Sunday, March 1, 2009

All That is Necessary for Evil to Prevail...

Never let it be said that I'm not an equal opportunity offender. And apparently, I'm offending someone.

Of course, this particular dispute stems from a couple of posts wherein the righteously indignant (yet internet famous) Mark Bennett tells prosecutors (and even alludes that some judges could be included) to watch out and even gives them a "friendly" head's up, saying that next time they do something that violates the Rules of Conduct, they just might get "that certified letter from Austin."

In another post he even ponders the always-present "who's watching the watchers" issue when he states that he knows why it’s so hard to get a grievance sustained against a prosecutor: "even when they lie, cheat, hide evidence, and send unethical letters to people represented by counsel". According to him, it's because the perception of prosecutos is that they can do no wrong, and when even the Office of Chief Disciplinary Counsel loves prosecutors how can we expect them to take action against the unethical ones?

Here's an idea for you Mr. Bennett: make them aware of it in the first place.

So, I'm sure with all of your indignation you'll be reporting them for disciplinary action, like you threatened to do, so they never do it to one of your clients, right?

Of course not.

Even you ask, in the very title of your post, how this can possibly be OK. And instead of doing what you threaten to do not a few days before, you prevent any form of dissent from being discussed on your blog by denouncing it as bile, to be posted on my blog that nobody will read (which I pretty much said was the case in my first post, and your comment in the early posts was fairly complimentary...).

But, God forbid someone have to put up with their own words being thrown in their face. Way to talk a big game, yet do nothing but have "constructive conversations" when confronted with violations of the rules.

Edmund Burke was setting the absolute minimum standard for evil to prevail when he said that it would if good men do nothing. But you know what else will help it along? When defense attorneys don't have the courage to take action and are more concerned with their internet presece than they are with representing their clients or making sure that our profession is cleaned out of all of the scumbags--on any side of the bar--who break the rules.

Congratulations on your huge internet readership Mr. Bennett.

UPDATE: I can't tell you how much pleasure I just got out of telling my esteemed colleague Mr. Bennett that he referred to one of my recent posts on Life at the Harris County Criminal Justice Center as being correct. It was anonymous because when I posted I was sitting at the airport waiting for friends to come to town, and I hit post before filling anything with my name. My posts there are moderated but mostly approved when they're middle of the road, as that one was. So Bennett made the mistake of quoting me, which I couldn't help but tell him about.

His response? To list me as spam on all Wordpress blogs.

Man, that guy really doesn't like to be told he's wrong, but he likes it even less when he accidentally agrees with someone who's trying to hold him accountable for his ethics.

Oh well, I'm not too concerned about losing the confidence of a criminal lawyer who tried to tell me that there were no circumstances that would ever allow a judge in Texas to hold a defendant without bail, only to find within two minutes several reasons why it could be done. I'll just assume that the rest of his advice is equally as valuable.

(Note to Mark: I said "valuable," but I don't really mean it.)


Anonymous said...

Just for the record, several people read and like your blog! You keep it real.

Rage Judicata said...
This comment has been removed by the author.
Rage Judicata said...

Well, if you define 'several' as 'at least three,' maybe. But, you still might be stretching it with the 'like' part.

Like I've said from the start I'm not doing this for a following. And truth be told I'm not sure why I'm doing it, but all I can do is call it like I see it. Not call it like I see it, until it applies to me. I wish more lawyers did what they said they were going to do, instead of getting caught with their wang in their hand after talking smack.

Arthur Seaton said...

Actually, Bennett had had enough of your douchiness earlier and moderated you, if you recall.

Do you think that the incident, of which you have Bennett's account, warrants an ethics investigation by the Stae? If so, why, exactly?

Also, do you think it may not be in Bennett's client's interests to have his attorney go nuclear over a relatively small incident? Isn't it possible that there are more considerations at play thatn what you deem them to be?

Rage Judicata said...

Do I think an attorney should be sanctoioned for filing a false document that he affirmed was accurate when he filed it? Upon which a judge based his ruling in the absence of the defendant's counsel, who didn't appear because he never saw the document?

Uhhhh. Yes.
It doesn't surprise me that you don't.

Do I think he decided not to go nuclear to benefit his client? Maybe that's how he justified it, and certainly that's a ruse that prosecutors hide behind, knowing that they can do just about anything because they'll just refuse to plead that lawyer's cases in the future (I've seen the equivalent done by plaintiff's lawyers in counties along the coast countless times). But I think he did it more because he was afraid of losing criminal appointments, or to benefit future clients, which is unethical. Basically, if he doesn't file against the prosecutor, the prosecutor will continue to scratch his back in the future, trading this client's case for the ease of future clients.

Rage Judicata said...

And as for being moderated in the past, yes, I remember telling him why he was wrong in a post, and instantly earning moderated status as a result.

Speaks volumes for him.

Arthur Seaton said...

It is amazing that it takes about 2 seconds for you to be an asshole, and put words in my mouth. Who says that I don't think an attorney should be punished for filing a false document? I didn't. Never have, never will, jackhole. Is making a mistake the same as intentionally filing a false document? Nope. Only a blowhard of a dickhole would suggest so--which i guess means you.

You, of course, will pretend it's a red herring to again note that you absolutely nothing about criminal law, appointments, prosecutors "refusing" to plead an attorneys cases (no one does that, ever), etc., but the fact remains you don't know shit about criminal law, and you don't shit about those who prosecute and defend int he system.

Kudos, lord of all assholes. your kingship is safe.

Anonymous said...

Regardless of whether the failure to serve the motion was unintentional, how is it possible to unintentionally ex parte a judge? The order was signed.

Rage Judicata said...


Nail on the head my friend.

Prosecutors will assume it was all a big mistake, but even Bennett outs the guy as a liar. Which makes his inaction indefensible.

I'll continue to be king dickhead though, it's good to be the best at something. I only hope that someday Seaton will know how it feels to succeed at even the smallest of things.

Good luck Seaton, if you keep it up I bet you'll surpass even me.

Anonymous said...

Make that four.

Anonymous said...

I discovered your blog from reading Bennett's. I'm appalled at the shenanigans regarding the no bond motion. I practice only in fed court, and I don't believe I've ever seen such conduct out of an AUSA or a judge. I do admit to being conflicted regarding the grievance issue; it's very easy to see a future filled with vindictive retaliation for any and all future clients who are prosecuted by the same DA or who appear before the same judge. I'll have to think about it. . .I might give the DA one chance; I know I would grieve the second offense. Thanks for the stimulating Saturday morning mental gymnastics. I think these types of discussions--including the feuds--ultimately makes us better lawyers.

Rage Judicata said...

Thanks for posting, and I agree that you don't see these sorts of issues in the majority of our profession. I have never seen an attorney in a civil setting file such falsehoods, and can see why an AUSA wouldn't need to. The feds hire quality folks, whereas state prosecutors are, with few exceptions (even fewer in large offices like Harris County), some of the least likely to have done well in school and have to take a low paying job just to have a job. It's rare that, as Greenfield points out on Simple Justice, a quality lawyer with money or from a wealthy family will turn to working for the government as a form of service to repay the benefits he has received. That's made painfully obvious in state DA's offices because when people leave they become defense lawyers and rarely seek government employment.

I can count on one hand the number of lawyers I went to school with who did well and became prosecutors. Most were from small towns and all wanted to go back and stay in their home town. One had a passion for prosecution crimes against children. The rest? Generally the bottom of the barrel, the ones in school that you knew would do anythng to win regardless of ethics or the law.

I don't really say this to denigrate all prosecutors, so much as to point out that because many of them aren't the sharpest tacks and generally will flout the rules to win, it creates a recipe for disaster when you combine those propensities with the power of the state, which to me is more of a threat to our liberty than Bin Laden ever could have been. Think of things like Rosenthal ordering the wholesale destruction of DNA evidence after someone was exonerated using DNA. Or the prosecutor in Austin who failed to give Brady material (the ID of a witness who couldn't ID the defendant) resulting in a new penalty phase of her trial--although to me that may warrant a new guilt/inocence phase as well...

Until we start hitting the unethical ones, nothing will change.

A good way to do it may be to have groups like the defense bar in general file complaints in much the same way as lots of lawyers (including me) signed the petition against Sharon Keller. It's always easy to hammer the one nail that sticks out, but if large groups of lawyers team up to file grievances then the gov't would be hard-pressed to single anone out.

Gee, I wonder of anyone we know is the president of such an organization, that might work together to actually fight abusive prosecutors? HMMMMMMMM....