Last week, during a sentencing hearing (in front of the court) one of my misdemeanor attorneys was called to the stand. Defense proceeded to ask him about his past drinking behavior (particularly, whether he ever drank while a minor like his defendant). A relevancy objection was raised and sustained. Of course, that 'ole King's X, Bill of Exception, was raised, and questioning resumed. Fortunately, defense picked the most non-drinking, non-smoking, law-abiding good kid in our office (quite amusing).
I have no misconceptions that this was some genuine attempt to affect the judge's punishment decision. This was simply a ploy to make a compilation of prosecutors' skeletons to use at other future moments. My question - who has experience with this before in your jurisdictions and what would you suggest as a systemic, office-wide approach to nip this BS in the bud? Please respond via my email, as the attorney in question trolls these boards.

You have to be kidding.

I'm thinking possible grievance (activity was simply to harass, embarrass annoy) - but I have little confidence in the Bar to discipline. Others have suggested good for goose is good for gander, but I really don't want to stoop and engage in pissing contest. Some have suggested 5th, but I don't like that either. That's why I was looking for suggestions from more experienced ones here.

I don't think a grievance is unreasonable. There is no legitimate legal purpose for calling such a witness. Of course, the trial judge also should have sustained any objection on relevancy, etc., and prevented the questioning from even occurring.

I'm surprised the judge even let the prosecutor get on the stand--there are rules against being an advocate and a witness in the same case, so by the other party calling the prosecutor, he can keep that prosecutor from continuing the case or make him violate ethical rules. Prosecutor shopping!

JB - the objection was made - and sustained! The defense then claimed it was part of a Bill, and the judge allowed that (for the record, of course). If there's a way to beat testimony for a Bill (Rule 103), I'm all ears.

Can you simply make him describe what he expects the evidence to show? A formal offer is unnecessary where it's apparent from the context. Fox v. State, 115 S.W.3d 550. Getting him to say what questions he wanted to ask and what he thought the responses would be should be enough to preserve any . . . ahem . . . error without subjecting the prosecutors to that type of harassment. Also, Flores v. State, 155 S.W.3d 144 and Ramon v. State, 159 S.W.3d 927 have some choice things to say about calling attorneys as witnesses.

Of course, this may all be dependent on how cooperative your judge is/was. That may be the missing variable from this scenario.

I feel better knowing the judge sustained the objection. But absent any representation of how the information was going to be relevant, I would think the judge could deny the bill. If the defendant was so bold as to raise the issue on appeal, I can't imagine an appellate court saying the bill was necessary. And, even if it was somehow necessary, it could be done during an abatement and remand.

I completely agree, but like I said, this really wasn't about the present case. It wasn't about getting a lighter punishment from the judge. Regardless of the sentence, an appeal never would have been made (on those grounds). This is all about compiling "dirt" on prosecutors and using it when expedient. What frustrates me is a judge who doesn't (or won't) see it for what it is and refuse to let their courtroom be used for this nonsense.

Agreed. Although I'm betting that judge would protect the court from that same misconduct if the "witness" being called was a judge.

Tom,

Maybe the next time that they say they want to call a prosecutor for those purposes, you should tell the judge that you're gonna call one of the district court judges to the stand, and that if they are going to allow a bill on your prosecutor, you want one with the judge as well. I'd pick the district court judge that would put the most pressure on the county court judge to "see the light" and end this fiasco.

Cam,
I know you are familiar with our current district court judges. Who in the world would you suggest for that little exercise? The possibilities . . . .
-T

Why not call the defense attorney to the stand and ask the same questions? Let him put himself on record as someone who drinks to the point of intoxication like the people he defends, or, unlike his client, a law-abiding person.

Boyd, you assume that a defense attorney who would pull such a stunt is capable of being shamed.

Care to share the name of this defense attorney?

I don't think the judge should have even allowed a bill to be preserved.


I have to be careful with my posting. I am approaching 100 posts, if I keep this up I will catch JB.

[This message was edited by John L. Pool on 11-09-07 at .]

http://www.criminaldefenseattorneylubbock.com/Profile.html

He's the bearded half of the above link.

We had a similar tactic used against our juvenile prosecutors, as an effort to remove them from the case.

Because a lawyer cannot serve both as advocate and witness, it is unethical to call opposing counsel unless you show a genuine need for the testimony and that it goes to an essential fact of the case. Sounds like your defense attorney is just picking prosecutor's at random, but I think the same ethics rule applies that you don't call opposing counsel as a witness to harrass.

As previously stated, one need not to make a proffer by Q & A, so defense counsel can just say what he thinks the testimony would show. Alternatively, maybe there is something you can stipulate to, thus avoiding the need for testimony altogether. I'm not sure what it is exactly this guy thinks he will be able to show, but if you can stipulate that "other people drink," it might not hurt to do so. I'll send you a copy of my written objections, maybe you can use some of it.