Judge sets a trial date 2 weeks from the date the defendant bonds out and does not give the State notice of the trial date. Past experience indicates judge will not grant continuance, so State presents a motion to dismiss on the day before trial. Judge indicates he will deny the motion in the morning and force the State to trial with no witnesses. Judge (or jury if state refuses to waive) will then find D not guilty. D has never even moved for speedy trial. Any suggestions?

You don't say how much notice the State did get. But if the judge will not listen to reason, pursue a writ of mandamus attacking the failure to provide reasonable notice. At some point, reasonableness is unreasonable per se and the trial court will have violated an essential, or mandatory, requirement of process. I don't recall a provision allowing the State specific notice of a trial setting but an analogy to C.C.P. 1.051(e) (for appointed defense counsel). art. 11.07 (writ proceedings) and ch 55 (expunctions) should help. Simultaneously, file a motion to stay proceedings to prevent the judge continuing.

JAS

[This message was edited by JAS on 07-11-07 at .]

None of this is on the record, so even if I had time file a mandamus, I've got no proof. . .

ADA is willing to be held in contempt. It we do not participate in trial (i.e., passive resistance), ADA may spend a couple hours in the pokey, but the judge will be forced to dismiss, and then we could appeal. Right?

Problem is that judge is really dismissing on speedy trial grounds, or what he deems to be speedy trial grounds, and D has never moved for such.

As I'm sure your good appellate folks will advise, if you proceed your way, it is essential to make a good record in writing and verbally. The purported reason for the dismsisal is less important than establishing the reason was simply a pretext for screwing the State. I'm p....., I can only imagine how you feel! Get your appellate folks involved ASAP to coordinate things. Good luck!

JAS

Call a friendly newspaper reporter to be in the courtroom when the motion for continuance is heard. Make sure you file a written motion with a sworn affidavit setting out your reason for the continuance, including lack of notice. Put on testimony as to lack of notice.

Call all your witnesses tonight and try to get them there for the trial.

File a complaint with the Judicial Conduct Commission if this conduct continues.

. . . or I guess the ADA could be held in contempt until he purges himself, i.e., until he tries the case. That would be interesting . . .

Kim, I apologize. (Thanks, Mike.) I now know you are in appellate! Again best wishes on dealing with a difficult problerm, for which there is no easy remedy.

Remember the State's appeals where trial court's have tried to enter a JNOV in a criminal case, e.g., Savage. Not the label, but the action that controls, i.e., functional equivalent. They should help.

JAS

[This message was edited by JAS on 07-11-07 at .]

We keep a set of (fill-in-the blank, get out of jail, get another judge assigned to your contempt case) forms for prosecutors who think they may be about to be thrown in jail for contempt... If you want a copy of the set, just email me.

No, we don't actually use them much, but it's one of those insurance things.

I have no idea if this even makes sense but here goes:

If you can't withdrawl the indictment, perhaps you could amend it so that it alleges something stupid and unrelated like jay-walking. That way if jeopardy attaches it will only prevent you going after them for jay-walking and not the actual crime.

Alex,

No go, sorry. You can't amend this close to trial if it changes the elements of the offense unless the defendant waives his right to notice.

Can a judge hold you in contempt for not proceeding when you have asked for a dismissal?

If he/she has inherent power to control the docket, and the judge insists the case be taken care of that day, does the judge have the power to insist that the method of taking care of it is by trial rather than dismissal?

I'm researching dismissals and can't find anything that is published that really defines the extent of judge dismissing or forcing to trial. Just some non-published cases that hint that their power is to set the date, not determine the outcome..??

Isn't it 10 days needed in order to allow the defendant time to file written pleadings?

CCP 27.11 and 27.12

If the state intentionally forces a mistrial to avoid losing it is misconduct.

A judge has a ministerial duty to sign a motion to dismiss. (This issue has been the subject of a previous thread.) So, file a writ of mandamus, requiring the judge to dismiss the case.

I guess that whole judicial turnover thing in Dallas is going pretty well.

For the previous thread, click here.

How about recusing everyone in the office!

Filing a motion to recuse the judge would also require the judge to recuse or have a separate judge hold a hearing.

Also, I really don't see how a judge can force a prosecutor to pick a jury.

Kim, let us know how it comes out. I do not believe the court can dismiss the case on the basis of denial of a speedy trial right without that issue being raised by the defendant. The court has no authority to dismiss a case on its own motion. E.g., Salinas, 976 S.W.2d at 871. Thus, any dismissal must be on one of the grounds stated in the State's motion. Of course, a dismissal now is certainly not going to improve the speedy trial situation in the future (since as I understand the issue, the State does want to prosecute, just at a reasonable time- upon adequate notice).

One other thought about contempt. Short of saying the district attorney is neglecting his duty, is there any reason for a prosecutor to be present at the time the case is called? Doesn't the district attorney get the option of determining how the State will be represented under art. 2.01? The court must have authority to issue its order before it can hold you in contempt for failure to obey. Ex parte Tinsley, 40 S.W. at 307. The advice given in the "other thread" was to offer passive resistance, but that assumed you did not ever want to prosecute the case. If the State is not there how can the judge proceed to trial? I realize, they said in Prado, 822 S.W.2d 819 that the prosecutor was unnecessary to take a guilty plea, but I do not think the court can either force the presence of a prosecutor or go to trial without one. That becomes an effective continuance to me.

I don't want to mislead you by my prior offer of forms: I don't think letting an ADA be held in contempt is a good idea. It is potentially career-limiting, and the ADA may have to self-report if they attempt to be admitted to federal or other state bars.

You also don't really want to just fail to show up; I believe there is law that the court can appoint an attorney to prosecute the case if the DA fails to do so.

I find it very interesting that the judge would refuse to dismiss and is refusing a continuance given the situation, though. Do they have the full picture? Is this a new judge perhaps? This is just not the sort of thing an elected judge in a large county with a vigorous press/media would be expected to continue to do.

quote:

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Originally posted by Mia:
If the judge will not perform his/ her duty to sign a dismissal, proceed to voir dire. At voir dire, say something so inflammatory (like the defendant is the worst criminal this county has seen in years, etc.) as to draw an objection and call for mistrial. But make sure you get a mistrial. No jury has been seated so no double jeopardy problem. Maybe then the Judge will sign the dismissal.

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Mia, we gotta talk...

quote:

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Originally posted by KSchaefer:
. . . or I guess the ADA could be held in contempt until he purges himself, i.e., until he tries the case. That would be interesting . . .

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Just remember to have your handy writ of Habeas Corpus in case he is held in contempt by the sitting judge. Your ADA is entitled to all those same due process protections given the accused. A hearing before a neutral magistrate before incarceration is instituted. I can't believe too many of your judges would support a contempt citation based upon judicial conduct such as this or allow a judge to jail a lawyer improperly.

Of course, I'm sure you know to seek a judge other than this one to sign the writ.

He should only have to spend an hour or two in custody if a judge decided to jail him, which sounds within the realm of possibility in this situation. Be sure to ask your sheriff to provide him with a safe place away from the inmates. When I have seen an ADA placed in contempt in the past and he was taken into custody, they have kept them in the bailiff's office under guard while in custody.

The judge relented in that case as several of us were preparing a writ to present to another judge.