Ignorant or Arrogant?

 Posted on March 17,2008 in Uncategorized

There are many reasons people commit crimes: addiction, anger, avarice, arrogance, fear, ignorance, and disease, to name just a few. Typically more than one reason can be identified for the commission of a particular crime. Addiction and avarice, for example, or ignorance and fear.

Arrogance can cause crime if a person know that the rules apply to him but, for some reason, thinks they should not. Ignorance can contribute if the person doesn't know the rules, or doesn't know that they apply to him. Ignorance of the law is, axiomatically, no defense for anyone.

I wrote six weeks ago about a prosecutor filing documents with a trial court with fictitious certificates of service. Such filings violate Texas Penal Code Section 37.10(a)(1), which proscribes "knowingly mak[ing] a false entry in, or false alteration of, a governmental record."

Section 37.10, the "tampering with governmental records" statute, is a classic arrogance-or-ignorance crime. When the law is violated, it's usually either because the actor didn't know that tampering with governmental records is a crime, or because the actor didn't think the rule should apply to him.

Another subsection of section 37.10 provides that a person commits a crime if he "makes, presents, or uses a governmental record with knowledge of its falsity." Which brings us to the crime du jour.

This is a bench warrant. A bench warrant is the Texas state court equivalent of a writ of habeas corpus ad prosequendum or ad testificandum. It serves to bring a person who is in one person's custody to another person's custody to be a defendant or a witness. For example, a witness can be "bench warranted" from one county jail to another, or from the Texas Department of Criminal Justice's Institutional Division (TDCJ-ID, that is, prison) to a county jail. A bench warrant is a government document (just about anything that passes through the government's hands is a government document).

In this instance, you can see that the judge of the 339th District Court ordered Michael Gene David delivered from TDCJ-ID's Michael Unit in Anderson County, Texas to Harris County Jail to serve as a witness in two cases filed against Paul Davila.

The problem, though, is that Mr. David was not "a witness or defendant" in either of Mr. Davila's cases. It's safe to say that he knew nothing about Mr. Davila's cases. In fact, he wasn't a witness or defendant in any case in the 339th District Court. Mr. Davila was brought from TDCJ by a prosecutor who thought he might be a witness in David Mark Temple's case in the 178th District Court. The lawyer wanted to talk to Mr. David, but didn't want to go to the trouble of driving three hours to Anderson County to do so. The bench warrant was false, and the lawyer who caused it to be made (see the law of parties) and used it to get Mr. David to Houston knew that it was false.

So what can the lawyer responsible for this violation of section 37.10 expect when the Harris County DA's Office discovers the falsity?

Indictment for a felony? Tampering is a felony if it is done with the intent to defraud or harm another. The DA's office is able to find the intent to defraud or harm another in an undocumented worker's use of a forged social security card, so the fraud/harm element shouldn't be much of a hurdle, especially since the fraudulent bench warrant in this case appears to have been used to keep the lawyer on the other side of the case from finding out about the witness. The lawyer responsible for that false bench warrant would get indicted, right?

Nope. No indictment.

Well, then, that lawyer can expect to be prosecuted for a misdemeanor? I mean, if the lawyer knowingly caused a false bench warrant to be signed, a misdemeanor prosecution is a slam-dunk, right? The DA's office would certainly file those charges.

Nope. No misdemeanor charges.

Bar discipline, then? The level of proof required for a bar grievance is not proof beyond a reasonable doubt, and tampering with a government document is the sort of thing for which a lawyer might well get his license pulled. So this lawyer might expect to be disciplined by the State Bar for knowingly using a false bench warrant?

Nope. No bar discipline.

Not a darn thing. Well, why not? Because the lawyer in question is Harris County DA candidate Kelly Siegler and, as Kelly explains, "We do it like that every day." "We do it like that every day" is no defense to any sort of criminal charges.

Harris County prosecutors might well do it like that every day, but we don't. While a defense lawyer can ask for a bench warrant just as easily as a prosecutor can, I've never even heard of a criminal-defense lawyer using a bench warrant in an unrelated case to secure a witness's presence in Harris County. What we do when we want to talk to an imprisoned witness is either secure a bench warrant in the case in which the person is actually a witness or, if we don't want to tip our adversary off, we travel to the prison to visit the witness. A defense lawyer would have to be near brain-dead to arrange for a witness to be brought back to Harris County on false pretenses.

When Kelly says that it's okay to cause a judge to sign a document that she knows is false because "we do it like that every day," is she demonstrating ignorance or arrogance? Taking into account the fact that Kelly maintains her "we do it like that every day" rationalization even after article 37.10's provisions are pointed out to her, as well as the HCDAO's cavalier attitude toward other governmental documents (exemplified by the fictitious certificate of service episode and the use of fake subpoenas to summon witnesses to court), I vote for arrogance over ignorance. It's not, in other words, that she didn't know what the law is, but that she didn't really care. When you work for the agency that decides who gets charged and who doesn't, you don't have to play by the same rules as everyone else.