What’s going on with the D.A. Mark Skurka’s Office in Corpus Christi?


The Corpus Christi District Attorney’s Office has a serious problem with prosecutorial misconduct, or, at least, the persistent appearance of it. It is a subject we tackled in a recent post. Nueces County criminal court judges appear to be fed up with both the antics and tactics of DA’s office. Three state district court judges have reversed several convictions obtained through prosecutorial misconduct over the past three years.


On February 4, 2016, the Thirteenth District Court of Appeals took notice of the District Attorney’s misconduct in its handling of the case of Lee Francis.


Class A DWI


The Nueces County District Attorney’s Office charged Lee Francis with driving while intoxicated, a class A misdemeanor.


Both Sides Announce Ready for Trial


From the trial record, the appeals court ascertained that on June 5, 2014, both the State and Francis’ attorney announced they were “ready” during a docket call.


On June 9, 2014, the District Attorney’s office informed the trial court that again they were “ready” to proceed to trial.


The trial court took the parties at their word.


Jury Picked, State Not Ready


The trial judge swore in a jury venire panel comprised of thirty panel members and voir dire commenced. Six jurors were selected by the parties, seated, and informed by the judge that they would be recalled to serve as jurors during the week.


The trial record states that on June 10, 2014, the jury was called and the jurors were instructed to return for duty on June 11, 2014.


State Files Motion to Dismiss


Francis’ attorney informed the appeals court that at “4.45 p.m.” an assistant district attorney advised the trial court, outside the presence of defense counsel, that the State did not want to proceed to trial because one of its witnesses’ was absent. The ADA presented the judge with a generic one page motion to dismiss and order, citing “prosecutorial discretion” as the basis for the dismissal request.


Upon learning about this maneuver, Francis’ attorney objected to the State’s motion to dismiss without prejudice. Defense counsel told the trial judge that the State had not shown “sufficient cause” for a “without prejudice” dismissal.


In support of this objection, defense counsel told the court that the ADA had led the defense to believe that all his witnesses were ready for trial.  Most likely in an attempt to demonstrate their zeal to try the case and persuade Francis to plead, which often happens.


Prosecutor Used Motion to Dismiss to Attempt “Continuance”


It didn’t take the trial judge long to see through the sneaky, underhanded maneuver the ADA was employing.  In practical terms the prosecutor wanted to continue to trial to another date, when their witnesses would be ready without filing a motion to continue and requesting a continuance from the judge.


The following morning, June 11, 2014, the trial judge stated for the record that he had accepted “in hand” the State’s motion to dismiss. After inquiring about whether the DA’s office planned to refile the charge against Francis, and if so, why it had not moved for a continuance.


The ADA, according to the judge, “suggested” that the DA’s office planned to refile but had not formally moved for a continuance to do so.


The gasket the judge blew hit the ceiling.


Judge Controls Docket, Not Prosecutor


“This is an attempt to control the docket of this court,” the judge to the ADA, “and apparently even the judiciary and to deny equal protection to a citizen under our constitution and use the—and use and abuse the double jeopardy rulings in this case.”


Francis’ counsel immediately told the judge that the DA’s office had engaged in “prosecutorial misconduct” with its “without prejudice” motion to dismiss which, counsel said, was a slight of the hand maneuver designed to violate the court’s “authority over its own docket,” and, therefore, the State was not entitled to a lenient dismissal without prejudice.


Further, because the defendant had been prejudiced by this tactic, defense counsel urged the court to grant the state’s motion to dismiss but to do so “with prejudice,” meaning the DA’s office could not refile the DWI charge.


The trial judge agreed, denying the motion with prejudice.


“That’s fine, Your Honor,” the ADA responded.


State Appeals


The State appealed. The DA’s office raised one issue on appeal: “ … on state’s motion to dismiss where jeopardy had not attached,” a trial judge cannot enter a dismissal order with prejudice “absent a valid legal reason.”


Normally that argument would have merit because a trial judge cannot dismiss a case without the State’s consent, and the ADA in the Francis case had not consented to a dismissal against Francis with prejudice.


Prosecutorial Misconduct


The District Attorney’s victory dance, however, was cut short by one significant underlying fact—its own prosecutorial misconduct. The appeals court explained:


“… the Texas Court of Criminal Appeals has allowed trial court’s discretion to dismiss cases with prejudice and has stated that in cases involving egregious prosecutorial misconduct, due process violations, or due course of law violations, dismissal with prejudice is permissible to neutralize constitutional violations …  On appeal the State has neither challenged appellee’s argument to the trial court that he was entitled to dismissal with prejudice due to, among other things, prosecutorial misconduct and a due process violation nor the trial court’s finding of an equal protection violation. In absence of any opposition, these unchallenged findings and allegations would give the trial court discretion … to rule as it did. Thus, we cannot conclude that the trial court abused its discretion in dismissing the case with prejudice.”


It’s difficult for us to fathom why an ADA would engage in such blatant underhanded misconduct in a Class A misdemeanor case. It reflects, we believe, that prosecutorial misconduct is systemic in the Nueces County District Attorney’s Office.  This case is just a small glimpse at a pattern of apparent prosecutorial disrespect towards the courts, the law of the land and the defendants over whose lives and reputations the DA holds power.  As we have said before, it is high time for an independent investigation of the DA’s Office.