. 5 OF

JOHN DOE § HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO PROTECT THE FAIRNESS OF FUTURE JURIES

TO THE HONORABLE JUDGE OF SAID COURT:

  1. The Defendant in this case has a prior criminal history which will not be admissible in the guilt/innocence part of this criminal trial absent the Defense opening the door; which it will not do. Defense Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history with discharged jurors in an attempt to adversely influence future actions against other defendants. A prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history; that during the guilt/innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows a disrespect for the law; that defendant shows a predisposition to break the law; and defendant this predisposition is evidence that committed the crime he was charged with. Of course, the fear here is that the discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In support hereof, Counsel for the Defendant would show:
  2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.” Section 3.06(d) provides in pertinent part:

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not . . . make comments to a member of that jury that are calculated merely to harass or embarrass a juror or to influence his actions in future jury service [emphasis added].

  1. Comment 1 of Rule 3.06 provides, in pertinent part, that:

[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a juror or to influence action of the juror in future cases [emphasis added].

  1. Comment 1 for Rule 3.09 provides in pertinent part that:

special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility to see that justice is done and not simply to be an advocate. This responsibility carries with it a number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of sufficient evidence . . . [and not evidence of predisposition].”

  1. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is hung, and, where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a criminal history because it will create a presumptive predisposition in the minds of those jurors that any future criminal defendant likely has a criminal history too, and, that the future defendant was likely pre-disposed to commit the crime in issue.
  2. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter. It says, in pertinent part, that:

[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system, the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer, either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings [emphasis added].

  1. Hence, it is equally clear that where a prosecutor makes such a disclosure that both the defense lawyer and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid the problem all together by having the court issue a precautionary order to maintain the integrity of the jury system by protecting future jurors. Moreover there is no harm to the State by the issuance of the requested order.

PRAYER

  1. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the Defendant’s prior criminal history. The Court is also asked to order the prosecutors to instruct their fellow prosecutors, agents, and employees not to make this same disclosure.

Respectfully Submitted,

THE THIESSEN LAW FIRM

By: _____________________________

MARK THIESSEN

SBN 24042025
1017
Heights Boulevard

Houston, Texas

Tel: (713) 864-9000

Fax: (713) 864-9006

We have had several calls through the TCDLA hotline where members were faced with prosecutors threatening to file additional charges if the defendant did not plead. When faced with this situation, remember Rule 3.09, which forbids a prosecutor from threatening to prosecute a charge where the prosecutor knows it is not supported by probable cause. Have these rules handy to show them when you get these threats.

Remember these few tips to help yourself be a good lawyer:

  1. Remember your oath is to zealously defend your client, not to be buddies with the judge or the district attorney.
  2. All conversations in jail or conference rooms at the courthouse may be taped—they will probably not be admissible as evidence, but may be used by your opponent.
  3. If relevant, have your client sign releases for you to obtain their information. HIPPA, business records, school, military, etc. These records can help your case. It takes time to get these records, so start as soon as possible after you identify the need for them.
  4. Keep a log of all jail visits and have your client sign waivers allowing you to discuss the client’s case with the client’s family and friends.
  5. Always investigate and interview witnesses immediately. Tape-record all of your conversations with witnesses—do not assume anything.
TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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