I have had two attorney's (not in the same office) subpoena the investigating officer after filing a Writ of Habeas Corpus with the court.

In one case, the defendant was indicted within the 90 day time period, and the writ asserts that he is being unconstitutionally held... blah, blah, blah, and asks the judge to release him or reduce bail. Ever time this motion is filed, the court sets it for a hearing. He then subpoenaed the officer and administrators with the PD to bring all documents related to the case to court. I imagine I should file a Motion to Quash on grounds some of what he requested is work product.

In the second case, the JP set a bond on a child molestor at 75K. He has only been in jail a week or so, and they have filed a writ and a request for a reduced bond, and also sent a subpoena for the investigating officer and the PD to bring all evidence in the case to the hearing.

I am using my own due diligence by looking at case-law on this issue. But perhaps the experienced minds on this board will know what to do. My questions: Is this filing writs after bonds are set, or after the case is indicted common in your area? What is your response? What should I do in either of these cases. I would appreciate any imput as well as law or cases, or a beginning point.

Thanks

In the case of the child molester: can you get his case before a G/J and get him indicted before the habeus hearing comes up? That would solve a lot of problems.

I would certainly file motions to quash the def. subpoenas. I would also tell both attys. that unless they withdraw their writs, that you are closing the files, and they will not be allowed to see the offense report or witness statements until trial.

It has been said "that a subpoena duces tecum is not to be used as a discovery weapon, but as an aid to discovery based upon a showing of materiality and relevance." See Reece, 878 S.W.2d 326-7; Mead, 759 S.W.2d 437; Peca, 799 S.W.2d 426. Further, the material being requested is privileged pre-trial, even if it has some limited relevance to the reasonableness of the bail (to the extent it relates to the nature of the offense and the circumstances under which it was committed). See Brem, 571 S.W.2d at 322. Martin, 960 S.W.2d 838 should get you where you need to go.

[This message was edited by Martin Peterson on 10-12-05 at .]

Today I filed a motion to quash using the suggestions and case-law provided on this thread. Thanks!

If you have local lawyers who regularly practice criminal law in your jurisdiction and they are obviously just jerking you around, (assuming you have an open file policy) sit down with the lawyers and explain that if you're going to have waste your time dealing with their frivolous matters that the files in the instant case AND all of their future cases are closed. In my jurisdiction, we have to do this occasionally when lawyers look through a file and then file a truck load of discovery motions (particularly if they insist upon hearing them). I would recommend talking with them before you drop the axe on their heads. They might just have goofy clients in this one instance and it might be a one-time thing.

I agree. Most lawyers here play by the unsaid rules. When there is a legitimate issue, I have no problem with the attorney doing a motion and having it heard. The problem here is that this defense lawyer is too new to know that just because you can file something, it does not mean you should! Anyway, I have told him that my files are closed if he persists in doing things the hard way. It seems he wants to.

Today the writ of habeas corpus and to reduce bond were heard. However, right before the judge granted my motion to quash the subpoena duces tecum for the records of law enforcement. So that should put some limits on his willingness to do it again. The judge did not reduce the bonds either. Hopefully that will be the end of that effort.

Grounds: excessive bond, hearing requested, Relief : reduction to reasonable amount.

No Cause Number. Defendant had bonded out on a pending felony, was arrested for an August misdemeanor that has not yet been charged, bonded out on it but was re-arrested on misdemeanor capias release surety in September.

Clerk says he's never gotten a habeas on a misdemeanor capias, judge already reduced bail (twice now), and defendant is still in jail.

Thoughts (other than to get the related misdemeanor charged and make an offer so we're not back here this time next week doing the same thing)?