Can anyone offer any guidance on what to do when it appears that the court will deny a State's MFC, which is based on two previouly set jury trial settings, where the prosecutor is a special prosecutor? And the defense got the case set for trial without notifying the State's attorney of record? Even though there is a documented request in the file FROM THE DEFENSE ATTORNEY asking that the court notify him and the special prosecutor of any and all trial settings?

You can always dismiss the case and refile it later (assuming no statute of limitation problems). It is not the preferred method of a continuance, but it does work.

Seems like we threatened mandamus once when we were being denied our first State's Motion and the judge backed down.

David, are you saying the prosecutor did not receive timely notice of the setting and already has two prior conflicting settings? If so, the third option is, he attends one of the other cases. The court cannot proceed to trial in his absence (since he is the sole attorney pro tem) and cannot dismiss the case. I would think the attorney could succesfully defend any contempt action, but in any event that scenario does not get the defense attorney what he is obviously aiming for.

I have been there - very uncomfortable when two judges demand your presence at two different places at the same time. Assuming the new setting is timely and you could prepare if put to trial if your motion for continuance is not granted, I recommend you immediately file a "contingent motion for continuance" with the court or courts where you have the prior settings and personally present the motion to the judge with the prior settings for him or her to sign an order setting a hearing on those motions for the day after your hearing on the motion where you think the judge is going to deny your motion for continuance in the subsequently set case.

It has been my experience that the judge with the prior setting will pick up a phone and call the judge who is trying to take his prosecutor or will pick up the phone and call the administrative judge for the region. They don't want to be in that battle.

You will appear to be the good guy with the judge where you have the prior setting ... "judge I just wanted to alert you at the earliest opportunity that I may go down in flames on a motion for continuance in a trial setting made subsequent to you setting me for trial and I will need your guidance as to where to be ..."

Hard ball is to subpoena the judge and defense lawyer with the prior setting where you are prosecutor to be witnesses in the subsequently set case where you are moving for a continuance ... NO, NO!! just kidding ... chaos ... interesting to think about one of them on the stand asking them if they would please step aside and defer to the subsequently set case ...

Hard ball - if your motion for continuance in the subsequently set case is denied, have a motion on file asking the judge in the subsequent setting to make findings of fact as to why his case takes presidence over the prior setting so you can present those findings to the judge with the prior setting who will be hearing your "contingent motion for continuance".

Be ready for the question though in the case where you are not the special prosecutor for the question as to why one of the other prosecutors in your office can't take over the case and do it.

Good luck,

P.S. Review the Government Code provisions that allow an officer of the court to be released on his own motion on a personal bond to have another judge review a contempt finding. I had a carefully drafted motion and bond that I could carry on those rare occasions when things were real tense.

P.P.S. visit the jails and see which is the nicest if one has to go to jail for contempt.

Just dismiss and refile if you can.

John

Thanks for the replies. I intentionally left out a few facts to see if maybe I was overlooking something. This is a very old case, the SOL has run. The judge lost his primary election in March, and is lame duck to 1/1/03, so he has little to care about in the way of complaint or public exposure. This is entirely a brother-in-law deal between the court and the attorney. These cases have sat idle for 18 months despite numerous requests by the previous prosecutor-in-charge for trial settings. Then they set it and didn't tell us, despite a letter in the file to the court from the defense attorney to please give him and my predecessor at least 2 weeks advance written notice of any trial settings.

This case is technically older than the other 2 but the other two have both been set since August.

I think I may go with Mandamus, just to delay it until January. Otherwise, I hope this hurricane doesn't flood the Corpus jail!