Lawyer (and HCCLA member) Sesha Kalapatapu wrote a short essay—apropos of Brian Wice’s op-ed criticizing a prosecutor’s post-trial conduct and the prosecutor’s response—which I thought was too good not to share (with Sesha’s permission, of course):

Nobody really knows what Brian “did” or “didn’t do,” or what Nathan “did” or “didn’t do” unless you were there. All we can rely on is the first person account statements that Brian and Nathan gave. Here’s what the accounts tell us as facts we can rely on, though:

 

It’s clear that the jury did not convict because they found the complaining witness to be credible enough to convict. It’s clear, from Nathan’s own account, that Dick DeGuerin was talking to the jury about that very subject, the complaining witness’s credibility – i.e., what a “psycho” she was according to Nathan. It’s not clear if Dick was talking about facts outside the record, but it’s a fair assumption that he was only discussing evidence that the jury had already heard and considered relevant to the outcome. This is all fair and proper post-verdict conduct – ask the jury about the facts they received and how their weighted it, and possibly even tell the jury how you agree or disagree with how they weighted the evidence they heard. 

 

By contrast, It’s clear that Nathan interjected because he believed it to be his “duty to explain the truth,” and by “truth” he meant the facts that the jury WAS not allowed to consider. And that’s the problem entirely — he has no such “duty to explain the truth” and in fact, he has an affirmative duty NOT to explain the truth to the jury in a manner inconsistent with the Court’s limine instructions. Even if his purpose was not to embarrass the jury or to influence their future behavior, the entire body of Texas lawyers (not just the criminal defense bar) has already accepted and codified the principle that such “truth telling” behavior is in fact harmful to the process for reasons already discussed. 

 

So, whether he should or should not have done it isn’t a debate at all. He should not have done it, and should be held accountable for it when he admits that he did it, and especially when he clearly indicates that he would do it again. Would any of us engage in a debate on barratry if a lawyer said, yeah I solicited a client, but I turned out to be the best lawyer for the client, I gave him a great outcome and so I’m not sorry and I’ll do it again? Of course not. If you or he or anyone else wants to have a debate about the injustice of it all, pull a Thurgood Marshall and get the entire body of Texas lawyers — not just criminal lawyers, mind you — to change the Disciplinary Rule. Until then, the rest of us have a right to be outraged by his unapologetic attitude about the whole subject. 

 

And lastly, I’ll be honest here – I was equally offended by his final comment about standing up for what’s right “even if it isn’t easy.” Really, Nathan? Pick any cross section of defense lawyers, and I guarantee you would find people who really, truly stand up for what is right even when it isn’t easy. The lawyers who report judicial misconduct and then go back into those same courtrooms. The lawyers who don’t get paid but still doggedly defend their clients. The lawyers who couldn’t get in exculpatory evidence, and then have to swallow the fact that their clients are going to jail while they desperately try to make sure they preserved the appropriate appellate arguments. The lawyers who sacrifice family and livelihood because otherwise, they would have to live with knowing that their mistakes could put innocent people in jail. These are all things that are right but not easy. Next time, please compare that with the difficulty of KEEPING YOUR MOUTH SHUT WHEN YOU LOSE, because I honesty don’t see what’s so difficult at all. Especially when there’s a rule that requires you to keep your mouth shut. 

 

Prosecutors who lament the fact that it is “difficult” to put someone in jail are NOT people standing up for what is “right.” They are the people who chip away at our constitutional rights, bit by bit, until it’s “easy” to put any innocent person in jail, not just the people who are found guilty based on credible evidence presented in a truly adversarial context.

No disclaimer needed. Sesha’s a really smart guy, and he nailed it.