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Bailiff relays jury impression of defense lawyer in trial texts to prosecutor

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A bailiff relayed the jury’s impression of the criminal defense lawyer—who was said to be “a pain in the butt”—in text messages exchanged with one of the Harris County prosecutors during a recent DWI trial in Texas, according to the lawyer who was critiqued.

Lawyer Jed Silverman says the bailiff and a prosecutor exchanged more than 20 messages during the three-day trial held the week of July 6, report the Houston Chronicle (sub. req.) and Click2Houston.com.

Silverman sought a mistrial after one of his associates noticed a handwritten note in a trash can that included Silverman’s name and the words “per the bailiff.” The prosecutor showed the message thread to Judge Henry Oncken, who read it into the record.

The assessment of Silverman’s performance began with a message from the prosecutor saying she hoped that Silverman was “annoying the jury.” The bailiff replied, “”He is … the jury said he’s a pain in the butt.” The bailiff told the judge he was basing his statement on jurors’ visible reactions to Silverman.

Other texts concerned a video clip of Silverman’s client on the Internet that was never introduced into evidence.

Oncken denied the mistrial, saying the behavior did not rise to the level of official misconduct. Silverman’s client was acquitted.

A spokesman for the Harris County District’s Attorney’s office said the texts were not unethical, but the conduct shouldn’t have occurred and the matter will be handled internally. The bailiff has been temporarily reassigned while an investigation is conducted.

Silverman said he doesn’t believe the texts are a firing offense, but suggested that prosecutors take classes in legal ethics.

“This case is an example of a breakdown in the system,” Silverman told the Houston Chronicle. “The person responsible for protecting the jury from any outside interference was relaying information about the jury to the prosecutor. How do you not teach prosecutors that you don’t participate in anything that could be perceived as improper?”