Opinion 369

Statement of Facts Discussion Conclusion

A practice grew up in Texas for prosecuting attorneys to seek extremely long sentences, e.g. 5000 years, since in many crimes the Penal Code did not provide any maximums. This practice was held not to be reversible error in Sills vs. State (1971) 472 SW 2nd 1119; (1000 years), Ward vs. State (1971) 474 SW 2nd 471; (101 years for robbery), Yeager vs. State (1972) 482 SW 2nd 637; (500 years for murder), and Knox vs. State (1972) 487 SW 2nd 332; (1000 years for rape). The new Penal Code effective January 1, 1974, contains maximum sentences so the problem should not arise hereafter.

During jury argument of a trial for robbery, Judge [    ] of [    ] orally instructed the jury not to "embarrass the court by bringing back a ridiculous sentence like a million or a thousand years." The assistant district attorney has asked the jury in his argument for a 10,000 year sentence. The jury returned a sentence of 16 years on each of four cases. District Attorney [    ] at a called press conference denounced the Judge's admonishment to the jury, calling it "unethical and illegal and grounds for reversible error," according to newspaper accounts of the press conference.

The Sixth District Grievance Committee requested a formal opinion by the Ethics Committee to the above questions.

Disciplinary Rule 8-102 (B) provides: "A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer."

Ethical Consideration 8-6 in part provides: "Adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified."

Oral instructions to a jury are prohibited by Art. 36.16, C.C.P. The state has no right of appeal. Art. 44.01, C.C.P. The trial court should insure a fair trial to the state and the defendant. Art. 2.03, C.C.P.

Garrision vs. Louisiana 379 U.S. 64, 85 S.Ct. 209, 13 L. Ed. 2nd 125 (1964) holds under much stronger statements by a district attorney against judges which had been punished as criminal defamation: that state power is limited to false statements made with actual malice and reckless disregard for the truth.

Similar communication was held not subject to reprimand in State Bar vs. Semaan 508 SW 429, Writ ref. N.R.E.

We believe that all of the questions should be answered Αno≅ as not being in violation of any Disciplinary Rule. The Canons do not give a district attorney any more leeway than a private attorney.

Apart from a violation of the Canons and the Disciplinary Rules, which alone provide for discipline, attorneys should be guided by Ethical Considerations. The quoted language is of questionable good taste under Ethical Consideration 8-6 which prohibits inappropriate language, and unrestrained and intemperate statements which tend to lessen public confidence in our legal system.

Had the questioned remarks been made prior to the conclusion of the trial, a different result might obtain. Disciplinary Rule 7-107 (Trial Publicity) and Ethical Consideration 7-33.

The action of a district attorney in criticizing a trial judge at a press conference after trial by stating, "The actions of the judge were unethical and illegal and grounds for reversible error" does not violate any Disciplinary Rule, but is questionable under Ethical Consideration 8-6.