Criminal justice and the homelessness crisis

By Rob Kepple
TDCAA Executive Director in Austin

I was shocked to read in the New York Times that the homeless rate in Los Angeles skyrocketed last year. (You can read about it at www.nytimes.com/2019/06/05/us/los-angeles-homeless-population.html.) And many of you have seen the recent news exposé titled “Seattle is Dying,” which shows in graphic detail the impact of the homeless crisis in that city. (It’s HERE.) The issue of homelessness has hit home here in Austin, where the city council recently repealed an ordinance that opens the door to camping in public areas. Homeless people—long a fixture in our state capital—are now camping openly on sidewalks and in parks.

            My reaction to the new public angst over this growing problem is: “Welcome to our world. Now what do you want to do about it?” The criminal justice system has been the default solution for those with mental illness and drug addiction for a very long time, and I know how frustrated prosecutors and other criminal justice professionals have been over the lack of resources and solutions for these two big societal problems. It has been gratifying to see states work diligently to divert people with mental illness and drug problems from our prisons and jails. That has certainly happened in California, but with a continued lack of treatment and support options, I wonder out loud if it has fueled a modern re-creation of the infamous Skid Row in Los Angeles.

            But look at it this way: The problem of chronic mental illness and addiction is now camping on the streets for everyone to see, not hidden away in our jails. It isn’t just “our” problem anymore, and that could fuel the drive for resources and solutions that we haven’t seen before. Let’s hope.

Legislative Update hot topics
Usually when we start our Legislative Update tour, we never know what topics will generate the most interest. This year was an exception because we all know that HB 1325, the bill that legalized hemp, dominated the trainings. It has proven to be (another) great lesson in unintended consequences linked to the passage of a major piece of legislation. From the inability to chemically distinguish between hemp and marijuana, to the CBD oil “grandfather clause,” to the unexpected influx of smokable hemp in pretty packages from Oregon, this new law has been a challenge. Perhaps the greatest lesson for legislators and the lawyers who draft legislation, the Legislative Council, is to insist that bills of this scope do not have immediate effective dates.

            But there are a few bright spots tucked in there too. Congratulations to Chambers County DA Cheryl Lieck and ADA Eric Carcerano, who persevered though many legislative sessions to secure the passage of HB 1399, which greatly expands the collection of DNA samples from defendants upon initial arrest (see §411.1471 of the Tex. Gov’t Code). That is the kind of bill that will save lives in the future. In addition, congratulations to Comal County CDA Jennifer Tharp, who spent three sessions and countless hours to finally gain passage of HB 3582, deferred adjudication for DWI offenders. This is a huge change in the law, and we hope it will provide incentives for offenders to get the treatment they need so they do not reoffend.

            Speaking of DWI, another very popular part of the presentation was the unveiling of the new “driving while stoned” testing procedures invented by the Royal Canadian Mounted Police. It’s very impressive, and we can only hope that the National Highway Traffic Safety Association adopts the test in the U.S. soon. You can see a demonstration here: www.youtube.com/watch?v=2PLC_cBJwk4.

Thanks to the Legislative Update Team
I need to take a moment to thank some remarkable people who make up our Legislative Update training team. First and foremost, I hope everyone recognizes the absolutely Herculean effort that TDCAA Governmental Affairs Director Shannon Edmonds puts into the Legislative Updates. First, he’s part of the 140-day legislative session—think of it like a capital murder trial, and Shannon is the lead prosecutor. But the day the trial ends, Shannon then becomes the appellate and writ lawyer, and he has only five weeks to write the brief (which in our case is the 90-page Legislative Update book) and prepare for oral argument (the three-hour presentation itself). Burning the midnight oil with him once the session is over is our Communications Director Sarah Halverson, who edits and produces the book, then becomes our own production department to format videos for the presentation.

            As all that is going on, Senior Staff Counsel Diane Beckham produces the best criminal law code books in the state—in the mere six weeks after the session ends—and turns them over to our Sales Manager Jordan Kazmann, who has them delivered to your office well before most laws take effect on September 1. Finally, our training and registration team of Andie Peters, Dayatra Rogers, and LaToya Scott coordinate the logistics of training nearly 3,000 people in 22 locations over five weeks—and they make it look easy!  

            Finally, I want to thank all those who get on the road with Shannon to present the training: Tarrant County ACDA Vincent Giardino, Montgomery County ADA Tiana Sanford, TDCAA Training Director Brian Klas, and TDCAA DWI Resource Prosecutor W. Clay Abbott. What a dedicated team—thank you!

Congratulations to the No. 1 Gang Prosecutor!
Congratulations to Harris County ADA Caroline Dozier, who was recently named the 2019 Texas Gang Investigators Association (TGIA) Prosecutor of the Year. (That’s Caroline in the photo below with TGIA President Martin “Ringo” DeLeon.) The TGIA is a not-for-profit volunteer organization made up of law enforcement, corrections, probation, parole, and prosecution professionals who focus on gang-related crimes such as human-trafficking, drugs, and violence. The TGIA was formed to promote a closer working relationship among gang investigators across Texas and the nation, and it takes time to recognize a prosecutor each year for her outstanding contributions in the battle against gangs and organized crime. Congratulations, Caroline, on this honor!

Proposed changes to TDRPC 3.06
In 2017, the legislature created the State Bar Committee on Rules and Referenda. Its objective was to create a vehicle for attorneys and others to recommend, vet, and eventually seek a referendum on changes to the disciplinary rules. This nine-member panel meets on a regular basis. Attorneys and members of the public can recommend changes to the rules, go to some of the meetings, and make comments on proposals. (The website is www.texasbar.com/AM/Template.cfm?Section=cdrr&Template=/cdrr/home.cfm.)

            We’ve been advised that at its September 3 meeting, the committee was to begin discussions on a proposal to amend the comments to Rule 3.06(d) relating to the propriety of lawyers discussing with jurors after the trial evidence that was excluded. The section in question states: “(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.”

            The question is whether it is ever appropriate to talk to jurors about evidence that was not admitted, such as a defendant’s criminal record when he didn’t take the stand or evidence of a victim’s past that was excluded as irrelevant. If you are interested in this issue, keep an eye on the committee’s work as it moves forward.