Tuesday, October 13, 2015

Of Offers, Acceptance and Personal Animosity

For the most part, I typically don't write about the day-to-day run-ins that I have with prosecutors.  Disagreements with the State are par for the course in an adversarial system and most of them don't merit a blog post.  As a general rule, I don't write about the particulars of my cases, and I don't write about the particulars of the fights I get in.

However, sometimes there are exceptions to that rule.  

A few weeks ago, I was handling the case of a friend of a friend of mine in a misdemeanor court.  He had been charged with an assault case and a criminal mischief stemming from the same incident.  At trial, he had been acquitted of the assault, but convicted of the criminal mischief and placed on probation.  By September, a Motion to Revoke had been filed on his probation and I went to court with him.

The Motion to Revoke was based largely on delinquent fines and fees, but I knew that a failure to attend anger management allegation was probably not going to sit well with the Judge.  My primary goal in going to court with him was to see if the Judge was willing to entertain the idea of letting him catch up on anger management and not revoke his probation.  

When I got to court, the CLO told me that in addition to the fines, fees and anger management, the Complainant on the cases had been calling in and claiming that my client was threatening her.  I was surprised, because that was not written in the actual Motion to Revoke.  Ultimately, I was told that I needed to speak with the Chief of the court.

This was where things began to go south.

I had met the chief in passing during the time he was serving as a Felony Three, but I didn't really know him or even his name.  All I really wanted to do in talking with him was get an assessment over whether or not it would be a realistic option that my friend would be staying on probation.  I handed him the file and sat down next to him at counsel table.

"I know this case," he said.  "He's been threatening her."

"That's what I keep hearing, but I don't see that alleged in the Motion to Revoke," I said.

"We can amend it," he snapped.  

"Um, yeah, I know you can amend it," I said, "but amend it to say what?  What are the allegations?"

"He assaulted her."

"He was found not guilty of that," I reminded him.

"I'm still going to use that against him," he snapped.

"Well, good luck with that," I said.  "I still want to know how he is supposed to have been threatening her."

"She's been e-mailing me," he said.  He began typing at his computer and pulled up two surveillance photos of my client -- presumably at the complainant's apartment.  Both photos were date and time stamped and preceded my client having been placed on probation -- a fact I pointed out to him.

Not to be deterred, he popped up another email - this one a written email from the Complainant to him.  As we started to read it, the Judge called him up to the bench.

"Can I finish reading this?" I asked him.  

"No," he said.  "You can't."  He then looked at another prosecutor and said, "You make sure he doesn't read this."

At this point, I was both annoyed and amused.  He had begun showing me the email on his own and I asked whether or not I could look at it without him as a courtesy.  When he commanded the other prosecutor to make sure I didn't read it, I initially thought he was joking.

"Seriously?" I asked.

"Yeah," he said, loudly.  "Seriously."  It was embarrassing.

The case got reset that day and we reconvened last week.  After talking with the Judge, it was decided that my friend/client wouldn't be continuing on probation and that he would be spending some time in the Harris County Jail.  I asked the Judge if she had an amount of jail time in mind.  She stated that she wouldn't accept a recommendation of less than 45 days, but that I would need to speak with the chief.  After talking to my client, who said he would sign for 45 days, I approached the chief.

"I need a recommendation on this case," I told him.

"What did the Judge say?" he asked.

"She said no less than 45 days," I said.

"Okay," he said, "then how about 45 days?"

"Sounds great," I said.  "We accept."

He was very polite and began filling out paperwork.  As he was writing, I thought we must have just caught each other on a bad day at the last setting, and I was glad that we were going to work things out.

Then, he began to frown.  

"I remember this case," he said.  He stopped writing up plea papers, marked on the file and tossed it to me.  He had crossed out the "45 days" and written "60 days."

"You offered us 45 days and we accepted," I said to him.

"And now I've revoked the offer."

"You can't do that," I said.  "You made an offer, and we accepted it."

"And now I've revoked the offer," he repeated.

"You can't do that," I said again. 

"I just did," he said.

At this point, the Judge called to him from the bench and told him he needed to quiet down.

He stood up and announced, "I'm sorry, Judge, but this defense attorney here is trying to pull a fast one on me."

It was at this point I got really annoyed.  To my credit, I resisted the urge to tell him I had been the chief of this court before he was old enough to drive.  We approached the bench and I pointed out to him and the court that if he was going to base how he handled the case on emails from the Complainant, then I was probably entitled to see those emails under the Michael Morton Act.  As it turns out, the Complainant had not actually made any claims that my client was threatening her since he was placed on probation.

So, we returned to the issue of the 45 day offer that my client had accepted.

"Maybe you should call the Deputy Division Chief and talk to him about offers and acceptance," I said.

He indicated that he wasn't going to do that.  So, I did it for him.  After a brief conversation, the 45 days was re-offered and re-accepted. 

Now, I don't know if this particular chief missed the day in law school where we all learned about how an Offer plus an Acceptance plus Consideration equals a Contract.  At the risk of sounding 75 years old, back in my day at the D.A.'s Office, if we made an offer and it was accepted, we didn't revoke it.  That was all there was to it.  A deal was a deal.

Additionally, withdrawing a plea bargain offer after acceptance is considered unethical by the American Bar Association.  Standard 3-4.2(c) states: 
"A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present."
There isn't a prosecutor alive that hasn't made the mistake of making a recommendation that they later decided was inappropriate.  It just happens.  Office folklore is filled with people who inadvertently offered 2 years TDCJ on a Defendant who was looking at 25 years to Life.  

You just have to accept the fact that you screwed up and move on.