# Delay lawyers subpoena Earle **URL:** \ **Category:** Great Debates\ **Created:** [October 12, 2005, 12:08am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822 "2005-10-12T00:08:57Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 12:08am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/1 "2005-10-12T00:08:57Z")
More of a GQ than GD, but I thought it might lead to GD territory. From [here](http://www.guardian.co.uk/worldlatest/story/0,1280,-5337252,00.html): > [@](#): > > Lawyers for indicted Rep. Tom DeLay on Tuesday subpoenaed the prosecuting Texas district attorney in an effort to show he acted improperly with grand jurors. > > The subpoena for Travis County District Attorney Ronnie Earle, filed in Austin, asked that the prosecutor and two of his assistants appear in court to explain their conduct. 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. ---
**Author:** ![AskNott](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asknott/32/5790_2.png) [@AskNott](https://boards.straightdope.com/u/AskNott)\ **Post date:** [October 12, 2005, 12:30am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/2 "2005-10-12T00:30:53Z")
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. Poor, poor, Tom DeLay. :rolleyes: ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 12, 2005, 12:34am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/3 "2005-10-12T00:34:04Z")
> [@squeegee](#): > > More of a GQ than GD, but I thought it might lead to GD territory. > From [here](http://www.guardian.co.uk/worldlatest/story/0,1280,-5337252,00.html):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 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… ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 12:38am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/4 "2005-10-12T00:38:39Z")
Thanks for the clarifying. > [@Polycarp](#): > > …it will likely, in fact, be quashed as events unroll How would the subpoena be quashed? What is a likely course of events? Thanks. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 12:40am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/5 "2005-10-12T00:40:42Z")
> [@squeegee](#): > > OK, I thought subpoenas were issued by judges, not lawyers? Or can I (through my lawyer) subpoena someone if the mood moves me? 1. In many jurisdictions, lawyers can sign and issue subpoenas. In Texas, apparently the court clerk, [issues](http://www.capitol.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000024.00.htm#24.01.00) the subpoena or an application for a subpoena. [http://www.capitol.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000024.00.htm#24.03.00](http://www.capitol.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000024.00.htm#24.03.00). 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. > [@](#): > > And just what is the legal action being adjudicated here? Criminal charges against DeLay. > [@](#): > > 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)? 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 [prosecutorial](http://news.yahoo.com/s/ap/20051008/ap_on_go_co/delay_indictment;_ylt=An7_h2xkdp6SoGW0Jf1Pre08KbIF;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl) [misconduct](http://writ.news.findlaw.com/cassel/20040212.html). [link](http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_5/green.pdf) (pdf). He would probably like to sue for malicious prosecution, but in order to do that he must win the criminal case first. [http://www.4thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=16151](http://www.4thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=16151) 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. > [@](#): > > Is subpoening a prosecutor even proper? Sometimes, sure. Most jurisdictions don’t prohibit it, and if you are claiming discriminatory prosecution, the testimony is relevant. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [October 12, 2005, 12:46am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/6 "2005-10-12T00:46:14Z")
> [@Polycarp](#): > > I suspect that DeLay’s apparent attitude that whatever he wants to do is _ipso facto_ legal and beneficial to the country… Even a Nixon republican should know that principle only applies to the _president_. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 1:23am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/7 "2005-10-12T01:23:43Z")
> [@Gfactor](#): > > He might try to sue for injuctive relief, but federal courts will not hear such matters, and state courts usually won’t either. Apologies, I only speak rudimentary lawyerese. Is this another way of saying he could seek an injunction of some sort against Earle? > [@](#): > > So his only remedy would be to seek dismissal of the case based on prosecutorial misconduct, which is what he is doing. I’d also guess that this action isn’t only aimed at Earle or the criminal case, but at the court of public opinion. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 1:53am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/8 "2005-10-12T01:53:08Z")
> [@squeegee](#): > > Thanks for the clarifying. > How would the subpoena be quashed? What is a likely course of events? Thanks. 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_](http://www.law.cornell.edu/supct/html/95-157.ZO.html) , 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. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=451&page=623](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=451&page=623) (claim of politically selective prosecution could wait until conviction in state court). [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9650070](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9650070) (threshold not met). 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: > [@](#): > > In Wade v. United States, 504 U.S. 181 (1992), we considered whether a federal court may review a Government decision not to file a motion to reduce a defendant’s sentence for substantial assistance to the prosecution, to determine whether the Government based its decision on the defendant’s race or religion. In holding that such a decision was reviewable, we assumed that discovery would be available if the defendant could make the appropriate threshold showing, although we concluded that the defendant in that case did not make such a showing. See id., at 186. We proceed on a like assumption here. > > A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. These cases afford a “background presumption,” cf. United States v. Mezzanatto, 513 U. S. \_\_\_, \_\_\_ (1995) (slip op., at 8) that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims. > > A selective prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. Heckler v. Chaney, 470 U.S. 821, 832 (1985). The Attorney General and United States Attorneys retain " `broad discretion’ " to enforce the Nation’s criminal laws. Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3; see 28 U.S.C. §§ 516 547. As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). > > Of course, a prosecutor’s discretion is “subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,” Oyler v. Boles, 368 U.S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). _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](http://www.supremecourt.nm.org/pastopinion/VIEW/01ca-034.html) \*But see, \*[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/943285.html](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/7th/943285.html) (Posner, J.) (claim that mayor convicted defendant as part of a campaign of harrassment stated a valid civil claim under section 1983) (recognizing that an equal protection claim could be made by a “class of one.”) _and see_, [VILLAGE OF WILLOWBROOK v. OLECH](http://straylight.law.cornell.edu/supct/html/98-1288.ZPC.html) (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.”) Can DeLay meet that standard? I’m not sure. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 12, 2005, 2:15am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/9 "2005-10-12T02:15:15Z")
As officers of the court, attorneys in Texas may issue subpoenas. No judge or clerk of the court is necessary. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 12, 2005, 2:18am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/10 "2005-10-12T02:18:11Z")
> [@minty green](#): > > As officers of the court, attorneys in Texas may issue subpoenas. No judge or clerk of the court is necessary. 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_). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 2:18am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/11 "2005-10-12T02:18:23Z")
> [@squeegee](#): > > Is this another way of saying he could seek an injunction of some sort against Earle? Right. Problem is > [@](#): > > federal courts are barred from enjoining proceedings in state courts. (28 U.S.C. § 2283) Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other’s proceedings. Nevertheless, there are statutory exceptions to the prohibition enacted by Congress: (1) “except as expressly authorized by Act of Congress”; (2) “where necessary in aid of its jurisdiction”; and (3) “to protect or effectuate its judgments.” Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. (Id.) [http://www.ctd.uscourts.gov/Opinions/010405.MRK.Sullivan.pdf](http://www.ctd.uscourts.gov/Opinions/010405.MRK.Sullivan.pdf) (pdf) (\*Younger \* doctrine prohibits court to enjoin state criminal proceedings). 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](http://en.wikipedia.org/wiki/Mandamus) to the lower court. [http://www.cca.courts.state.tx.us/opinions/74760.htm](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. > [@](#): > > I’d also guess that this action isn’t only aimed at Earle or the criminal case, but at the court of public opinion. Uh, yeah. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 2:20am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/12 "2005-10-12T02:20:43Z")
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. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 2:24am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/13 "2005-10-12T02:24:09Z")
> [@Gfactor](#): > > Uh, yeah. Well, obviously any idiot can see this is grandstanding by Delay’s lawyers. I’m wondering if there’s any point to this, legally, _beyond_ grandstanding. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 2:29am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/14 "2005-10-12T02:29:53Z")
> [@minty green](#): > > As officers of the court, attorneys in Texas may issue subpoenas. No judge or clerk of the court is necessary. That’s cool. I see the rule in [civil](http://www.megalawserve.com/states/tx.php) cases (176.4). I can’t seem to find a similar rule for criminal cases online. But I’ll take your word for it. Thanks **minty** ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 2:38am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/15 "2005-10-12T02:38:14Z")
> [@squeegee](#): > > 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. > [@](#): > > I’m wondering if there’s any point to this, legally, beyond grandstanding. 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: 1. Potentially alienating the judge. 2. Losing the motion in an embarrassing way, which might make his entire defense appear weaker. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 2:57am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/16 "2005-10-12T02:57:13Z")
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](http://www.guardian.co.uk/worldlatest/story/0,1280,-5337252,00.html) and [others](http://www.alternet.org/story/26201/) have called the prosecution selective–as grand jury misconduct. How embarrassing. It was right in the first sentence of the article. The subpoena was part of “an effort to show he acted improperly with grand jurors.” [http://www.guardian.co.uk/worldlatest/story/0,1280,-5337252,00.html](http://www.guardian.co.uk/worldlatest/story/0,1280,-5337252,00.html) > [@](#): > > DeGuerin wants Earle to answer 12 questions about conversations he had with grand jurors, including whether the prosecutor became angry when a grand jury decided against an indictment of DeLay and why the decision was not publicly released. > > He also wants to know the details of Earle’s conversation with William Gibson, foreman of a grand jury that indicted DeLay on conspiracy charges and whose term has since ended. \*Id. \* > [@](#): > > In a motion filed last week, the defense team said that **from Sept. 29 through Oct. 3, Earle and his staff ``unlawfully participated in grand jury deliberations and attempted to browbeat and coerce’’ the grand jury that refused to indict DeLay.** > > The motion said **Earle then attempted to cover up and delay public disclosure of the refusal, and also ``incited’’ the foreman of the first grand jury to violate grand jury secrecy by talking publicly about the case - in an effort to influence grand jurors still sitting.** (Emphasis added). So that’s his claim. Also, > [@](#): > > The lawyers said **Earle then spoke about the case with members of the first grand jury, whose work was finished, to get their opinion of what they might have done if they had known their conspiracy indictment was flawed** - as defense attorneys alleged. > > **Earle then submitted the grand jury opinions to the third grand jury to persuade it to hand down the money laundering indictment** , the defense team contended. (Emphasis added). ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [October 12, 2005, 3:21am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/17 "2005-10-12T03:21:12Z")
> [@Gfactor](#): > > I can’t seem to find a similar rule for criminal cases online. 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. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 3:28am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/18 "2005-10-12T03:28:51Z")
Here is a [case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=088&invol=0400) where a court dismissed an indictment based on prosecutorial grand jury misconduct. And [here](http://www.usdoj.gov/atr/cases/f1100/1164.htm) is a DOJ brief on the issue of dismissal based on prosecutorial grand jury misconduct. This [opinion](http://www.paed.uscourts.gov/documents/opinions/05D0007P.pdf) collects cases on what it takes to get a federal court to dismiss an indictment on these grounds. > [@](#): > > 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. 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.) ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [October 12, 2005, 4:29am UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/19 "2005-10-12T04:29:34Z")
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. 😛 ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 12, 2005, 1:09pm UTC](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822/20 "2005-10-12T13:09:48Z")
Regarding issuance of the subpoena: > [@](#): > > DeGuerin said acceptance of the subpoena was voluntary Tuesday because it had not been stamped by a court official, but added the defense team would go through the court procedure Wednesday and redeliver it. He said Earle, district attorney for Travis County, would then be obligated to accept the subpoena, but could file a motion to have it dismissed. [http://www.cnn.com/2005/POLITICS/10/11/delay.prosecutor.ap/index.html](http://www.cnn.com/2005/POLITICS/10/11/delay.prosecutor.ap/index.html) Regarding quashing the subpoena: > [@](#): > > He said Earle, district attorney for Travis County, would then be obligated to accept the subpoena, but could file a motion to have it dismissed. Regarding what they are seeking: > [@](#): > > The subpoenas asked that the prosecutor and the two assistants appear in court or submit to a deposition in which the defense lawyers would question them. > > DeGuerin also asked that grand jurors be released from their secrecy oath so they could answer questions about the prosecutor’s conduct. [Next page](https://boards.straightdope.com/t/delay-lawyers-subpoena-earle/325822.md?page=2)