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.  


Anonymous said...

What court was this in?

Anonymous said...

The misdemeanor people ADA's have lost their minds. I fight everyday to keep from cussing some of them out. Most days i fail and at least two get cussed a day

Anonymous said...

I had a similar run-in in another county. Client was 25 to life on a PCS in a Drug Free Zone and serving out a 30 year sentence from another county. I talked to the prosecutor in her office and told her that my client wanted to plead to something quick and to run it concurrent with his present 30 year sentence. We quickly agreed on a 5 year TDCJ, abandon the drug free zone. Fast forward to the court date, and she panics during the plea stating that she never agreed to abandoning the drug free zone, she never wrote it on her file, so I clearly was misleading everyone.

Judge set us for trial and she quickly re-indicted the case 25 to life. I talked to her chief and he sided with her. So I filed a Motion to Enforce Plea Bargain. I had my intern (my 19 year old daughter) with me in the prosecutor's office when we made the deal, so she wrote an affidavit. Further, our deal was for 5 years to run concurrent. 481.134 states that in a drug free zone, minimum range of punishment is raised 5 yrs, so his 2nd degree should have been 7-20. Also, 481.134 states that a drug free zone conviction cannot run concurrent with any other sentence. So, in my Motion, I made it clear that she contemplated and intended to abandon the drug free zone with an offer below the minimum and running concurrent with another conviction. She blew a lot of hot air and hollered on email a bunch, but the Friday before our hearing on the motion, she caved and went with the original 5 year, drop the DFZ. I'm guessing a higer-up or the judge told her that she didn't have a leg to stand on. -K

Bogar Lawyers said...

I detest going to misdemeanor because of crap like that. It's hard to listen to someone talk to you that way that was probably in middle school when you were doing their job. Sorry Murray. What a jerk!

Tom said...

As much as I dislike it, the State can withdraw a plea offer until it is accepted by the judge. On the other hand, we ought to publicize the names of ADAs who crawfish on plea bargains so the defense bar knows who to deal with.
And, a chat with Devon or Belinda might be in order.
And, yes, misdemeanor prosecutors can be a pain because they think everything is a capital offense. Like capital DWI.

Anonymous said...

This prosecutor seemingly has a lot to learn. The most important quality that a lawyer in negotiations ultimately can have is honoring one's word. For 25 years as a prosecutor the quality that I most valued was my word. When I made a representation or agreement with a defense attorney I honored it. Similarly, I expected the defense attorney to do the same. In my opinion, you satisfied that requirement. It is unfortunate that the unnamed prosecutor did not. It will do this prosecutor no service to acquire a reputation as an "anal cavity" in negotiations, for which this scenario patently gives genesis to a head start.
Calvin Hartmann

Anonymous said...

The HCDA office recently had mandatory ethics training. Apparently this chief either slept through it or ignored what was said.
It would be nice if the Administration reads this story and does some re-training. Nothing is more abhorrent than dishonesty in the courtroom especially among attorneys representing the state. No doubt your client needed some jail therapy but this is just disappointing.

Anonymous said...

This incident occurred before the training, and the training was about disclosing exculpatory evidence, so it likely would have done said ADA no good, unfortunately.

This ADA (whom I have dubbed Takesies Backsies because it makes me giggle) needs training in negotiations, plea bargain procedures, and how not to be a dick. TB fails to recognize that he is setting a behavioral precedent for his 2 and 3. TB also fails to recognize that - statistically, at least - he'll be on the other side of that table one day, and the people he's training will do the same to him. He's no more special than any other attorney in that building. Common decency goes a long way. So does dickishness. It all follows you in the CJC, and the reputation you build becomes your calling card.

Jigs said...

Obviously you're right Murray. But I remember that most of us were dicks early in our careers. The office recruits right out of law school and these kids are 22, 23 in their first highly competitive jobs. I'm guessing we all felt some insecurity because of our inexperience and general distrust of defense attorneys and those who had been around awhile. Most of us grew out of it and realized we didn't need to act like bad asses to do our job. Some never do and learn they aren't cut out to be prosecutors or trial lawyers. The division chief and deputy dog have a bigger role in the maturity process with these kids than felony leaders do. I don't think I smiled much or was very friendly with the defense my first year or two, but had that enlighing moment one day when I realized that I wasn't having fun and would go farther by purposely changing my demeanor. Not an excuse, but an explaination.

Anonymous said...

I agree with Jigs. As a baby prosecutor, you are give a lot of power despite a lack of experience or judgment. And you are extremely overwhelmed and overworked and off-balance when you have 12 trials set on a Monday, with no clue on which one will actually go to trial. I cringe when I think of how obstinate and unreasonable I might have been during the beginning of my career at the DA's office. I do think much of the empowerment of the new prosecutors comes from how their Chiefs treat the defense bar, as in the case Murray described. Much of the bravado I exhibited was supported, if not encouraged, by my supervisors. I will take responsibility for my actions, but it may have been a different story had my supervisors demonstrated a way to be reasonable and assertive at the same time.
And believe me, I was one of those who thought, "I will NEVER be a defense attorney!" B.S. You will, you just don't know it yet.
Training? How about one on Decorum and Respect in the Courtroom.

Jason Truitt said...

You don't look a day over 60.

Anonymous said...

A Lykos hire no doubt.

Anonymous said...

Hey, all prosecutors have made mistakes. Some have tried to offer polygraph results into evidence. Heck, some even have taken the Fifth in front of a grand jury. Lighten up. Live and learn I say.

Anonymous said...

Its youth and a lack of real life life experiences that generally cause behavior like that, but who else will do that job? Its an entry level job and mistakes will be made. Attitudes will evolve. Experience will teach. Sorry that happened to you, Murray. Its Misdemeanor Division and that group is in shambles right now, but hasnt it always been?

Sure you remember your Misdemeanor days?... Overworked, over excited about cases that arent worth it, nervous about failing, etc...

Youth is wasted on the young.

Anonymous said...


Off topic:

Houston Press has a great article on the Temple case.

Anonymous said...

Anon 9:25,

After reading the Houston Press article you cited I learned an interesting bit of information which explains why Dick DeGuerin is so fervently myopic on freeing David Temple. It has absolutely nothing to do with alleged Brady, actual innocence or anything other than the fact that it was DeGuerin himself who sealed the conviction for his very own client!
As documented in the article: "After trial, DeGuerin surveyed the jurors to find out why they convicted. His notes state jurors say that the Temple family testimony was what turned the case."

A law student would have surmised that the defense should have rested after the State presented its case. Dick DeGuerin's ego shouldn't have put the defendant on the stand because that might expose his actual guilt. That's not Brady it's pure and simple poor lawyering by defense counsel and the truth was inadvertently revealed!

Who knew?

Anonymous said...

anon @8:10………BINGO

Anonymous said...


Another off topic story from the Press

Anonymous said...

Can someone tell me why Marshall Shelsy isn't indicted for perjury yet?

Anonymous said...

Murray if you haven't already you must watch, "Jinx"--HBO's documentary on Robert Durst?
It is very creepy and Dick DeGuerin's defense strategy is boiler plate for what he concocted in the David Temple case.
Mr. DeGuerin is damn lucky he tried Durst in Galveston and not Harris County or he'd have been bye bye.

Eliseo Weinstein said...

Sometimes you wonder if they want people to learn from their mistakes or just take joy in handing out the punishment. Coming up with evidence that clearly was before the incident to make a decision seems like someone a little full of themselves. It's times like that you wish the judge would see through it, but it rarely happens today.

Eliseo Weinstein @ JR's Bail Bonds