The applicant [Adam Reposa], an attorney in Austin, was found in contempt of court by the Honorable Jan Breland, Judge of County Court at Law Number 6 of Travis County, for contumacious conduct during a misdemeanor trial. As an attorney representing his client in a case, the applicant was considered an officer of the court at the time he was found to be in contempt. (1) Pursuant to Government Code Section 21.002, the applicant was accorded a hearing to determine his guilt or innocence. (2) The Honorable Paul Davis, the Judge assigned to preside over the hearing, found the applicant guilty of contempt and assessed his punishment at ninety days in jail. Because there is no remedy by appeal for contempt proceedings, this habeas action followed. (3) At the applicant's request, we set bail pending the disposition of this application.

The applicant here seeks to challenge the judgment of contempt and the sentence on five grounds. The first four grounds seek relief from the order adjudging him in contempt; the fifth ground is directed at the sentence. We find them to be without merit.

Details.

[This message was edited by JB on 10-28-09 at .]

Using the link JB posted above, you can read the entire opinion.

There is much talking about prosecutors who are vigorous and impassioned in the prosecution of criminals. Apparently, the defense bar in some part frowns on a zealous prosecution. Particularly, I seem to read criticism over zealous prosecution of murderers, child molesters and other types of violent or serious criminals.

The following excerpt from the Reposa opinion is worth reading for every prosecutor. In fact, go to the opinion itself and read this entire point of complaint.

"Finally, the bulk of the applicant's claim that Leavitt was not a "disinterested prosecutor" seems to turn on alleged prosecutorial overreaching and overly zealous prosecution, including introducing extraneous evidence. But a prosecutor who zealously seeks a conviction is not inherently biased or partial.

[A] prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged. If honestly convinced of the defendant's guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. True disinterest on the issue of such a defendant's guilt is the domain of the judge and the jury-not the prosecutor. It is a bit easier to say what a disinterested prosecutor is not than what he is. He is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged. (47) We perceive no special interest or particular axe to grind on Leavitt's part beyond a prosecutor's legitimate interest in advancing the State's case, "by any fair means," toward the end of conviction. None of the anecdotal evidence the applicant has presented establishes bias that rises to the level of a due-process violation. Leavitt was permitted by statute and obliged by his office, for instance, to present the "extraneous" evidence he believed relevant to punishment during the contempt hearing. The fact that he offered the evidence and Judge Davis chose to admit it does not indicate any special prosecutorial bias. But even if we had perceived prosecutorial overreaching, we would find no actual conflict of interest such as is requisite to compel disqualification. The U.S. Supreme Court has noted:

It is true that prosecutors may on occasion be overzealous and become overly committed to obtaining a conviction. That problem, however, is personal, not structural. . . . [S]uch overzealousness "does not have its roots in a conflict of interest. When it manifests itself the courts deal with it on a case-by-case basis as an aberration. This is quite different from approving a practice which would permit the appointment of prosecutors whose undivided loyalty is pledged to a party interested only in a conviction." (48) The applicant has failed to establish that Leavitt had an improper personal stake or interest in the case that was inconsistent with a prosecutor's duty and that deprived him of his right to a disinterested prosecutor. Nor has he established any structural conflict of interest that represents a violation of his due-process rights. Judge Davis did not abuse his discretion in denying the applicant's motion, and the applicant's rights to due process and due course of law were not violated by that denial."