Reprise: Prosecutors and Judges: How is this Possibly Okay?

 Posted on February 27,2009 in Uncategorized

I recently discovered a Motion to Hold Without Bond and an order thereon in the prosecutor's file in a case I was handling. Discovered, despite the certificate of service claiming that the motion had been hand delivered to me 13 days before. (The parties involved will remain nameless, but only because I like them personally.)

The order signed by the judge said that "after hearing and considering the evidence presented", bail had been denied. But there had been no hearing and no evidence presented, and the motion contained untrue allegations that would not have held up to even the lightest scrutiny and would not't have justified denial of bail even if they had. (Short version: the motion alleged that the defendant was under indictment in Cause No. N when he committed the offense in Cause No. N, a legal impossibility.) So we know that the judge signed an order without reading it or the attached motion.

According to the Texas Constitution, an accused can't be denied bail without a hearing. A "hearing" in this context means an actual hearing, with notice, actual witnesses, evidence presented under the rules, and confrontation. (Having read that, you now know something about the denial of bail in Texas that 90% of prosecutors, defense lawyers, and judges do not know. Congratulations.)

We know, since there is no filestamp on the documents and since I discovered them in the State's file, that the State handed the documents directly to the judge, who signed them and handed them directly back.

We also know that the judge did this on the same day that the motion was purportedly hand-delivered to me, without giving me an opportunity to respond on my client's behalf.

So we know that the denial of bail was a violation of the Texas Constitution.

The certificate of service is false. The document was never delivered to me. The prosecutor's justification, when I confronted him with it? "I called you about it."

He hadn't; if he had I would have pointed out that denial of bail was not permitted in the situation. If he had delivered a copy of his trainwreck of a motion to me, by hand-delivery or any other method, I would have pointed out to him and the court that the motion was incorrect, that it did not justify denial of bail, and that nothing else justified denial of bail.

Noting 13 months ago that filing a document with a fictitious certificate of service is a crime and ex parteing a judge is an ethical violation doesn't seem to have done much good. So how about this approach:

The procedural rules are there for reasons.

There's a good reason for the rule that you serve a copy of a motion on the other side before asking the judge to rule on it: so that the other side has a chance to respond.

There's a good reason for the rule that the other side has to have an opportunity to respond: so that the judge doesn't enter an illegal or unfair order without giving someone a chance to tell him that he's about to do so.

There's a good reason for the rule that if you include a certificate of service (the criminal rules don't require it), the certificate of service must be truthful: so that the judge knows whether your adversary has had an opportunity to respond.

There's a good reason for the rule that one side doesn't have ex parte contact with the judge: so that (among other reasons) the judge doesn't get buffaloed into signing unlawful or unjust orders.

If there were a rule requiring judges to read orders before signing them, there would be a good reason for that too.