We have a new County Court at Law judge who likes to micro-manage cases. He often refuses to approve motions to dismiss we file in his court. He is now trying to force my assistant to take a case to trial that we do not want to try. We have filed two motions to dismiss and have had both denied. Does anybody have any suggestions other than announcing ready and then resting without calling witnesses?

[This message was edited by shaneb on 05-06-04 at .]

When he calls for announcements, announce not ready. You are not ready when your case is not prepared for trial. Then, stand up during voir dire and utter the following words, "Judge, any of these fine members of X county will suit the state, thank you". Then, exercise no strikes. Then, when the Judge asks you to present your case, state on the record, "In the interest of justice, the State of Texas respectfully moves this court for the third time to dismiss this cause".

Let the judge be "judgely" (another J word) and chew you out. Then rest. It is your job to pursue justice. If you do not meaningfully believe a trial is appropriate based on new information received since filing, stand up and say so. After everything, apologize at length to the jurors. Tell them the truth, that you're there for justice, not a conviction. Tell them the truth. Remember, they vote.

Most excellent analysis. Can I steal it and use it in the future. E-mail me at cabbott@Tmcec.com with proper crediting information if you don't mind.

Signing the motion to dismiss is a ministerial act. You could file a writ of mandamus, forcing the judge to do it.

John, are you sure? Without looking up any caselaw, the words used in Art. 32.02 like "by permission of the court" and "consent of the presiding judge" don't sound ministerial to me. I think the approach you have to take is what Beck Gibson described, so as to discourage the judge from refusing to sign dismissals in the future. The only way to stop this particular means of micromanaging your docket is to show that you will take that ultimate step and call him out in front of the venire and jury.

I was curious about this too. The caselaw found under the annotation for this section indicates that the judge has the discretion to refuse to dismiss. Is there a case we don't know about?

If the prosecutor and defendant agree to a dismissal, under what factual or legal theory could the judge refuse?

Personally I would think it would be an obvious politically oriented judge who would refuse to sign the dismissal but the legal theory under which he could do so seems to be Art. 32.02, CCP, John, which plainly says "No case shall be dismissed without the consent of the presiding judge." Is there some reason why the plain language of the statute doesn't apply in these circumstances?

The question is whether he has the discretion to withhold consent under the facts presented above. I think not. What factual or legal dispute exists?

Angelo Buono, one of the Night Stalkers here in CA, was prosecuted only after a judge rejected an effort by a prosecutor to dismiss; the LA DA's office conflicted off and the AG's office came in.

I don't have a thorough knowledge of Texas law, but it seems to me that you've either got to take the well-stated public dismissal route suggested by an earlier poster, or send it to another agency. While I believe (without any Texas expertise) that a judge can reject a dismissal where the interest of justice is unserved, the frequent use of that power is quite worrisome.

Such a ruling pattern seems disrespectful of the people or the process involved; I think efforts to dismiss in front of the jury are justified.

I'd only add that if the prosecutor has doubts of the defendant's factual guilt, I'd get that on the record.

--JRM

Expressing doubts about guilt in front of the panel might be a tempting approach. It certainly would put the judge on the spot. But I would not want to take this approach if I ever thought the case might be salvaged at a later time. If the dismissal is being sought because there is some temporary situation that may be remedied in the future (missing witness, etc.) I would not want a statement I made on the record in open court to come back and bite me in the butt later. Obviously, if the judge goes on to seat the jury jeopardy has attached and I don't guess this would be an issue at that point but I would hope the judge would dismiss before jeopardy attaches. John B., your last post suggests that a judge's discretion to refuse the dismissal goes away when there is no dispute between the state and the defense. Does the judge's discretion become ministerial when both parties agree to take it away? I'm still not sure I follow this.

Tim, I know this may surprise some of you, but sometimes I'm just thinking out loud. It seems to get people to jump in and argue, which is what this web site is all about. Thanks, everyone.

I once saw an elected DA, when confronted with the same situation, simply rest without presenting any evidence.

Now, John, don't do that to me. When you say it's so it always makes me question if I missed something. I enjoy a good discussion as well. I would be tempted in these circumstances to rest without putting on anything but my big mouth would probably force me to say something that would really get me in hot water with the judge. Bottom line here is that there isn't really a good way to deal with this. I would probably try to hash it out with the judge in chambers and try reach some sort of understanding before taking it into the public courtroom.

The irony of all this discussion is that the prosecutor has virtually complete discretion on whether to file a case, but once exercised in favor of prosecution the law seems to suggest it is the judge who gains the power over whether to un-file it. Why is that? Is it merely a turf battle- that once the matter hits the court's docket it is the judge who must appear to be in control? I understand the ability of the court to correct plea-bargaining errors, but the purpose behind the limitation in 32.02 intrigues me.

I'm going to post this under this thread and as a new one.

I tried a defendant last October for 1st degree murder. The jury hung (defendant moved for mistrial). The case has come back up for retrial and I just received the record of the defendant�s prior testimony. After reading his testimony and depending on what part/variation the jury believes, there is enough to indict and try him for Capital Murder.

The defendant has been in jail on the murder charge as well an Aggravated Robbery and two burglaries (all unrelated) since April 2003.

I want to dismiss the pending murder and reindict as a capital and try as a "mini cap". I think this will give me some help with an indecisive jury. This will not sit well with the Judge and I expect the defense attorney to object to the dismissal. If the Judge refuses to "consent" to the dismissal and sign it, can he force me to try the 1st degree murder or can I mandamus him to force his "consent"? Like John, I think that his signature should be a ministerial act. Does anyone see any other potential problems with this tact (jeopardy, collateral estoppel, etc)?

The Grand Jury handed down a Capital Murder indictment last Thurday. I filed my Motion to Dismiss Friday. The Judge has "postponed" signing it. I am scheduled to start Jury selection on the "dismissed" murder this morning. If the Judge persists in refusing to sign the motion, I gues I must respectfully decline to proceed with jury selection and file a writ asap. God, this job is fun

OK, I doubt if the judge can force you to pick a jury, and without a jury there is no trial, as the judge certainly can't force you to waive the jury.

I suppose the judge could try to pick the jury for you, but he begins to get himself into a world of ethical trouble with that approach. And, I imagine an appellate court would issue a writ of prohibition on that.

Of course, if the judge dismisses the case and you proceed on the mini-capital, the judge could think very favorably about a motion for instructed verdict on the capital element, but, again, that would just be wrong.

Could it be that the judge has formed an opinion about the case before trial and shouldn't be hearing it?

Well I'm not in jail. The Court called for announcements in front of the panel. I announced that I had filed a dismissal last week and that the State would not proceed on the murder indictment but that I was prepared to proceed on the Capital indictment immediately. The court then moved to chambers and reluctantly signed the indictment to avoid a "constitutional crisis". Good result but my question is still not answered. Can he refuse to sign the dismissal??? Another fight for another day.

You have a wise judge. Sometimes you don't want to know the answer.