Butthurt Prosecutrix

 Posted on August 20, 2012 in Uncategorized

A Harris County ADA had been trying to talk to a potential witness. The witness didn't want to talk to her. Feeling harassed, the witness hired me. I told the prosecutor that I represented the witness. The prosecutor tried to subpoena the witness to court.

While the case was technically still pending, the defendant had made a deal. There was no hearing set at which my client's testimony might be relevant. The purpose of the exercise was not to put my client on the stand, but to make it more convenient for the prosecutor to confront her face-to-face.

Here's the "subpoena." It's not signed by the court or the clerk (or, in point of fact, by anyone). It's not a subpoena.

So my client didn't have to go to court. I went for her, though, and explained that my client, not subpoenaed, wasn't there.

The prosecutor was finger-pointingly cross with me. She took it as a personal affront that I hadn't informed her about the problems with the document she was trying to use to get my client (who didn't want to go to court or talk to the prosecutor) to go to court so that the prosecutor could try to talk to my client. If I had told her that the document wasn't a subpoena (she contested that-apparently in her code of criminal procedure a peace officer can issue a subpoena), she would have issued a proper subpoena so that my client would have to come to court, which wouldn't have been in my client's interest.

In other words, this prosecutor waggled her finger at me because, instead of calling her up and explaining the law so that she could more easily waste my client's time in court, I sandbagged her. Trying to subpoena the witness was gamesmanship. She knew she had screwed up and been outplayed, and rather than take responsibility she blamed me. (Her ignorance soon proved much more profound: "She's a witness, I can talk to her.")

I've written before about "subpoenas" that aren't. But that doesn't mean that I've taken it upon myself to educate every Harris County ADA about the law.

A prosecutor ought to know the law and the facts. If you don't know the law applicable to the dispute between us, I'm not going to educate you to make you like me. If I think it'll help my client for you to know the law, I'll educate you, but you are my adversary; part of my job is to put you in the position to make mistakes, and then exploit those errors.

I work hard to know the facts and the law better than you or anyone else in the courtroom, and if I help you fix your mistakes when doing so doesn't benefit my client, I'm not only giving up that advantage, but also putting my relationship with you ahead of my clients.

If you prefer lawyers who put their relationships with prosecutors ahead of their clients, I'm sure you'll find plenty in the criminal courthouse. But I don't intend to be one of them.