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This issue intrigued me back on the original post. I think a judge could seat a jury without the participation of the prosecutor. If the judge says the case is going, then he turns to the prosecutor and says it's time for your voir dire and you remain silent or decline, why can't he consider that a waiver and just move to the defense? At every step in the road, if he gives the prosecutor the opportunity to participate and then moves on to the defense, a jury is going to be seated. I don't suppose there's any law that says the state MUST voir dire and use it's challenges. Then, after the jury is sworn, if the state again declines to go forward, I would think the judge could direct a verdict. Now you've got jeopardy and you better hope like hell that you were right about the signing of the dismissal being a ministerial act because if it wasn't, you don't get to try the capital murder. Of course, no judge is likely to do this just to make the point because they don't want to be the one who caused the case to go away. GREAT stare down, Tuck. I would like to know the answer to this question, too.
I tried to suggest a "friendly" mandamus to get an answer but I am afraid that was too much of an oxymoron. No court wants to have a mandamus on his record and I believe the Judge felt there was a very good chance his signing was a ministerial act.
Why does having a mandamus on your record matter? I mean, it's the higher court's responsibility to interpret the decisions of the lower court. Quite frankly, if the judge isn't sure, then perhaps giving the higher court the opportunity to clarify that which isn't clear is exactly the thing to do.
I don't understand the judge's position. Is it so terrible to make a decision so that the decision can be reviewed? I enjoy being right just like the next guy, but I don't derive my personal professional self-esteem off of it.
This has been an interesting read. It makes me grateful that I have a good relationship with my judge, who is level headed. A poor relationship with a judge would really make this job difficult.
A ruling by 102nd District Court Judge John F. Miller Jr. in a Red River County drug case has brought a stir of concern all the way to the Texas capital.
Miller denied a motion by the state Attorney General�s office special prosecutor in the case. The special prosecutor has asked the charges against former coach Vergil Richardson be dismissed for lack of evidence.
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