The Prosecutor, January-February 2008, Volume 38, No. 1

Nelson Barnes reporting for duty

2008

In the last edition of The Prosecutor, I mentioned the newly elected board members. But I forgot one: Nelson Barnes, an assistant DA in Belton, will be taking over for Catherine Babbitt of San Antonio as the Assistant At Large. Nelson had been off our radar for awhile only because he was in Afghanistan. I am confident that his service on our Board will be much less, let’s say, exciting, than his experiences “in country.” Thanks, Nelson, and not just for serving on our board.

2007 leadership takes a bow

This has been a busy year at the association: a legislative session, an office move, the first annual campaign of our new foundation, and a great summer regional series. It was brought to you by a terrific Board of Directors, and I’d like to thank some of the folks rotating off on January 1, 2008: Mike Little, DA in Liberty County; Joe Brown, the CDA in Grayson County; Catherine Babbitt, an assistant CDA in Bexar County; and Sherry Coonce, the Key Personnel Board chair from Montague County. Thank you for all of your hard work!

Make up your mind: Are we supposed to be tough or weak on crime?

I read with fascination the recent Dallas Morning News articles concerning murderers on probation in Dallas. You can check out an interesting web link on the subject at www.dallasnews.com/ sharedcontent/dws/spe/2007/unequal/. At this site you can click on pictures of folks who got probation for murder in Dallas over the years and read about the circumstances of each sentence. As a former prosecutor who tried two murder cases that ended in probation from a jury, I don’t think these cases sounded too bad: battered spouses, drug deals gone bad, and missing witnesses. Seems like that was what that broad range of punishment is for.

The CDA in Dallas, Craig Watkins, has done a good job of responding to the story and will take a look at the cases to make sure nothing has slipped through the cracks. But you have to feel for Craig and the folks in that office, given that they have most recently been criticized by the very same newspaper for being too aggressive against criminals. Gotta be odd to now be criticized for being too soft! But that just proves a point about the media: Good government is boring, so instead the media publishes stories on all sorts of topics that pick at your decision-making. And if y’all need some advice on the issue of probation for murder, give me a call—apparently I’m pretty good at getting it for a defendant.

The career path of Pat Neff

Many Texas prosecutors have gone on to fame and fortune, and a handful have even gone on to be governor of the state. You might find a recent book about one of our very own quite interesting. The Life of Pat Neff, written by Dorothy Blodgett, Terrell Blodgett, and David Scott, traces the energetic career of the former McLennan County Attorney. Neff served as the hard-nosed prosecutor in Waco from 1906 to 1912. What may be more interesting is that he actually served as the Speaker of the Texas House of Representatives before becoming county attorney. Could there be any doubt that serving as county attorney opens the doors of the governor’s mansion?

Student loan forgiveness

Both the Senate and House versions of a student loan forgiveness bill have sailed through the U.S. Congress, but like ships passing in the night, there has been no resolution of the differences in the two measures. It is likely that this issue will be revisited in the spring and summer of 2008, so let’s hope we see some movement then. And remember:  Passage of a loan forgiveness bill is the focus of the National District Attorneys Association (NDAA) at this point. If the bill passes, step two will be to hunt for funding.

Sounds like the national Congress works on the “three-session rule” just like the Texas legislature—it takes three sessions (minimum) to pass a good idea!

New York death penalty is executed

You might have read that this past November, the last of New York’s death row inmates was re-sentenced to life with parole. Queens County prosecutors had fought hard to have the death sentence of this mass-murderer carried out, but the New York appellate court decision that declared the state’s death penalty scheme flawed stood in their way.

No surprise. If you ever read the 20-page New York death penalty law, you would have told the prosecutors from the start not to even try. Indeed, when New York first passed the law, its prosecutor’s association called TDCAA to ask for the names of some Texas prosecutors who could teach their folks how to handle death penalty cases. The Texas prosecutors who volunteered did their best but predicted that the effort to carry out the death penalty in New York was doomed. You see, when a death penalty statute is passed in a political environment that requires a wholesale sell-out to anti-death penalty interests, you can pretty much guarantee a boogered-up mess of a statute. I think one prosecutor from the northern part of our state actually told them, “This dog just won’t hunt.” The New Yorkers apparently did not understand what that meant and wasted the next 15 years trying.

Déjà vu all over again

“Forced with a shortfall in state funds, a staggering prison population and an unprecedented two-year budget request from TDCJ, state officials are looking with favor at less expensive, and less punitive, ways of dealing with the prison population. … Alternative approaches to handling criminals have received endorsements [from many groups and government committees]. All of the proposals were spawned by an increasing belief that Texas is sending too many people to prison.”

Sound familiar? It should, because you have been hearing a lot of this type of talk. The legislature did a pretty good job last session of balancing these new “less punitive” concepts with capacity expansion, both in alternative sentencing options and possible hard beds. But you should expect to hear more of this talk, as fiscal conservatives join up with ACLU-types in an effort to reduce prison populations—and save money.

And the quotes about all these new ideas? They are from an article printed in the Dallas Times Herald in 1983 and reprinted in a Prosecutor Council Newsletter we discovered when we moved out of the old offices. As you might recall if you were practicing in the late 1980s, that was when the criminal justice system went to hell in a handbasket because we didn’t have any prison space. The complaint in the quote above, by the way, was that we had 36,700 inmates at the time, and if we weren’t careful, we could end up with 60,000 to 100,000 beds by 1993—as compared to current capacity, which is 155,000 beds.

State Bar credit

A quick reminder to those who are taking a TDCAA course at the end of the month in which they need to complete their MCLE hours. We at TDCAA get the MCLE cards over to the State Bar pretty quickly, but if the last day of a seminar is near the last day of the month, consider going to the State Bar website and adding in the hours yourself. Better safe than suspended.
 

“First thing we do, let’s kill all the lawyers.”

You will find this quote in William Shakespeare’s Henry VI, Part II. And you will also find plenty of debate about the meaning of the phrase. Was the Old Bard condemning lawyers or actually acknowledging that to hatch an evil plot, you needed to get the law out of the way?

I vote for the latter. Just look at the recent events in Pakistan, when the army faced off against an angry mob of displaced and ousted … judges and lawyers. Somehow, that doesn’t sound too scary. The president claimed that running off all the lawyers was necessary to “preserve the democratic transition.” Huh? But it proves that there must be something to this rule of law that we work so hard to enforce. And my guess is this type of trouble could never happen in Texas, because as I recall, the Texas Legislature just expanded prosecutors’ ability to pack heat.