Most of the time, the complaint amongst lawyers is that they can’t find anyone to help them out in a difficult case, whether it’s because they’ve overreached or because they just can handle the scope of work. So you would think that an offer to help from someone as well-regarded as the Texas Tornado, Mark Bennett, would be well received. You would think.
Instead, Bennett was reminded of the adage that no good deed goes unpunished.
A couple of weeks ago I wrote about this British guy who has (as of today) been sitting in the Harris County Jail for more than three weeks, charged by complaint with the class C misdemeanor of aiding suicide.
The 351st District Court, where his case is pending, has no jurisdiction over a class C misdemeanor case. The maximum penalty for a class C misdemeanor is a $500 fine. The guy discharged that fine with his first ten days in jail.
Mind you, the British guy isn’t Bennett’s client, and he’s not getting paid to spend valuable thinking time pondering the fact that a man sits in jail, and sits in jail, after the maximum sentence possible after a conviction would have been completed. And yet still sits in jail.
Being a helpful sort of fellow, Bennett offers a hand.
So I go to see the guy in jail and offer him my pro bono help. I don’t want money, and I don’t want publicity. I just want to try to get him out from under these charges and back to his life, and I think I can bring more resources to bear on the problem than his court-appointed lawyer can or will.
Led to water, the horse didn’t drink. That’s okay. I emailed Dionne Press to offer her my help in filing a writ of habeas corpus to extricate the guy from jail. That horse wasn’t thirsty either. I wasn’t surprised—like I say, I have dealt with her before.
At this point, news of the situation began to spread a bit, the question being why Press had no interest in a little help in freeing her client. The first impression was that Dionne Press might be enjoying her moment in the sun a bit too much, and didn’t want to share the tan.
What makes this curious is that Press is assigned to the case rather than retained. It’s one thing for the defendant to have made a choice of counsel, bearing the consequence of a poor decision, but when counsel is assigned, the defendant has little choice in the manner in which the lawyer handles their case. This makes a defendant’s sitting in jail awaiting someone to do something to free him a significantly different issue: he’s paying a price for an omission by something thrust upon him rather than chosen by him. This isn’t quite what Gideon had in mind.
Yet, Bennett’s offer to help was rebuffed. Well, actually, rebuffed doesn’t quite tell the story.
Today I learned that Dionne Press had complained to the DA’s Office, trying to get them to file criminal charges or a bar complaint against me.
Nice. A defendant sits in jail because his assigned lawyer, who has plenty of time to talk to the media, can’t be bothered to get her client out of jail. And still sits in jail while she’s busy pressing the District Attorney to charge Bennett with Offering to Help in the First Degree. Even in Texas, this isn’t a crime.
My visit to her client passes muster under both the Texas Disciplinary Rules of Professional Conduct and the Texas Penal Code—solicitation of pro bono work doesn’t violate either (in fact, it’s in the best traditions of the bar). But Dionne Press is not the sort of lawyer whom I would expect to have more than the sketchiest familiarity with the rules or the law. So I was not shocked.
While Press may not be any more familiar with with ethical obligations relating to an offer of pro bono representation than she is with that habeas corpus thingy, what is shocking is that the irony of her tangential efforts on her own behalf don’t seem to phase her while the defendant remains in a cell.
Pissed that some hotshot lawyer has offered a hand and might take the spotlight off you? Then get the defendant out, after which you can be as big a hero as you want to be, and complain about others if that’s what floats your boat.
But with the British guy sitting in a jail cell, and you smacking the hand offered to help your client, it seems like a bit of shaming is in order. This isn’t the way to get a sweet profile in the Chronicle and a TV show of your very own.
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One of my happiest days as a lawyer – not most profitable financially, but happiest – occurred 6 months ago in District Court in Montgomery County, MD. A pro se defendant was being prosecuted for alleged driving while suspended case which, in MD, is theoretically jailable and as charged was perhaps really jailable. The prosecutor was getting a great deal of hearsay and self-incriminating material into evidence from the officer, but made a fatal mistake in failing to get the officer to ID the location of the offense, which under MD’s constitution and basic principles of due process should kill the case.
I was in court having pled out my own paying client’s case on very favorable terms, and was awaiting a dispo sheet from the burdened clerk. Seeing this unfair beat down going on while waiting, I stood up at the end of the State’s case and requested of the bench that I be appointed as pro bono counsel for the Defendant. The judge looked mildly surprised, then said it was fine if the defendant was fine with it, which he was. I shook the defendant’s hand, told him to say NOTHING in his defense and let me make a motion.
The court then dismissed the case on my defense motion for acquittal for lack of subject matter jurisdiction, since location is jurisdictional and not mere venue in MD criminal cases. I sat down with the thanks of the Court and to the smiles and nods of a room full of my sisters and brothers in the Bar. I suspect that the judge might have dismissed the case on her own, but who knows? Glad my client didn’t find out.
Had Ms. Press been in the courtroom, perhaps she would have had me prosecuted for (non-existent) barratry or at least a (non-existent) violation of Rule 7.3, in militant ignorance of that rule’s terms, of the hortatory duty of 6.1 (pro bono) and of her own duties under rule 1.1 and basic ethics in the general sense (competence.) Very, very glad she is not a Marylander. Hope Mark Bennett grieves her himself.
Mark is a great lawyer and deserves better.
This is a great story. It’s tough to say whether the judge would’ve reached subject matter jurisdiction sua sponte. I don’t know the rules in Maryland, but it looks like subject matter jurisdiction in Maryland courts is a permissive inquiry where neither party raises it as an issue (see, e.g., Lewis v. Murshid, 807 A.2d 1170 (Md.App. 2002). However, other cases suggest something akin to a duty rather than discretion (see Hosain v. Malik, 671 A.2d 988 (Md.App. 1996) (“Consideration of matters that go to the merits of a cause before a determination of the question of jurisdiction-when there is such a question-runs counter to accepted rules of procedure.”).
Either way, you made the right choice. At the end of the day, it doesn’t matter what the judge *might* have done. What matters is what the judge *did* do on account of your motion. A dismissal that was speculative became reasonably certain on account of your efforts. Wear that feather high.
In criminal cases, it’s jurisdictional under Article 20 of the Maryland Declaration of Rights – and thanks!
I considered deleting your first comment as it was off topic and shamelessly self-aggrandizing. If you wish to continue commenting here, do not do this again.