I defended a guy 25+ years ago that we are now prosecuting as a habitual. It appears to me that I am not disqualified even if the conviction from my not-very-successful-defense is one of the priors so long as I am not the one who testifies that he is the same person previously convicted.

The defense atty is, of course, saying that I am disqualified.

Opinions would be appreciated -- especially if supported by caselaw!

Thanks.

Review the following ethics opinion from Nov. 2008... Opinion 538...

My bite is as bad as my bark!

The Court of Criminal Appeals discussed and decided this issue in Landers v. State, 256 S.W.3d 295. In short, the defendant must show that the prosecutor actually used confidential information obtained during the representation to prove a due process violation.

The prosecutor has a parallel duty to carry out his or her constitutional duty as an elected official.

Be sure to redact any information in the prior judgment that identifies the prosecutor as the previous defense attorney. And simply avoid using any confidential information obtained during the prior representation.

Of course, you could make that even cleaner by walling yourself off from the prosecution and assigning it to another assistant DA.