The BAT Van Show-Cause Order

 Posted on November 02, 2011 in Uncategorized

Here (PDF) is the order requiring one of two Harris County prosecutors to appear before the 185th District Court, along with two grand-jury court reporters, next Monday

to show cause why he should not be held in contempt and/or sanctioned under the Court's inherent powers for (1) violating this Court's October 18, 2011, order denying the Harris County District Attorney access to the Harris County Grand Jury for the 185th District Court, August Term; (2) violating this Court's October 26, 2011, orders disqualifying the Harris County District Attorney and her office from participating in the 185th Grand Jury's investigation of possible criminal conduct by members of the Harris County District Attorney's Office; and (3) violating Chapter 20 of the Texas Code of Criminal Procedure.

Why?

It has now come to this Court's attention that members of the Harris County District Attorney's Office may be in possession of official transcripts of testimony from witnesses who appeared before the Harris County Grand Jury for the 185th District Court, August Term.

If the court reporters provided the prosecutors with transcripts of proceedings after the DA's Office was disqualified, the court reporters arguably violated Article 20.02(b) of the Texas Code of Criminal Procedure. Violations of 20.02(b) are punishable as contempt with a fine of up to $500 and up to 30 days in jail. But punishing court reporters for providing transcripts to prosecutors in these unprecedented circumstances (in which the court reporters were not specifically ordered not to provide transcripts to the prosecutors) strikes me as petty and tyrannical.

Receiving transcripts revealed in violation of 20.02(b) does not itself appear to be a violation of 20.02. If I'm correct, then the two prosecutors' liability would depend on the orders of 18 October 2011 and 26 October 2011. For violation of an order to be punishable as contempt, it "must carry with it no uncertainty, and must not be susceptible of different meanings or constructions, but must be in the form of a command, and, when tested by itself, must speak definitely the meaning and purpose of the court in ordering." Ex parte Duncan, 62 S.W. 758 (Tex. Crim. App. 1901). In this case, in order for the prosecutors' possession of transcripts to be punishable as contempt, they would have to have been clearly ordered not to receive or possess those transcripts.

Both of the orders are attached to the show cause; neither orders the prosecutors or the DA's Office to do anything. It is not a command; it does not speak definitely the meaning and purpose of the court in ordering it. It doesn't satisfy Duncan's requirements. Neither the lawyers nor the court reporters can legally be held in contempt for violating those orders.

Now, I haven't given this the time that I would if I were representing the alleged contemnors, but it doesn't appear to me that the lawyers' actions violate any part of Chapter 20 of the Texas Code of Criminal Procedure. (If they do, the show-cause order fails because it isn't sufficient to give the alleged contemnors notice of the accusation. In a constructive-contempt proceeding like this one, due process requires "full and complete notification" of the contempt charges, Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969), and this show-cause order ain't it.)

Like Murray says, Monday is going to be an interesting day. Carl, Steven, if you're reading this, please get independent counsel now. Contempt is serious stuff, and there are dozens of good criminal-defense lawyers who would happily advise you and go to bat for you.

(Shameless Harris County Criminal Lawyers Association plug: HCCLA's Strike Force, which I head, does this sort of work for HCCLA members regularly as a membership benefit. If you're a criminal-defense law, and not a member of HCCLA, join.)