In the courtroom, the odds are always stacked in the prosecution's favor. They are the entities with almost unlimited resources, while the defendant must rely primarily on his defense attorney's skills.
A District Attorney possesses enormous potential for vengeance against a defense attorney if they decide to use it, and too many of them do.
A recent case in Texas echoes the kind of treatment defense lawyers receive from prosecutors all the time in California – it's a national epidemic. Any time a defense attorney is menaced for doing what they are supposed to do – defend their clients – the entire criminal justice system is threatened.
Lone Star Witness
In February 2017, Nico LaHood, the San Antonio DA, was prosecuting a man accused of shooting a young woman in the head and killing her during a bad drug deal. Things went south for the DA on the trial's second day, when the government's star witness – a man also suspected in the murder – turned out to have previously been sexually involved with a female prosecutor in the DA's office.
The defendant's lawyers asked for a mistrial on the grounds that the relationship gave the prosecutor's office a reason to not pursue the case against the witness, and for the witness to help the prosecution.
In a meeting in chambers, LaHood threatened to shut down the defense attorneys' practice. However, the judge agreed to grant the motion for a mistrial.
The following month, the defense tried to bar further prosecution of their client. In April, LaHood denied his threats under oath and said the defense attorneys were acting in bad faith when they made the allegations.
There was just one problem – the judge who granted the mistrial took the stand. She heard LaHood make the threats, and noted he may have committed official oppression.
This crime occurs when an official misuses their position to “intentionally subject another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful.”
She added LaHood's words “had a chilling effect on me,” and imagined headlines blaring “DA threatens local defense attorney.” As for the headlines, she was spot on. After the motion to dismiss was filed, she recused herself from the case.
The lawyers involved believed LaHood's threats would essentially end their careers in San Antonio. These were two well-known attorneys, and LaHood made these threats in front of a judge.
This isn't someone who should serve as a DA, but the larger question remains: What has he done to lesser-known attorneys when he wasn't stupid enough to make his threats in a judge's presence?
The bottom line: To protect their livelihoods, defense attorneys may not fight as aggressively for clients as they could if they didn't fear their careers would end.
Threats Taken Seriously
Generally, bullying and other bad behavior by prosecutors of defense attorneys goes unpunished. When complaints are filed, nothing usually comes of them. The prosecutor holds too much power over the lawyer's future cases to pursue this injustice.
In San Antonio, however, LaHood's threats were taken seriously. A judge did decide to bar future prosecution of the defendant, citing LaHood's unprofessional behavior.
A Defense Attorney's Defense
Since the prosecutor holds so much power, what can a defense attorney do when a prosecutor bullies them?
First, get any threat confirmed via email.
For example, if a prosecutor states that a defense attorney can't share discovery with a client – a ridiculous idea which has occurred – shoot the prosecutor an email asking them to confirm that they indeed stated you could not share the material with your client and that such sharing is a prosecutable offense.
The prosecutor should change his or her tune, but if they don't, the defense attorney has the email. The defense can then file a motion to share discovery materials with the client, citing the client's constitutional rights and attaching a copy of the email to the prosecutor as an exhibit.
If a hearing ensues, it can work out well for the attorney no matter the judge's decision. Should the judge side with the prosecutor, the defense counsel can use the fact that the client could not see the discovery material throughout the case. It makes for an interesting situation at the appellate level.
When working with a DA who has it out for them, the defense attorney should only communicate in writing. An electronic or literal paper trail is an absolute necessity. When in court, rather than have discussions in chambers, at side bar or “off the record,” simply refuse to be a part of any discussions unless they are recorded.
The American Bar Association's canon on ethical considerations states, “A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.”
If LaHood and other prosecutors adhered to the common courtesies outlined in the canon, our criminal justice system's current parlous state would improve.
Prosecutors that bully defense lawyers are sadly all too often the norm in California.
At Tully & Weiss, we take pride in our resilience in the face of prosecutorial intimidation attempts – we never back down when defending our clients, even when under personal or professional threat.