When Prosecutors Try to Bully Defense Attorneys

What happens when prosecutors try to bully defense attorneys to get what they want?

Prosecutors have a lot of power. And, despite what you may think, they have remarkably little oversight. Judges are loathe to make a finding of prosecutorial misconduct on the record, no matter how egregious the conduct. The Office of Disciplinary Counsel rarely takes action against a prosecutor, even when the evidence of misconduct is clear.

And appellate courts rarely overturn a conviction based on a prosecutor’s misconduct – even when they find that there was misconduct, it is likely that the court will also find that the misconduct was “harmless error” and therefore the defendant’s conviction stands.

So, when a prosecutor threatens or bullies a defense attorney who is trying to do their job, what recourse does the defense lawyer have?

San Antonio Prosecutor Threatens Defense Attorneys in Front of Judge

San Antonio District Attorney Nico LaHood was in the middle of a murder trial when he revealed to defense attorneys that his star witness, who was also an uncharged suspect in the murder, had a sexual relationship with another prosecutor in his office:

In February, San Antonio District Attorney Nico LaHood allegedly did just that. LaHood was prosecuting Miguel Martinez, who stood accused of shooting a graduate student named Laura Carter in the head during a drug deal gone bad. Martinez’s trial derailed soon after it began. On the second day, the government disclosed that its star witness, who was also a possible suspect in the killing, had once had a sexual encounter with a prosecutor in the DA’s office. The defense argued that the relationship gave the witness a motive to help the government and gave the government a reason not to investigate or charge the witness. The defense accused prosecutors of violating their constitutional duty by failing to disclose that information before trial. The defense lawyers asked for a mistrial and indicated they may ask the judge to bar further prosecution.

It’s an obvious Brady violation, and the prosecutor has an obvious ethical dilemma that implicates his staff. How did he respond?

In chambers, in front of the judge, he threatened to shut down the defense lawyers’ practice and win the trial next time if the judge granted the mistrial:

According to defense pleadings, LaHood threatened to shut down the opposing counsels’ practice during a meeting in the judge’s chambers. He allegedly said he would “go to the media and do whatever it took” and that he did “not care what happened to him.” Their client would also be at risk, LaHood allegedly said, because he would be “better prepared for trial the next time” and he would “pick a better jury.”

At a hearing a month later, under oath, the prosecutor testified that he never threatened the defense lawyers and that their allegations of misconduct were false. The judge also testified at the hearing, confirmed that the prosecutor was lying, and explained how the prosecutor committed a crime when he made the threats:

She described how, without provocation, LaHood had threatened to make sure the defense lawyers never got appointed on another case, becoming so enraged that she feared “somebody would get hurt physically.” She explained that LaHood may have committed misdemeanor official oppression, a crime that occurs when an official uses his power to “mistreat” others or impede them in the exercise of their rights.

As far as I can tell, the prosecutor has not been charged with any crime or suffered any consequences. One defense attorney filed a grievance with the state bar, but the second defense attorney on the case has not, in part because he is concerned about the consequences of filing a grievance on a prosecutor:

“I have worked on it, but I haven’t pulled the trigger yet, because it’s been a difficult thing to do,” he told me, adding, “I don’t fully know what the consequences will be.”

Which is par for the course – defense lawyers don’t file grievances on prosecutors because 1) disciplinary counsel will not do anything; 2) the defense lawyer may be the one who is disciplined; and 3) the defense lawyer and his clients may be retaliated against by the prosecutor’s office.

What Can Defense Lawyers Do When Prosecutors Step Over the Line?

For the most part, judges, prosecutors’ supervisors, SC appellate courts, and the Bar will do nothing to reign in a prosecutor who engages in unethical practices, including attempts to bully defense lawyers.

Judges will rarely call out a prosecutor for unethical behavior unless it is directed at the judge. If a defense lawyer were to go to a judge and complain that the prosecutor is threatening them or “bullying” them, the judge would probably think to himself or herself that this is something the defense lawyer should be able to handle… some judges would laugh about it. Few judges would intervene.

Prosecutors’ supervisors are also… prosecutors. In many cases, rank and file prosecutors take their cues from their boss or their direct supervisors. In most cases, supervisors at a prosecutors’ offices will not only 1) take their colleagues’ side in a dispute but may also 2) escalate the dispute.

Appellate courts in SC will rarely reverse a conviction for prosecutorial misconduct, including threatening conduct directed to a defense lawyer or defense witness. In most cases, they will sidestep the issue. Rarely will they call misconduct what it is. When they do find prosecutorial misconduct, they do not reverse the conviction because it is likely to be “harmless error” (there was enough evidence to convict regardless of the prosecutor’s misconduct).

The Office of Disciplinary Counsel rarely disciplines prosecutors, and most defense attorneys will not file a grievance on a prosecutor for unethical behavior because 1) they know that nothing will come of it; and 2) they fear negative consequences to themselves, either from disciplinary counsel or the prosecutor’s office.

So, what can defense lawyers do?

First, remain professional. If a prosecutor is yelling, blustering, or threatening you, yelling, blustering, or threatening back at them will make the situation worse and some may even see it as an excuse for the prosecutor’s behavior.

Make a record. If it happens during open court, there will be a court reporter – get a copy of the transcript. Bring it to the court’s attention, on the record. If there are witnesses, talk to them and get them to write affidavits detailing what happened in case it is needed later.

Most importantly, don’t cave because a prosecutor is threatening you. It sucks. It’s an abuse of power. The effect on a defense lawyer can range from annoying to frightening. But, if you give a prosecutor what they want in response to threats, you can be sure they will continue to be abusive and make threats. Hey, if it works…

Our job is to fight for our clients. Sometimes, we must do that under the worst conditions imaginable – with prosecutors threatening our livelihood or judges threatening to put us in jail. Polite, professional, and firm resistance gets results.

Don’t punch when a soft word could achieve the same result. Don’t respond to abusive behavior with more abusive behavior – just stand firm, file your motions, put everything on the record, and try your client’s case when necessary to get the results you want.

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach, SC

Lacey Thompson is a SC criminal defense lawyer who accepts cases in the Myrtle Beach, Lexington, and Columbia, SC areas.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

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