Ethics and the Law: How to Tiptoe Through the Tulips - By Robert Pelton

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Saturday, March 12th, 2016

Acknowledgments to lawyers and law students who shall remain nameless . . .

Tiptoe through the window
By the window, that is where I’ll be
Come tiptoe through the tulips with me...

If you think the song is weird, just read some of the decisions made by people who are supposed to be minding the store! Judges arrive late to court. Citizens are kept waiting for hours. To some of the Judges it does not matter. They get paid while citizens and lawyers wait around to take care of business. The “Your Honor, can we please get a bond reduction,” “Your Honor, can we please have more time,” “Your Honor, I just had surgery,” “Your Honor, I have a family emergency,” and most pertinent here, “Your Honor, the prosecution has not given me all the evidence” all too often fall on deaf ears.

Many recent events have led to complaints being filed against members of the Judiciary. Some have resulted in Judges resigning, receiving reprimands, or being ordered into counseling. Several criminal law organizations, including HCCLA, have filed complaints. Robb Fickman has filed and drafted many such complaints. JoAnne Musick has authored several articles about the subject. It is a sad state of affairs when 170 citizens were held under million-dollar bonds to SEND A MESSAGE. Many Judges are honorable and take their oath seriously, but many fall short. Something happens when a lawyer puts on a black robe and gets the “Black Robe” disease. For those unfamiliar, it is a unique disease for which a highly specialized group of scientists have been rigorously testing a potential cure but have yet to curb certain side effects: inability to grant PR bonds or an inability to be cognizant of the dynamics occurring outside the courtroom that necessitate a legitimate reason for a continuance. Many lawyers forget the rules of disciplinary procedure apply to Judges as well as other members of the Bar. Complaints may be many, but the actions taken isare small.

It appears that in some parts of the state, prosecutors are not understanding the rules of discovery and Judges are letting this slide. The Michael Morton Act was passed for a crucial life-saving reason. Do not let the prosecutor or Judge tiptoe through the tulips when you are doing everything possible to see what evidence the state is using to prosecute your client. File Motions for Discovery if you believe you have not been given all the evidence. Do your own investigation. Many times there are witnesses who are excluded from the discovery and/or “open file” shared with you.

When “out of the tulips” additional evidence is given to you a few days before trial, have a Motion for Continuance ready, and be prepared to make a record. If you need the forms for a Motion for Continuance, refer back to the online Voice for the Defense article “’Twas the Week Before Christmas,” December 2014 (http://voiceforthedefenseonline.com/story/twas-week-christmas).

The following advice from Bobby Mims is for lawyers facing such unfortunate circumstances:

Be prepared to follow up that motion with a “Not Ready,” and if the Judge does not grant your Motion for Continuance, you may be forced to file a Motion to Withdraw. After that you have done everything you can to get your client the least prejudicial trial, and it becomes the Judge’s problem.

        We used to do this in capital murder cases before the ABA and Texas Guidelines for Capital Defenders were adopted. Now if the Judge does not give us the resources to defend the case, then we do all of the above and force the Judge’s hand.

        One time on a capital case, before guidelines were enacted, we asked for money to follow up on a lead that a third party had committed the crime, but the Judge denied our request for more funds. We announced “not ready” because we could not be effective. The Judge then asked if we’d filed grievances on ourselves for being ineffective. We filed our motion to withdraw and immediately filed grievances with the State Bar on ourselves. The Judge relented and gave us the money. Afterward, my investigators found the guilty party in Kentucky and turned over inculpatory evidence to the state, which promptly had the guy arrested and transported back to Texas for prosecution. He is now serving a life sentence. I later chastised the Judge that defense lawyers are in fact law enforcement officers also. 

        About a year later I got a call from the State Bar asking about the grievance. I told them why I filed it. The State Bar lawyer laughed and promptly dismissed the grievance. I objected to the dismissal and asked for a hearing. She told me that I had no standing since I was both the grievant and the grievee. That was the last that I heard of it.

The Texas Disciplinary Rules of Professional Conduct re­quire prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act.  Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to dis­close, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.

As illustrated by the Voice for the Defense article “The Michael Morton Act’s Undiscovered Country,” January 2016 (http://voiceforthedefenseonline.com/story/michael-morton-act%E2%80%99s-u...), it is evident this Act was created to ensure justice by allowing defense lawyers to “build robust cases” with the timely production of the full array of evidence if only prosecutors and Judges would comply with the spirit of the law. Our justice system should be about getting our clients the best representation and the fairest trial possible. Instead, prosecutors have been allowed to play games, leaving our clients’ futures in jeopardy and defense attorneys with few options. That is why you must know what to do when state prosecutors fail to follow through with timely production under the Rules of Discovery. According to the Michael Morton Act, the prosecutor has a duty to not “discovery dump” on defense lawyers shortly before or on the eve of the trial. This certainly violates the spirit of the Michael Morton Act.

As a starting point for valuable information for this article, Michael Mowla shared the following opinion regarding these issues (http://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-646.aspx):

Opinion 646

QUESTION PRESENTED

As a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyers’ cases?

STATEMENT OF FACTS

A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.

DISCUSSION

Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may agree “that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant[.]” The opinion observed: “Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.” This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the Act amended article 39.14 of the Texas Code of Criminal Pro­cedure to require that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant’s statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor’s file “as soon as practicable after receiving a timely request from the defendant. . . .”

Comment 1 to Rule 3.09 states that “a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant’s guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor.” Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Because article 39.14 requires an “open file” policy by prosecutors without preconditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

CONCLUSION

As lawyer Mims, Mowla, and I can advise you, there may be many thorns you encounter while you are tiptoeing through the tulips. To ethically represent a client, be aware and be prepared when you encounter resistance by the prosecutor or Judge. Remember your oath is to your client, not the Judge or prosecutor.