Tuesday, October 19, 2010

A rare beast and a self serving excuse

There's been a remarkable sighting: That rarest of beasts, a Texas prosecutor convicted on misconduct charges! A divided Texas Court of Criminal Appeals upheld a conviction for improper influence by a prosecutor after the Kleberg County Attorney attempted to intervene to avoid charges against his aunt, reports Liberty and Justice for Y'all.

LJ4Y quotes Judge Keller's dissent, which sounds particularly adamant, as though she's feeling her oats after appellate judges overturned misconduct findings against her by the State Commission on Judicial Conduct: "If a defendant tries to get his aunt’s case dismissed because he wants to help his aunt, has he committed a crime?," she asked. "The Court says yes. I disagree. I think it is what the defendant says, not what he thinks, that makes an attempt to influence a public servant improper." Uh huh ... sorta like when you say "We close at 5" but what you're really thinking is "F-you David Dow!"


Alex S. said...

What a ridiculous prosecution. It went all the way to the CCA? Goodness gracious. This statute is so overbroad. If I as an attorney, in my effort to get my client's case dismissed, tell the prosecutor that my client is a good kid on the football team who comes from a good family, then I guess I am guilty of this idiotic law. My argument is not a legal defense so it falls within the purview of the statute. I can't believe that wasn't raised at trial. Yet another Grits article that raises my blood pressure.

Anonymous said...

I'm just shocked, SHOCKED, that Grits seems to be celebrating the conviction of anyone! It's refreshing to know that there's at least one category of offenders that he's willing to believe are really guilty! Miracles never cease!

Anonymous said...

I think most defense attorneys, but apparently not this prosecutor, stop short of calling the pretrial offense and lying to them, saying the case would not be filed, after telling the DA that the officer who made the arrest is under investigation. The law may be overbroad, but I'm thinking this case falls within the spirit of the law.

As for Sharon Keller, does anyone actually read her BS opinions anymore? The best think she could do for a cause she believes in is keep her mouth shut. That would lend it some credibility.

Mike Howard said...

Alex - generally I agree that the Texas Penal Code criminalizes too much conduct, but IMO the Improper Influence statute (Sec. 36.04 Penal Code) is actually a sensible one. In your scenario the operative word is your client. If you're talking to the prosecutor on behalf of your client then you're representing him in an official attorney-client capacity - not "privately" addressing the prosecutor. And permissible argument isn't constrained to legal argument - any mitigating factor (age, good deeds, intelligence, hard luck story, et cetera) is fair game. The statute is really aimed directly at the influence peddling and back-channel dealing we don't want involved in our justice system.

Gritsforbreakfast said...

Yup, Alex S., your complaint sounds a lot less credible if you substitute "my aunt" for "my client" and the elected county attorney for defense counsel.

12:52, there are many offenders I believe are really guilty, it's just the system deals in such volume they catch some innocent ones, too. That's not a big problem regarding charges of prosecutorial misconduct, which are almost never pursued even when courts find willful violations.

rodsmith said...

well i figure what's good for the goose is good for the gander....DA's and law enforcment are legally allowed to LIE, CHEAT, STEAL, so why can't the opposition?

sounds like they are just made someone got one over on them using their own procedures.