Prosecuting a “Bullshit Case”

Upon commencement of his employment, every prosecutor in Texas takes an oath to uphold his “primary duty…not to convict, but to see that justice is done.” Lest there be any doubt that this duty encompasses justice for the accused, the law goes on to explain that prosecutors “shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (see Texas CCP 2.01.)

The way I read it, the duty necessarily means that a prosecutor should also refrain from prosecuting cases that lack merit. I took that duty very seriously during the short time that I was a prosecutor. But not everybody sees it that way, as I was reminded last week.

The incident involved a felony case in which my client, “John,” who’s in his 40s and has no prior criminal history, claims that he was framed.  He was arrested along with another man, “Roger,” who was a stranger to John until the night in question. According to John, Roger approached him at a convenience store, offered him $20 for a ride, then talked his way behind the wheel. After driving to the area where he supposedly needed a ride, Roger suddenly started driving like a bat out of hell until he attracted the attention of law enforcement and was stopped for a traffic violation. As Roger pulled the car over, he threw a bag of weed at John, saying “I have a felony warrant–I can’t have this on me!”

During the stop, Roger was arrested on the warrant and John’s car was searched. In addition to the bag of weed, the cops found drugs in Roger’s backback, which he had stashed in the trunk before the two men left the convenience store. The backpack contained a small amount of crack cocaine and no ID. Roger claimed to know nothing of the backpack or the drugs. John was arrested for possession of a controlled substance and possession of marijuana.

After listening to my client’s tale and noting his lack of criminal history (unusual for a crack user at his age), I decided to get an investigator involved. His investigation revealed that Roger may actually be a confidential informant. CI involvement in a drug case is a red flag to a criminal defense attorney because it means a key part of the state’s “investigation” team may have had motive to frame or entrap people to earn some kind of reward (some notorious Texas cases in which this issue came up were Hearne, Palestine, and the Dallas fake drug case; for more depth on the topic, see this Grits for Breakfast article and this academic paper). Such information is also clearly exculpatory, aka “Brady” material, which means that the state is required to turn it over…in a perfect world.

In the real world, however, you’re lucky if a prosecutor agrees that material he doesn’t want to disclose is exculpatory (by definition, it tends to hurt his case) and he’s unlikely to suffer any real consequence for failing to turn it over. Even so, the Travis County D.A.’s office is (hopefully) still smarting from a recent scandal involving a prosecutor who failed to disclose Brady material (see the Statesman coverage for additional detail), so I was thinking that its prosecutors may be a little more sensitive to the issue for a short time at least.

So before I spent a bunch of time trying to get discovery through formal procedures, I decided to see if the felony prosecutor, “Ted,” would cooperate with me. I broached the issue at our scheduled pretrial conference last week and asked him to make inquiries. He initially resisted, so I pointed out that a CI arrangement would be exculpatory and must be disclosed. Rather than respond to my request at this point, however, Ted offered to reduce the charge to a misdemeanor with a sentence of however much jail time my client already had credit for (not much because John had no trouble qualifying for personal bond). Ted stated that if John didn’t accept the new offer, Ted would “have to think about” my request.

Most felony defendants, innocent or guilty, would be tempted by that offer because they could walk away with no jail or probation time while taking a mere misdemeanor conviction, versus a felony conviction and possible prison time if they’re convicted at trial. I’d certainly be tempted if it were me, which is why I was glad the decision wasn’t mine to make. No matter how innocent you are, trial is risky, particularly if someone has done a decent job of framing you. I had explained that to John before and I repeated the warning when I communicated the new offer but he still refused to plead guilty.

When I notified the prosecutor that his offer had been rejected, I expected him to ask for a reset so that he could think about my original request. Instead, he suddenly announced that he was dismissing the case. When I expressed my surprise at the turnabout, he stated that it’s a “bullshit case.”  I probably should have just accepted my client’s good fortune and moved on–I did do the necessary paperwork, use it to persuade the misdemeanor prosecutor to dismiss as well, and send my client happily on his way–but to tell you the truth, the whole thing made me kind of angry.

Don’t get me wrong–dismissal was the right result for my client and I’m glad this ordeal is over for him–but why is a prosecutor trying to get someone to plead guilty to anything when he knows it’s a “bullshit case?” How does he reconcile that with his primary duty “not to convict, but to see that justice is done?” All I can figure is that he’s rationalized away his duty when it comes to defendants.

Whatever his rationale, the real injustice in this situation lies not with my client but with unknown individuals who have already fallen prey to this scam or who will do so in the future. It was too smooth to be the first time and it’s unlikely to be the last.

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