Former hand surgeon Michael Brown was not a well-loved defendant around Houston, but then, few guys coke-tooting guys accused of assaulting their wives are embraced with much warmth.  No matter, since Dick DeGuerin  beat the charge and Brown was acquitted. 

But after the acquittal, as jurors met with the lawyers in the case and sought to satisfy their curiosity, things got hot.  In Op-Ed for the Houston Chron, Brian Wice, a member of the defense team, explains:

Late Tuesday morning, in the jury room off state District Judge Jim Wallace’s 15th-floor courtroom at the Harris County Criminal Justice Center, I found myself facing the 12 jurors who, a little less than an hour before, had acquitted Michael Brown, the high-profile CEO of the Brown Hand Centers, of assaulting his estranged wife, Rachel. The jurors had asked to speak with lead defense counsel Dick DeGuerin, co-counsel Catherine Baen and me, as well as the two prosecutors.

*  *  *

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about “the real Michael Brown.” In a matter of moments, and over DeGuerin’s objection, the prosecutor tainted the jury with the details surrounding Brown’s plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown’s character and reputation – the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Apologies for the length of the quotes, but Wice is an appellate lawyer.  The gist of what they learned from the jurors was that they didn’t find Brown’s wife credible. 

Wice goes on to note that such conduct could violate Texas Disciplinary Rule 3.06, “which prohibits any lawyer from making any post-verdict comments to a juror ‘calculated merely to harass or embarrass the juror or to influence his actions in future jury service.’ “

Some junior Harris County prosecutor got a little too hot under the collar, hearing of the juror’s rejection of the prosecution, and just couldn’t muster the self-restraint not to smear the already-acquitted defendant?  Well, he was still hot as Wice’s commentary hit the streets.  Hot enough to leave this comment:

I am the “out of line” prosecutor. My name is Nathan Hennigan. Wice didn’t want to call me by name, but I feel a necessity to respond, as most don’t know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn’t a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from “Who Framed Roger Rabbit.” Uncanny.

What happened in the jury room is as follows…Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I’ve ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right. Even if it isn’t easy.

I’ve broken the comment into two paragraphs to make it easier to digest, if not easier to read.  So Nathan felt is was [his] duty to “explain the truth?”  So Nathan thought Brown was the “worst person” he’s ever dealt with?  And he doesn’t like Wice, who reminds him of a cartoon weasel, which is clearly of sufficiently grave importance that Nathan feels constrained to point it out.  A bit more truth, no doubt.

Hennigan is correct, it’s not easy.  It’s not easy to lose a case that was universally seen as a slam dunk.  It’s not easy to lose a case against a man that was despised and despicable, the “worst person” he ever dealt with.  It’s not easy to lose when this “worst person” has a weasel by his side.  But Nathan Hennigan, you lost. You lost.

This paragraph could be an homage to grace in defeat, but nobody needs to read something so obvious.  It could also be a cautionary tale about anger and immaturity getting the better of a prosecutor, but the same is true.  Instead, I’m going straight to the heart of the matter: Nathan, whatever demons fill your baby head, you violated Disciplinary Rule 3.06. 

Not surprisingly, my personal knowledge of Texas disciplinary rules is somewhat inadequate to make such an assessment.  I therefore turn to someone more knowledgeable than me, and as luck would have it,  Mark Bennett wrote at some length about this particular rule.

Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it’s a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)

The things that the jury didn’t hear about in trial, they didn’t hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it’s likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.

It’s almost as if Bennett anticipated Nathan Hennigan’s emergence as the angry, graceless loser, whose outrageous lack of self-control compelled him to “explain the truth.”  That this happens to be Nathan’s truth, his graceless loser truth, is of little consequence.  Nathan Hennigan is of little consequence.  Having lost the big case, the slam-dunk win that no prosecutor could possibly lose, Nathan has already shown the world that as a lawyer, he sucks.  Having called Wice a weasel because, well, he has no control over his anger and impulsivity, he’s shown the world that as a person, he sucks.

But as a prosecutor, he has violated the disciplinary rules by poisoning a jury in violation of DR 3.06.

 I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right.

Yes, the zealot’s call to arms, to “fight for what is right.”  And what is right in the twisted mind of Nathan Hennigan is violate the disciplinary rules and his oath of office because little Nathan is all angry.  A prosecutor, however, doesn’t have the latitude to indulge his personal fantasies. He is a state actor, given power and authority by the state, whether he deserves it or not.  Having abused that power by poisoning a jury, there’s no refuge by whining that he’ll “fight for what is right.”

Harris County District Attorney (and former judge) Pat Lykos is a grown up.  Let’s see whether she gives her baby lawyers a damn good spanking for this outrageous exhibition of impropriety and immaturity.  It may well have been a disgrace that her office lost this case, but a loss hardly brings the kind of shame upon the office that Hennigan’s conduct does.

Update: It appears that consequences have been swift for Nathan. From Bennett’s Defending People :

Now—because of his DR violation? because of his Chronicle comment?—this prosecutor has been suspended for a week and moved to the intake division of the DA’s Office for six months.

How will his conduct stack up under Bennett’s Law of Rules? Will he take the punishment as a badge of honor, “proud to fight for what is right,” or will he take his marbles and go home?

Will Nathan be willing to suffer the consequences of his proud fight?  We shall see.  In the meantime, former Harris County prosecutor, purged by Pat Lykos, and alleged barbecue hater, Murray Newman, feels quite differently about Brian Wice’s op-ed.