And The Trail Has Its Own Stern Code

 Posted on April 01,2010 in Uncategorized

There wasn't a breath in that land of death, and I hurried, horror-driven, With a corpse half hid that I couldn't get rid, because of a promise given; It was lashed to the sleigh, and it seemed to say: "You may tax your brawn and brains, But you promised true, and it's up to you to cremate those last remains."

In the criminal courthouse, lawyers generally keep their word. Unlike our colleagues in the civil courthouse (which still smells of cat pee), we don't need Rule 11. We write things down not because we might otherwise change our mind, but because we might otherwise forget. If I tell an adversary that I'm going to do something, I do it; I expect the same from my adversaries.

A prosecutor who lies or doesn't keep his word will quickly (in a matter of minutes, thanks to the marvels of modern technology) develop a reputation for dishonesty in the criminal defense bar. (I suspect that the same is true of dishonest defense lawyers and the DA's Office.)

So what happens when one prosecutor says he'll do something, and another prosecutor in the same office blocks him from doing it?

Prosecutor A, a #2 prosecutor with four years' prosecutorial experience, tells the accused that he's going (with good reason) to dismiss his case. "You don't have to come back to court," he says. The accused leaves. Prosecutor A starts writing up the motion to dismiss, and tells his immediate supervisor, Prosecutor B, with three years' experience, says, "oh, no you don't."

Keeping promises has two components: not saying you'll do things that you aren't able to do, no matter how much you want to; and doing what you've said you would do, no matter how much you don't want to.

Prosecutor A promised to do something that the Harris County DA's Office was able to do, though he didn't know that he would be denied the authority to do it himself.

Prosecutor B refused to do something that the Harris County DA's Office had promised to do, though he didn't make the promise himself.

So if you look at the promise as coming from the DA's Office, Prosecutor B was wrong (for blocking what was promised). If you look at the promise as coming from the individual prosecutor, Prosecutor A was wrong (for promising something he couldn't deliver).

Which is it?

On the one hand, Assistant DAs act on behalf of their boss, the elected DA. So their promises are imputable to the DA, and Prosecutor B was wrong to stop Prosecutor A doing what he had promised to do (and could legally and ethically do).

On the other hand... what? Nobody expects the Harris County DA's Office to have any honor? It's every prosecutor for himself? Nothing any one prosecutor says binds another prosecutor?

I need to be negotiating directly with Pat Lykos?