Thursday, July 2, 2020

TDCAA World Headquarters™ will be open tomorrow, but some courthouses may be closed for the holiday weekend, so we’ll send this week’s update a day early. After all, no news ever gets dumped on a Friday afternoon right before a holiday weekend, does it? #HappyIndependenceDay

Coronavirus and courts

Fittingly, we will start off our COVID-19 Update No. 18 with a summary of the Texas Supreme Court’s Emergency Order No. 18 issued earlier this week.

In the wake of the recent surge in coronavirus cases, the state judiciary’s latest emergency order largely tracks its previous order, maintaining the status quo and pushing back various dates for “re-opening the courts.” (We broke down the prior Emergency Order No. 17 at the end of May in this update if you need a refresher.) This means the start date for jury selections or jury trials is now September 1 instead of August 1, although jury trials conducted with the assistance of the Office of Court Administration (OCA) may go forward before September 1.

The major difference between this new order and its predecessor is the omission of language that previously said all OCA-involved jury trials must “require the consent of all parties to the case ….” That consent language is not found in Order No. 18. Note further that paragraphs 3(c) and (d) of this latest emergency order authorize a court to allow or require jurors or witnesses to participate remotely “without a participant’s consent” and “subject only to constitutional limitations.” As a result, the judiciary has officially taken the position that judges can force parties into a virtual or in-person jury trial despite coronavirus-related objections.

On the general issue of jury trials in the time of coronavirus, we noted a few weeks ago that practitioners on both sides of the criminal bar appeared reticent to experiment with virtual jury trials. The main difference between the two sides of the criminal bar at that time appeared to be that prosecutors are more comfortable with some witnesses appearing remotely than their criminal defense lawyer peers who oppose it on confrontation grounds. (At least on the surface; separating that claim from the standard my-client-doesn’t-want-to-be-convicted grounds or delay-always-benefits-the-defense grounds is impossible in practice.)

How the judicial system will ultimately balance its participants’ pandemic health concerns with the need to move its dockets remains unclear at this time. Interestingly, the new State Bar president formed a task force on restarting criminal jury trials last month, but that blue-ribbon group of prosecutors, defense lawyers, and judges was not consulted before the chief justice issued this latest emergency order empowering judges to unilaterally make these decisions. It is difficult for a three-legged stool to serve its intended function when trying to balance on only one leg, so let’s hope that approach will change going forward.

Second TDCAA webinar now available online

The second in our new series of multiple presenter courses, Caseload Management addresses what has been perhaps the most requested training topic from our membership. Dockets are getting larger, deadlines loom, and discovery is a constant complication, putting prosecutors at constant risk of drowning in a sea of cases. In response, our newest online training module features experienced prosecutors from all over the state discussing the methods they employ to stay afloat. Whether you are newer to the profession or a bit saltier, this course is intended to deliver new tools, plus new ways to use the tools we already possess. The fee for this course is $25, and participants will receive 1.75 hours of MCLE credit upon completion. For more details or to access the webinar, click HERE.

And don’t forget that our initial multiple presenter online course, General Advocacy, is also still available! This training features prosecutors from across Texas sharing tips, processes, and other advice on how become a better courtroom advocate. The course fee is $25, and attorneys who complete the course will receive one hour of CLE credit. Click HERE for more details or to access the webinar. Both courses are offered through our Litmos portal used for mandatory Brady training, so most of you should be familiar with the drill.

Mental health training

The Judicial Commission on Mental Health (JCMH) has announced that its Third Annual Judicial Summit on Mental Health will be a virtual event to be held November 9–10, 2020. Summit participants will still receive tools to help them navigate the complex mental health laws, including the first edition of the Texas Juvenile Mental Health and Intellectual and Developmental Disabilities Law Bench Book. There is no fee to participate, but pre-registration is required. Click HERE to visit the event website and register for the virtual summit.

TDCAA coronavirus resources

Remember, all of our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at The most recent addition to this library of forms is a sample office policy on testing employees for COVID-19 and instituting guidelines for returning to work.

If you or someone in your office has something you would like to share with your peers, consider emailing it to Shannon for inclusion.

Quotes of the Week

“Why does he continue unilaterally acting like a king? He’s sentencing bar owners to bankruptcy.”
            —Jared Woodfill, a Houston attorney (and former chairman of the Harris County Republican Party) who has filed yet another legal challenge to Gov. Abbott’s exercises of his emergency powers, this time on behalf of more than two dozen bar owners throughout the state.

“Every day someone is sitting in the jail, it’s $69 that could be going to fix my constituents’ roads. I think this will maybe be a good history lesson. If we did it for the COVID, why can’t we just do it, period?”
            —Terry Phillips, Smith County commissioner, on the lessons some are taking from jail population reductions during “the COVID.”

“Everything is getting tense and the summer is just starting. It is a free-fall. You ain’t seen nothing yet. It’s going to get buck-wild.”
            —Atlanta resident Elbert Bartell, predicting further civilian violence in that city in the wake of police withdrawals following the officer-involved shooting of Rayshard Books last month.

“In short, the cartels are taking a beating. … This will change the landscape of these cartels. The only ones that may survive are the supersized cartels. They’ll completely obliterate the smaller ones that don’t have the infrastructure or revenue streams to survive the supply chain disruption we’re seeing now.”
            —Michael S. Vigil, former chief of international operations for the DEA, in a story about the coronavirus pandemic’s impact on narcotics trafficking.

“Everyone knows it’s the imminence of trial that helps resolve cases. This is standard procedure we’re all used to. Earlier in the pandemic, there was concern that no one be compelled to come to the courthouse at risk to health. But [OCA’s] guidelines and review process for proposed trials have minimized that risk. There is less reason for the special consent requirement. Lawyers and parties can always raise health concerns, and judges will weigh them like any other request for postponement.”
            —Chief Justice Nathan Hecht, commenting on the Texas Supreme Court’s latest emergency order that allows judges to put parties to an in-person or virtual jury trial during the pandemic without their consent.

“Do district attorneys’ offices sometimes make mistakes? Is there bias in the system? Absolutely. But the system would not be better without black prosecutors. For black people to achieve equal justice, we need to be a part of every aspect of the criminal justice system that directly affects us: from police on the streets, to defense attorneys, to prosecutors, and judges. That is why we matter.”
            —Excerpt from an op-ed entitled “Black Prosecutors Play a Vital Role in Our Justice System,” by Santa Clara County (CA) black prosecutors, responding to an op-ed from a local public defender blaming prosecutors for police brutality.

Until our next update, keep check our website and Twitter feed for the latest COVID-19 news.