I have an MTR tomorrow on a DWI 3rd alleging all kinds of new offenses. Today, the defense attorney points out the I defended the person on his 2nd DWI and he is "going to attack the judgment". Looks like a conflict to me. Ok if I let one of my ADA's handle or do I need a special prosecutor.
Not sure the judgment (I assume on the 2nd offense - where you were the defense attorney) is subject to attack in a proceeding to hear the allegations in an MTR on the DWI 3rd. Even if the judgment he intends to "attack" is the one in the DWI 3rd, it is not likely that judgment is subject to attack in the MTR hearing IF the "attack" is on the validity of one of the priors. It looks like you can represent the state in the proceeding to revoke. However, if you want to avoid any chance of a problem, have a special prosecutor appointed. Since you are apparently the elected prosecutor, I believe your assistants would be conflicted out if you are.
Thanks, that was my read. However, since my name is on the DWI 2nd judgment which was used by my predecessor to place him on this 3rd, I like to err on the side of caution. When in doubt get a special prosecutor.
No point in even taking a chance of an issue arising down the road. Ask judge to appoint attorney pro tem b/c you still have control over a special prosecutor.
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