Posted on
June 7, 2013 in
From MySanAntonio.com:
A Bexar County assistant district attorney has been fired following an incident in which she was mentioned in a friend’s driving while intoxicated arrest report for advising him not to submit to a breath test.
She’s also accused of badging the arresting officer. And “P then told (him) to take a personal recognizance bond that she had in the wallet that contained her identification and badge.” (Wait, what? Prosecutors get to carry get-out-of-jail-free cards? To share with their friends?)
But it’s apparently the good legal advice she gave that got her canned:
As for advising her friend, it was a mistake that she has paid for with her job, she said.
This prosecutor must be punished. Because imagine what would happen if people learned that even prosecutors advised their friends not to blow.
Typical. Wish we could all hear the words that came from the mouth of Lester Blizzard the night he got popped for DWI driving home from a Galveston gay bar, which cost him his job and apparently his close friendship with Warren Diapramm as they haven't been spoyyed together since…
Why, Mike? Why?
Hold on, though. Advising her friend at all presents a huge problem if you think about it for a minute: as a prosecutor, she is a lawyer who represents the State of Texas in criminal prosecutions in Bexar County. As much as it sucks, she was well aware that her client was investigating–and probably about to sue–her friend. And despite the fact that she represents the party that is about to sue her friend, she is giving her friend legal advice on how best to defeat her client in the impending litigation.
It sounds to me like a pretty clear conflict of interests. she chose to elevate her loyalty to her friend above the duty of loyalty that she owed her client, and she paid for the mistake with her job. Most other lawyers would pay with their licenses if they were found to be advising their clients’ opponent on how best to prevail against their client.
I’m not here to tell you that this was the thinking behind BCDAO’s decision to fire her, because there’s more than a grain of truth to your final paragraph. But I think it’s the right result. Frankly I’m torn between whether to applaud her loyalty–and honesty–to her friend, or be appalled by the betrayal of her client. If her client was anyone other than the governent, the latter is a no-brainer
As for the badging, she claims that the officer asked her for ID and, when she opened her wallet to retrieve her DL, he saw the badge and asked her who she worked for. Every prosecutor I’ve asked keeps their DL in the same wallet that has their badge and county ID–although we have talked about the “added benefit” that carrying a single wallet has. I have spoken to a prosecutor I trust who has read the OR, and he says that the officer’s account is generally consistent with her claim.
I have also heard for a while that the bondsmen in Bexar aren’t nearly as strong as they are here, and so PR bonds are not at all uncommon. That said, handing him the form seems to go back to the problem of advising your client’s opponent.
The government isn't a "client". There is no attorney client privilege between the government and one of its prosecutors. She doesn't have a client at all.
Such a misconception. Ugh.
Sounds like she was prepping for her defense attorney position. I disagree that she was undermining her client’s interest. The police officer is not her client and at any rate a blood sample is often more ironclad than a breath test, which could possibly help in the prosecution. It is pretty petty to fire someone for this. Just another reason we need a good runner-up for the next elections!
Well, this "infraction" is nothing compared to a trial taking place where the Defendant (A Dr. accused of raping patients) passed a polygraph test where he said had a you-know-what kind of relationship with the elected DA Susan Reed. Of course Reed will not take a polygraph test and did not blink an eye or give thought that she should recuse herself and her entire office from the case. https://www.mysanantonio.com/default/article/DA-denies-accused-rapist-s-one-night-stand-claim-4577660.php Scandalous what's going on in the Alamo City!
I never said she represented the cops, but she most assuredly had a client and that client was the State of Texas:
“[Tex. Code Crim. Proc.] Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. …”
The fact that prosecutors do represent the governent is the reason that their duty is to seek justice, rather than convictions, as Justice Sutherland explained:
“The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
The issue is not that she represented the cops, but that she knew–or should have known–that these particular cops were very likely going to seek charges against her friend. If those charges were accepted by the DA’s office, her client would be filing a lawsuit against her friend (The State of Texas vs. Young ADA’s Friend). When a lawyer knows that his client is likely to soon file a lawsuit against a person, that lawyer cannot–within the bounds of our rules of ethics–advise the potential defendant on how best to win the suit. Were she a civil lawyer advising her friend how best to avoid a credit card debt after she’d learned her credit-card-company client was about to file a collection suit against him, she’d be fired without hesitation and reported to the State Bar.
Did she give good advice? Yes.
Did giving that advice get her fired? Yes.
Does an ADA have any business advising a criminal defendant about anything related to his case? Absolutely not.
Commendable logic, but nonetheless wrong!
Side A (State of Texas, prosecutor)
vs.
Side B (defendant)
=
attorneys representing each side, with client.
THE missing link is that there’s no “vs.” yet;. It’s still only a police investigation so far, not even probable cause yet!
So, driver 1. hasn’t been arrested, 2. hasn’t been Mirandized, 3. hasn’t been charged with a crime, 4. no Complaint or Information filed yet, not even a Summons, *5. NO CRIMINAL CASE filed.
Therefore, from the equation above, Side B is missing. Thus, the part after the “=” sign (i.e.,a duty to client) doesn’t exist, and may never exist without guessing about probable cause.
Now that’s ironclad, sound reasoning!!!
(remember, a formal criminal CASE against a defendant doesn’t even begin until arrest, then criminal charges are filed – a criminal case bow exists. Before arrest, there is no State v. Doe, i.e., no adversarial parties!)
D”an ADA have any business advising a criminal defendant about anything related to his case? Absolutely not.”
That’s the BIG PROBLEM, what case?!!! There IS no case. There’s only a case AFTER arrest!
“There is no attorney client privilege between the government and one of its prosecutors.”
Just reread and noticed that line.
This isn’t about privileges (although I guess it is, in the word’s other sense). It is about the duties that a lawyer owes his clients, and how those duties sometimes call on us to do (or refrain from) things we otherwise would not. You have to elevate your clients’ interests above your own. (The law recognizes that this may not always be possible, which is why there is the concept of the automatic conflict of interest: we will simply not allow you to put yourself in certain too-tempting positions.)
As a criminal defense lawyer, it’s hard for me to say that anyone knowledgable in the matter shouldn’t try to help their friend in what is about to become a very unpleasant situation. But as an ADA, she had no business advising a defendant on his imminent prosecution–especially in her own county.
PS–For what it’s worth, there is a clearly-recognized work-product privilege even for prosecutors in Texas. Communications between the cops and the DA aren’t privileged because the cops aren’t the DA’s client. But prosecutors do have a recognized privilege by virtue of being [the government’s] lawyers.
I agree this is not about privileges, as such. I most emphatically disagree, however, that the story about this prosecutor has anything to do with "the duties a lawyer owes to his clients".
Let me complete the chain of reasoning for you. If the State was the prosecutor's "client", the attorney client privilege would apply. The fact that the attorney client privilege does not apply is therefore proof that the State is not the prosecutor's client.
No doubt the State takes a position in criminal litigation, and the prosecutor advocates that position. But that doesn't make the State the prosecutor's client. The State is supposed to be disinterested in the outcome of the litigation. That idea, imperfectly though it exists in practice, it one reason there is a perceived credibility gap between the prosecution's evidence and the defense's.
One corollary to all this that is also important: the State has no "rights" that the prosecutor is there to protect. I've heard prosecutors claim a "right" to a fair trial for their "client". Totally wrong. The State doesn't have or need rights; it has power. It is those in the State's cross-hairs that are entitled to rights.
Mark, I'm interested in your response, if any, to this comment.
In the "interest of justice" the same DA allows DWI charges against a staffer's son to be dropped. It pays to have friends in the DA's office and everyone, EVERYONE knows it. Why does anyone pretend it's not true: https://www.ksat.com/news/dwi-case-against-da-staffers-son-dismissed/-/478452/20406904/-/koktl8z/-/index.html
I have to agree with Mike Paar, there are tons of stories like this one that we act like it’s such a scandal when it happens yet these things happen more often than we would like to admit.