OK, I know I'm old and gray...but there was a time that, as the prosecutor, I had some discretion with the disposition of my cases. For instance, a person makes restitution on a check and I dismiss - things like that.

I have now been informed that each case I wish to have dismissed will appear on a dismissal docket, and that I am to appear and "show good cause" that the case be dismissed.

What is my recourse here?

Lisa L. Peterson
Nolan County Attorney

This sounds a lot like how a thread in another place started. You might want to begin by clicking here.

Fight fire with fire... put everything on the jury docket!

Very mature.

quote:

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Originally posted by AlexLayman:
Fight fire with fire... put _everything_ on the jury docket!

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a very, very bad idea.

Why don't you just stand up and (for each case) refer the judge to the grounds stated in the motion to dismiss? Alternatively, you could just read the grounds from the motion into the record.

Have you sat down with the judge and discussed this with him? Surely, y'all have enough cases to try there that you don't need to try cases that you're ready to dismiss. If he doesn't think you are trying enough cases or aren't being tough enough or something, he needs to speak up and say so. Then you could pick something worthy of a trial and go forward on that. There's got to be a backstory with your judge on this issue.

Thanks for the responses - please keep them coming as I am NOT eager to be the first prosecutor incarcerated in an effort to determine what happens if the judge refuses to sign and I refuse to proceed.

This particular judge would be THRILLED if all the cases went to jury; unfortunately, as one attorney doing county civil (and 1983 suits), misdemeanor and juvies - I can't.

What evidence do you put on when you want to dismiss a case because an out of state resident paid the restitution and the warrant can't be served anyway?

Lisa L. Peterson
Nolan County Attorney

Hey, Lisa. Does His Honor have any concern about the county budget and the cost involved in prosecuting that particular case...even if you could?

manage to put on exculpatory evidence, with neither defendant nor counsel present - in hopes that the Court will sign my dismissal motion - wihtout giving the judge information about the case that he shouldn't have (should he choose NOT to grant the dismissal) and without, shall we say, holding an ex parte, on the record, discussion with him? His letter informs the defense bar and bondsmen that neither counsel nor defendants need appear....

Lisa L. Peterson
Nolan County Attorney

Time out - he wants to have a hearing docket on these motions and NOT have the opposing party present? That does seem to me to violate the judicial canons against ex parte communications. He can either rule on the motion without a hearing, or he can have a hearing with both sides being present. He cannot ethically have it both ways.

And why is it exactly that he only wants to inconvenience you, and not both sides?

Perhaps the judge wants you to haul the shopkeeper up to the courthouse on a subpoena to explain that restitution was paid.

but it goes back to he doesn't like the way I do my job....

His letter makes the appearance of the defendant and / or counsel optional. The sad thing is - I AM in the habit of dismissing some things...or letting out of state defendants caught with pot on I-20 plead to the max on paraphernalia rather than return to Sweetwater...

My inclination is to appear for the first one and explain - on the record - that the State will not present evidence in an ex parte hearing. Next - be prepared for a trip to Eastland on mandamus; lastly the jury route. Sad thing there is that it leaves a group of the public both inconvenienced and with a bad impression of the judicial system.

I keep looking for the win / win solution...but am not succeeding in finding it...

Lisa L. Peterson
Nolan County Attorney

[This message was edited by Lisa Peterson on 05-08-09 at .]

Much bad law arises from bad relationships or lack of communication.

What is he going to do if you choose to not proceed, "in the interests of justice?"

There is case law that says he CANNOT appoint a special prosecutor so long as you are "able" although unwilling to proceed. And, you announce your position to the court.

His default position would then be to accumulate a number of stale cases on his docket until they are barred by a function of law.

This guy seems to be suffering from breathing the fumes from the toxic dye that too many of the robe makers seem to use. LOL

Lisa,
Take a look at: Taylor v. State 670 SW2d 365.

"Probationer appealed from a judgment of the 124th District Court, Gregg County, Alvin G. Khoury, J., revoking his probation. The Court of Appeals, Colley, J., held that trial court was without authority to appoint a �special prosecutor� to proceed on State's application for revocation of probation, which State had chosen to withdraw and dismiss, in view of fact that revocation proceeding is a criminal case within scope and purpose of constitutional and statutory provisions requiring that district attorney, who was not shown to be disqualified, absent, or otherwise unable to perform duties of his office, represent State in all criminal cases in district courts.


Reversed."

In looking at that case, will Lisa's judge understand the word "REVERSED" and all the implications of it? Ultimately, he is further inconveniencing both the state AND the defense (and the appellate court, for that matter) if he refuses to dismiss these cases by requiring either a writ or an appeal before he does what he should be doing. If he wants to be a prosecutor, then he should get his hiney off the bench and prosecute. Let someone who is willing to sign dismissals sit on the bench. Of course, I could say the same thing about a lot of judges who want to be defense attorneys....

You might attach an affidavit to your motion, you being the affiant "on information and belief (as opposed to personal knowledge), restitution has been paid in full and the victim no longer desires that this case be prosecuted". You might also have the defense atty sign off on the proposed order approving as to form to at least minimize the ex parte aspect/appearance.

I get where the judge is coming from having seen an election a number of years ago where the sitting judge had an opponent who provided copies of a fairly lagre number of dismissal orders signed by the incumbent (county court at law) judge and claimed the incumbent was soft on crime. As I recall, there were more dismissals than jury trials in the court over the prior 4 years. Of course, members of the bar knew what was going on, but the public at large was much less informed.

Good luck finding a solution that works without getting sideways with your judge.

Thanks for the cite and the great ideas. Many of the defendants are unrepresented, which makes all this even more awkward.

This job would be so much simpler if all defendants had counsel...or we were only supposed to seek convictions, not justice...

Lisa L. Peterson
Nolan County Attorney

quote:

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Originally posted by Steven Denny:
I was under the impression that a dismissal was a ministerial funtion and not subject to judicial discretion (except for the with or without prejudice part)

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I have always thought this was a correct statement. Several years back, I re indicted a murder as a capital murder. I wasn't going to seek the death penalty but the judge was ticked about it. I filed a dismissal of the murder and the judge refused to sign it. He said he was setting the murder for trial before the capital murder. I had prepared a Mandamus and I politely let him know I felt he was forcing an unnecessary issue (I had an extra file with me boldly labeled In Re Judges Name, Action for Writ of Mandamus in my lap while we talked). He finally signed the dismissal.