More of a GQ than GD, but I thought it might lead to GD territory.
From here:
OK, I thought subpoenas were issued by judges, not lawyers? Or can I (through my lawyer) subpoena someone if the mood moves me? And just what is the legal action being adjudicated here? Is this part of the Delay indictment, or did Delay’s lawyers somehow file this as a separate suit (or whatever the proper term is)? Is subpoening a prosecutor even proper?
I’m sure my confusion is mostly a result of AP’s poorly written story. If a lawyer could clarify, I’d be grateful.
I’m not a lawyer. Subpeonas are issued by judges, but at the request of lawyers on either side of a case.
In the Karl Rove era, any time Republicans get themselves into trouble, the noise machine spews out a torrent of attacks against the opposition. If you check the conservative columnists and the blogs, you’ll find that they are, in unison, painting Ronnie Earle as a raving madman, bent on destroying that fine upstanding fellow, Tom DeLay. There’s a remarkable sameness as they all work from the same talking points. His lawyers are just part of the chorus.
I don’t know the details, but you’re right in theory and wrong in practice on the issue of law. Yes, it takes a judge to issue a subpoena (there are exceptions including Congressional and state-legislative committees and grand juries, but as a general rule it takes a judge). However, they do it at the behest of the parties to a lawsuit, i.e., at their lawyers’ behest. The AP was shorthanding, “the subpoena issued by the judge at the request of attorneys representing DeLay” to the phrasing in the story.
As for propriety, subpoenaing a D.A. is certainly uncommon, but not inappropriate when the reasons for his actions are up for question. Given that a piece of DeLay’s case, perhaps most of it, is that his indictment was sought by the D.A. for political rather than law-enforcement reasons, it’s not totally improper. However (and this is injecting political opinion), I suspect that DeLay’s apparent attitude that whatever he wants to do is ipso facto legal and beneficial to the country, is the reason behind the subpoena, and that it will likely, in fact, be quashed as events unroll.
You can only subpoena someone if (a) you’re party to a lawsuit and (b) the evidence they can provide is material to resolution of the lawsuit. Or, stated a bit more precisely, you can only have your lawyers get a judge to subpoena someone if…
So yes. As long as your lawyer is willing to sign an application, which subjects him to sanctions if he lies, the clerk will issue a subpoena.
Criminal charges against DeLay.
Seems to be a tactic (I’m not using the term in a judgmental fashion here) in the criminal case. Trying to build a case for discriminatory enforcement or some other kind so prosecutorialmisconduct. link (pdf).
Believe it or not, Texas prosecutor’s and their employers have absolute immunity from suit, so even if DeLay wins the criminal case, he can’t sue the prosecutor in civil court.
He might try to sue for injuctive relief, but federal courts will not hear such matters, and state courts usually won’t either.
So his only remedy would be to seek dismissal of the case based on prosecutorial misconduct, which is what he is doing.
Sometimes, sure. Most jurisdictions don’t prohibit it, and if you are claiming discriminatory prosecution, the testimony is relevant.
Earle would file a motion to quash the subpoena, and the court would rule that he did not have to comply with it. In cases like these, the odds are better than average. In US v. Armstrong , for instance, the Supreme Court denied a criminal defendant discovery into the prosecution’s decisions becaus the defendant had failed to meet the threshold for discovery–not for winning the argument, just to get information from the prosecutor. The defendant was claiming that he was selectively prosecuted based on his race. The Court held that in order to get discovery against the prosecutor, the defendant must show “‘some evidence tending to show the existence of the essential elements of’ a selective prosecution claim.” Particularly, in that case, the defendant “failed to show that the Government declined to prosecute similarly situated suspects of other races.”
The case suggests that while a prosecutor may be compelled to testify, the defendant must first produce some evidence that would make the testimony relevant. That means that there must be a legal basis for the claim, and that the defendant must produce some evidence that the claim is valid.
This is a tough case, because few courts recognize a selective prosecution defense when the selection criteria is political motivation. And when they do, defendant’s usually can’t make the required threshod showing.
I can’t search enough Texas caselaw online to be able to tell if Texas law differs from federal law, but under federal law the cases aren’t very favorable:
Armstrong.
At least one court has read this requirement to mean that only selective prosecution based on membership in a constitutionally protected class or for the exercise of a constitutionally protected right. http://www.supremecourt.nm.org/pastopinion/VIEW/01ca-034.html
and see, VILLAGE OF WILLOWBROOK v. OLECH (approving the class of one theory “where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”)
Thanks for the correction, minty. I was speaking (as is my wont) from my own experience and knowledge regarding other states, where it takes a judge (or at least someone in loco judicis).
So really, DeLay must try to get another Texas court to stop the proceedings, or else convince the judge in his case to dismiss it. State courts are generally reluctant to restrain proceedings in other state courts. So he probably can’t simply go to another judge.
In some cases, a court superior to the one in which the case is pending can issue a writ of mandamus to the lower court. http://www.cca.courts.state.tx.us/opinions/74760.htm (mandamus was propert where trial judge was biased and failed to follow correct procedure in deciding recusal motion). But mandamus is normally only available when the rights in question are “clear and indisputable.” *Id. * That’s probably not the case here. At any rate the trial court gets to decide the issue before any other court will consider a mandamus petition. So DeLay is pretty much stuck with the judge in his criminal case.
Therefore, DeLay’s only real chance at getting the case dismissed for selective prosecution is to produce enough evidence to justify the subpoena and convince the trial judge that he has grounds for dismissal.
So, if Delay’s lawyers personally issued the subpoena, what are they expecting to recieve? Testimony from Earle in front of a judge, or a deposition in front of themselves? I can’t imagine the result of that questioning being very pursuasive to the judge or jury in the criminal case.
They are probably seeking testimony at an evidentiary hearing in support of DeLay’s motion to dismiss.
They might win. If they are able to force Earle to testify, his testimony could prove embarrassing, and might turn up additional reasons to seek dismissal. Even if they ultimately lose the motion to dismiss, if the judge requires Earle to respond to the subpoena, it implies that the judge thinks the *Armstrong *threshold has been met, which means that the judge thinks the prosecution is suspect.
Tactically, it also forces the prosecutor to do work and, in responding to the subpoena, commit himself to legal and factual positions that might come back to haunt him.
The only downsides are:
Potentially alienating the judge.
Losing the motion in an embarrassing way, which might make his entire defense appear weaker.
Hey, sometimes it helps to read the article :smack: :smack: :smack:
Apparently the claim (right now, as described to the press) is not so much selective prosecution–though DeLay and others have called the prosecution selective–as grand jury misconduct.
Okay, fair enough. It appears that a subpoena in a criminal case (my practice is, with one irrelevant exception, exclusively on the civil side) requires the attorney to make application for the subpoena to the clerk of the court. It does not appear that the clerk has any discretion in issuing the subpoena, though the court obviously has authority to quash it like a bug.
Here is a case where a court dismissed an indictment based on prosecutorial grand jury misconduct.
And here is a DOJ brief on the issue of dismissal based on prosecutorial grand jury misconduct.
This opinion collects cases on what it takes to get a federal court to dismiss an indictment on these grounds.
Right. If it’s anything like it was in the other courts where I saw this practice, it is completely a completely ministerial act. One rule actually required the clerk to issue subpoenas “in blank.” I got funny looks the time that I came in with a blank subpoena and a copy of the rule and asked them to issue it. (There was a made-up local rule that you had to file a motion to get a subpoena issued against the police department and I didn’t have time for a hearing.)
I’m (quite obviously, and admittedly) out of my depth here, plus we haven’t seen the actual filing… but what is the likelihood that the subpoenas will be quashed “like a bug” ? As a layman, it seems fairly likely that this is extra-legal grandstanding, but I’m just some jerk on a message board.
