“The job of the State’s attorney is to seek justice, and if we’re trying a case it is because justice demands a conviction.”

“Ann.Tex.Const. Art.5, Sec. 21. “The overwhelming importance of the offices of public prosecutors arises from the fact that upon the prosecuting attorney rests the power of determining whether prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful conclusion.”

Maybe it’s me, but when did “successful conclusion,” which could mean an acquittal as well as a conviction, change to “demands a conviction?” I’ve googled it and come up empty?? Black’s Law was no help either?

Any help?

Mark writes a post and he gets a one-act play written about him.

Right now my brain hurts so I’m emailing AHCL to have the beer instead of Mark.

First, great job. You write dialogue quite well, truth be told. (I felt the cops, in particular, were written true to life.) Second, the Houston Chronicle published the salaries of District Attorneys so we know how much you guys make, and it seems to be more than $60,000 for many of y’all. Third, even $60,000 is a heck of a lot more than many attorneys make, particularly legal aid attorneys and the like. Fourth, you’ve described a great world, if a bit exaggerated. Whatever makes you think I would have wanted the story to end with a guilty verdict!!?

Let this be a lesson: living by principles (and constitutional norms) does require inconveniences. It may even require guilty people to go free! Didn’t somebody once say something about that?

I can’t wait for 2019 and the Police Liability Act! Hopefully Bennett’s already got a draft.

Scene I
A convenience store, daytime, the year 2021. PJ is calling 911.

PJ: Help, I’ve just been robbed at gunpoint!
911: I’m sending the police. It could be a while.
PJ: Can you please make sure to send some honest officers? I can’t stand it their constant lying.
911: Excuse me?
PJ: Um, never mind. Just hurry up!

(An hour and a half later)
Sgt: What seems to be the problem?
PJ: A guy just robbed me at gunpoint! I can give you a description. He took everything in the safe!
Sgt: Were there any other witnesses?
PJ: I — I don’t think so.
Sgt: Well, I’m sorry, sir, but we can’t really do anything with just your testimony. Eyewitness testimony is the least reliable form of evidence. Ever since Gov. Bennett signed the Biblical Evidence Act of 2019, we’ve needed at least 2 witnesses for everything.
PJ: Are you kidding? The guy just stuck a gun in my face! Are we going back to stoning? That’s in the Bible, too!
Sgt: Just the facts, sir. Do you have any security cameras?
PJ: No, I was using the system to upload something to YouTube.
Sgt: What about DNA, do you think the guy left any?
PJ: I doubt it. How would I know?
Sgt: Sir, there’s nothing I can —
Robert Guest: Wait a minute, I’m a witness!
Sgt: Huh?
Guest: I was hiding behind the corn-nuts. I saw the whole thing!
Sgt: Got lucky on that one. SCTexas! Get over here!
Ofc. SCTexas: Sarge?
Sgt: Get descriptions from both these guys and put it out on the radio. Then do a sweep of the area.

(Ten minutes later)
Ofc. SCTexas: (bringing in Defendant) Sarge, I got him! Fits the description perfectly!
PJ: That’s him! I recognize him! No doubt in my mind.
Sgt: (to RG) What about you?
Guest: Yeah, I think that’s him.
Grits-For-Breakfast: (bursting in, out of breath) I saw the whole thing. Worst case of police brutality and harrassment I’ve ever seen! This guy just grabbed him off the street for no reason!
Ofc. Texas: He fit the description! They just IDed him!
Grits: You can’t intimidate me with your Gestapo tactics. You don’t attend UT without graduating and not learn something about courage.
Ofc. Texas: You’re nuts! Get out of here!
Sgt: Not so fast, Texas. We have to put his name in the offense report. Or else we could get sued.
Ofc. Texas: But he didn’t see anything! He didn’t witness the robbery or anything to do with it. He was digging in a dumpster, for crying out loud!
Grits: That dumpster provided the perfect cover. And besides, there was a perfectly good cheeseburger in there, barely touched–
Sgt: Doesn’t matter. Ever since Gov. Bennett signed the Police Liability Act of 2019, our asses are in a sling. Take his name down.
(a few minutes later)
Sgt: (to Defendant) Okay, pal, we’ve got your ID info. You’re free to go.
PJ: What? Aren’t you going to arrest him? He just robbed me?
Sgt: I don’t know where you grew up, son, but around here we have something called the presumption of innocence.
PJ: That’s for the courtroom! He just robbed me! He had a gun! He’s a dangerous criminal!
Sgt: It’s not our place to decide that. That’s what juries are for.
PJ: Aren’t you going to at least search him for evidence? He might still be armed.
Ofc. Texas: Already checked. No gun. But he did have THIS (holding up bankers bag)
PJ: That’s my money!
Sgt: (to Texas) Make a note of that. (Handing bag to Defendant) You’re free to go.
PJ: You’re letting him have it?
Sgt: We don’t have an authorized forfeiture order for it. Ever heard of the 4th Amendment? That’s considered an unreasonable search and seizure now. And besides, how do we know it’s yours?
PJ: Because the bag says “PJ’s PrestoMart” on the side.
Ofc. Texas: He’s got a point, Sarge.
Sgt: Alright, then. (Opens bag, empties $17500 in bills out and hands money to Defendant, then hands bag to PJ) You’re free to go.
PJ: But that’s my money!
Sgt: A jury will have to decide that, pal. Everything in its place.

Scene II
A grand jury room

ADA: And, so, ladies and gentlemen, I would respectfully submit that it is possible there could be probable cause to indict Mr. Defendant for the offense of Aggravated Robbery.
GJ Foreman: So he did it?
ADA: I can’t really comment on that.
GJ Foreman: But you’re saying that the evidence supports a conviction, right?
ADA: It’s not my job to decide that, sir.
GJ Foreman: But aren’t you supposed to see that justice is done? What does that mean in this case…a truebill?
ADA: In the old days we used to ask for truebills, but I can’t really do that now. Ever since Gov. Bennett modified the C.C.P. 2.01 and changed the annotations to the Constitution. We used to be able to ensure that cases were “pushed to a successful conclusion,” but now we just let juries decide.
GJ Foreman: You guys are the biggest bunch of wussies I’ve ever seen. Absolutely pathetic.
ADA: Thank you, sir.

Scene III
A courtroom

PJ: Are you the prosecutor handling my case?
ADA: Are you a defendant?
PJ: No, I’m a victim. I got robbed and the guy is being tried today. You sent me a subpoena.
ADA: Sorry, just thrown off by your terminology. It’s not really “your” case. It’s his, since his liberty is at stake and his rights are the focus.
PJ: Fine. So, we’ve never talked. Did you want to ask me anything before putting me on the stand?
ADA: No, not really. The evidence is the evidence. I’m just going to present it and let the jury sort it out.
PJ: But don’t you want to prepare me?
ADA: That could be considered “woodshedding” and is specifically prohibited by C.C.P. 36.051, “State Shall Not Woodshed.” Don’t you remember? Gov. Bennett pushed that one through.
PJ: Which Gov. Bennett?
ADA: Jennifer. She beat Mark to it.
PJ: But what about my rights as a crime victim? Don’t I get any say in what happens here?
ADA: (laughs grimly) They repealed Sec. 30 of the Texas Bill of Rights years ago. Nobody has any rights anymore except defendants.
PJ: So how is the case looking?
ADA: Not so great. He’s got a hotshot defense attorney — ex-DA, I think. I had to turn over data on other aggravated robberies in Houston to him. There were 116 convenience store robberies in the last 2 years involving suspects with the same general descriptors as this defendant and the same m.o.
PJ: M.O.?
ADA: Yeah, they all pointed a gun at the clerk and demanded money. And they were all males. Pretty eerie, huh? Some were committed while this defendant was serving time for another aggravated robbery he committed out of state. So they’re going to argue mistaken identity.
PJ: But there’s no doubt in my mind he did it. They’re not suggesting some other dude committed all of these robberies, are they? That’s ridiculous.
ADA: Sure they are. And I had to turn the data over. 116 other robberies is pretty powerful stuff.
PJ: 116 robberies is living in Houston! And didn’t they convict any of these other robbers?
ADA: Actually, no. That’s pretty rare nowadays.
PJ: But that’s totally irrelevant to my case!
ADA: –His case.
PJ: –Whatever, the point is, you should object!
That’s not relevant and not exculpatory!
ADA: Sorry, but I can’t take that chance. The Prosecutor Accoutability Act of 2018 says I can go to prison for hiding or even objecting to exculpatory evidence — that’s in addition to civil liability.
PJ: Then why are you prosecuting? Why would anyone want to do what you do?
ADA: Beats me. Especially for $60,000 a year. I’ve got an application in to cosmetic school.
PJ: My God, is that the jury panel? Some of those folks look pretty rough.
ADA: Yeah. Too bad I don’t get any strikes anymore.
PJ: Do you want me to draw a scene diagram, something to show the jury?
ADA: No, that could be construed as advocating for one side or the other. That would be a gross violation of my ethical duties.

(A few hours later. Closing arguments have begun and the defense is up.)

Def Atty Tarian: Members of the jury, this case is a complete farce. You’ve heard that 116 other robberies were committed in Houston in the last 2 years with the same m.o. by a male fitting the description of my client. Using sophisticated statistical analysis, that means there is less than a 1% chance that my client is guilty! In essence, I have proven him innocent beyond a reasonable doubt! Clearly, we have a serial robber at work. But that person is not my client. What we have here is a case of mistaken identity. And you are being asked to send a man to prison based on the feeble testimony of that man! (indicating)
PJ: But I saw him!
Judge Ollie: Order! Bailiff, if that man makes another outburst, I want him removed.
Dep. AHCL: Yes, sir.
Def Atty Tarian: As you know from my experts, eyewitness testimony is inherently unreliable. There are thousands, maybe millions of innocent people in prison as a result of it. And millions more convicted every day. But not today. (standing behind Defendant) Not this man. The travesty ends today. You’re going to end it. With your verdict of Not Guilty. (sits down)
ADA: Members of the jury, you have seen all the evidence. I can’t really tell you what you should do based on that evidence, but it definitely supports the fact that an aggravated robbery took place. I ask that you take everything you’ve heard into consideration and render a verdict that is just. Unfortunately, I’m not really allowed to define what “just” would be in this case. Thank you.
(sits down)
PJ: What about a plea for law enforcement? What about arguing for your side?
ADA: My only side is the side of justice — whatever that is. And we’re not allowed to plea for law enforcement anymore. It’s not my place.

(2 1/2 minutes later)
Judge Ollie: Has the jury reached a verdict?
Foreman: We have, Your Honor.
Judge Ollie: Please hand it to the bailiff. And, bailiff, please pass out my cards to the jury.
Dep. AHCL: Here ya go. Man I need a beer.
Judge Ollie: The verdict reads as follows, “We the jury, find the Defendant Not Guilty. Signed, “WTF??? Foreman.”
PJ: This is an outrage!
Def Atty Tarian: If you think this is bad, wait until you see the lawsuit my client is going to file against you.
PJ: But I’m already on the verge of bankruptcy!
Def Atty Tarian: Maybe Ron in Houston can help. Oh, no, I guess he does mostly family law stuff. Oh, well. Sucks to be you!

THE END

When the prosecutors have managed to convince the courts to ignore the last of our constitutional protections (with the consent of the majority, no doubt, if you seek it), that’s what we’ll have.

Innocent people who are harmed by the government’s violation of the constitutional rules don’t get to complain about it in the government’s courts because the government has made itself virtually immune to suit in those courts.

The founders didn’t get together and say, “hey, now that we’ve kicked out the Crown, a government would sure be a good idea; let’s make one.” They got together and said in effect, “now that we’ve kicked out the crown, some sort of government is inevitable; since it’s going to happen, let’s make it as ineffectual as we can.”

Unfortunately, governments have learned to use fear to get the people to do their bidding. There’s little hope that the People, so manipulated, will turn things around before the last Constitutional right has been declared quaint and old-fashioned.

I don’t really care what the commentary for Vernon’s Texas Constitution says, but I think it supports what I have said far more than it supports your position. (I would simply omit the word “successful” and it would perfectly encapsulate what I’ve said. Nowhere does what you quoted suggest the prosecutor’s role is to determine who is guilty.)

I generally dislike the idea of plea bargains altogether. The government should be put to its burden of proof in every case. Plea bargaining only exists because our society has decided to make criminals of so many people that it can no longer keep up. It’s hardly ideal, but there is no way to effectively fight it since a defense lawyer has to do what is in his individual client’s best interest rather than make systemic challenges that might help more people at the possible expense of his current client. It’s just one of the many ways the system is rigged.

On the specific point, a plea bargain occurs with the defendant’s consent and is made for the purpose of avoiding a trial, so I fail to see how that contradicts anything I’ve said. A plea bargain to avoid trial can occur even if the prosecutor has only decided the evidence is sufficient to go to trial. It does not require the prosecutor to decide that justice demands a conviction.

It’s hardly worth responding, but you might take a look at the commentary for Vernon’s Ann.Tex.Const. Art.5, Sec. 21. “The overwhelming importance of the offices of public prosecutors arises from the fact that upon the prosecuting attorney rests the power of determining whether prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful conclusion.” In your world of meek, passive, “conduit” prosecutors, that would, of course be impossible. And I guess we better do away with plea bargains, too, because they “invade the province of the jury.” Ridiculous.

Mark,

My point is that, contrary to the position that you have triumphantly taken numerous times on this website, the State DOES have rights, and if you don’t believe me, check out the Bill of Rights to the Texas Constitution, Art. 1, Sections 10 and 30, for starters. That’s what you’re calling “utter nonsense.”

And no, the State doesn’t “make the rules.” PEOPLE make the rules, through their duly elected representatives. Some people seem to be of the opinion that this, in itself, is unfair. As always, in a country where the rule of law reigns, people have the constant recourse of the court system when they believe their constitutional rights have been violated. Strangely, it seems to be almost exclusively criminals who complain. Failing that, I guess there’s always revolution…

The emotional truism of “might does not make right” has no relevance here. Your arguments never seem to take into account where our authority comes from: The constitution and the duly enacted laws of the people. The might of the State comes FROM the people, is authorized BY the people, and is used FOR the people. The people against whom that might is used quite naturally don’t like it. But that doesn’t make them right.