In the aftermath of George Floyd’s death

By Rob Kepple
TDCAA Executive Director in Austin

On the evening of George Floyd’s funeral in early June, more than 100 black Texas prosecutors met over Zoom to share what it means to be a dedicated public servant in a criminal justice system under fire. The meeting was organized by Tiana Sanford, TDCAA Training Committee Chair, Assistant Prosecutor Representative on the TDCAA Board, and a felony chief in the Montgomery County DA’s Office; Jerry Varney, ACDA in Dallas County; and Jarvis Parsons, Chair of the TDCAA Board and DA in Brazos County, in the wake of Mr. Floyd’s death at the hands of a police officer in Minneapolis. It was meant to give some of our members space to discuss the challenges of having a foot in two worlds, that of the black community and a prosecutor’s office.

            After the meeting, Tiana and I talked one-on-one. I wanted to know what I, as a servant of the profession, should be doing. I recognize that as a white man, I’ve not experienced what my black colleagues have. I feel like we have made progress in our profession here in Texas (more on that below), but I admit to being uncertain of exactly what to do or say at this critical and significant moment.

            In response, Tiana reminded me of something that happened six months ago. At the time, she was training for a 10K race. I am a long-distance runner, so I offered to go out with her and pace her on a long training run. I think she agreed reluctantly, knowing that I might push her some. She was right—I did push her, and she went along with me. She knew that she would be a little sore afterwards, but she also knew that it would make her stronger. She told me it was time to be pushed, time for her to use muscles she hadn’t used before. The push and the soreness would strengthen her for longer runs, for the race ahead of her.

            And now it’s my turn to be pushed. It is my turn to use muscles I haven’t used before, understanding that it might be uncomfortable and it might make me sore. But I am ready to recommit to this run. If nothing more, I have learned that it is OK to not always know what to say.  That leaves space to both listen and learn. I invite those in our profession to use muscles we might not have used before and as a result be stronger than ever.

TDCAA initiatives

We at TDCAA have done a lot of listening to what some of our members have to say about race and disparity in prosecution and among allied professionals, and I wanted to outline some initiatives TDCAA has undertaken over the past 12 years to respond to what we’ve heard—and to keep the conversation going.

            In 2008, some racist language was used in a DA’s office (under a former administration) and it went unchecked. That incident led to a meeting not unlike our recent Zoom conference, which in turn sparked an initiative at TDCAA to address race and cultural competence in our profession. We began the discussion at the Elected Prosecutor Conference when Jarvis Parsons, then an ADA in Brazos County, and Kebharu Smith, then an ADA in Harris County, addressed attendees with a presentation from the perspective of black prosecutors. They relayed: “When you say this, I hear this.” Additionally, TDCAA leadership created the Diversity, Recruitment, and Retention Committee to point TDCAA training—and prosecutor offices’ attention—toward community involvement and office diversity.

            Then the events in Ferguson, Missouri, came along. It was there, in August 2014, that Michael Brown Jr., an 18-year-old black man, was shot and killed by Darren Wilson, a white police officer. The killing ignited unrest and protests both peaceful and violent in that small city and elsewhere. (Both the St. Louis County grand jury and Department of Justice declined to indict Wilson, concluding that he had killed Brown in self-defense.) In the aftermath of the shooting, our attention turned to how police treat those in minority communities and what a prosecutor’s role should be in weeding out and prosecuting bad cops. At the end of 2015, TDCAA held a prosecutor summit to discuss best practices in the investigation and prosecution of police use-of- force cases, and we continue to train on the subject. You can view a summary of the summit’s conclusions below (attached as a Word document).

            In 2018, Sharen Wilson, CDA in Tarrant County, took the helm of the Diversity, Recruitment, and Retention Committee and launched a number of programs, including community outreach and law school recruitment and education. Bill Wirskye, First Assistant CDA in Collin County and then the chair of the TDCAA Training Committee, gathered a group to develop training for prosecutors on cognitive bias. These initiatives have been supported by the Texas District and County Attorneys Foundation and have led to several presentations at TDCAA’s Prosecutor Trial Skills Courses and Annual Conferences, among others.

            So, what’s next? As for me, I am starting with my terrific TDCAA staff. We will have the conversations we need to have and talk about how we can help our profession grow in diversity and awareness. I can tell you that the TDCAA Board President, Rockwall County CDA Kenda Culpepper, and the entire Board are all-in when it comes to appreciating where we as a profession are at this moment, and we are working to make prosecution stronger and to improve the criminal justice system. We must continue the conversation about race in the criminal justice system, wherever that takes us.

Student loan forgiveness update

We have had a lot of reports that the federal government has been slow-walking public service student loan forgiveness. As you may know, the program promised the discharge of a student loan if the participant worked for 10 years in a qualified government or non-profit job, and prosecution qualifies. But we have heard that the government is making it as hard as possible to actually discharge the loan.

            There may be hope yet. Take a look at a recent article written by a finance professional and student loan expert: www.nerdwallet.com/blog/loans/student-loans/public-service-loan-forgiveness. If you are careful and have your paperwork in order, you may just be able to prevail.

“Can I pick your brain?”         

That is invariably how my weekly calls from Jeri Yenne, CDA in Brazoria County, would begin. Jeri is set to retire at the end of September, and I want to take a moment to thank her and honor her for her work. Jeri told me that she considered herself the Columbo of prosecutors, and I totally get it. (For all you youngsters out there, Lieutenant Columbo is a fictional detective played by Peter Falk whose shrewdness is matched only by his, shall we say, inelegance. Wikipedia says his trademarks are a shambling manner, rumpled raincoat, and relentless approach to investigation.)

            Like Columbo, Jeri is always humble and thoughtful, and her apparent disorganization is an act. Jeri is constantly evaluating the right course of action, and she seemed to get there constantly in her career. Two examples of Jeri’s persistence and thoughtfulness:

            First, in a high-publicity case, she prosecuted a man for murder who had just witnessed his children being hit and killed by what turned out to be a drunk driver. The drunk driver was shot and killed in his wrecked car moments after the collision, but the father denied that he did it and the murder weapon was never found. However, an empty holster and ammunition matching that used in the killing were both at the father’s house. Jeri tried the case, knowing that it might not have been a popular decision, but vigilante justice could not be condoned. And Jeri was ever so respectful of the jury when they voted to acquit.

            The second case was a more recent one, that of the investigation into Texas House of Representatives Speaker Dennis Bonnen, who was accused of official misconduct after a secretly recorded conversation with a political activist was made public. There was arguably a case to be made that Speaker Bonnen committed a crime, but Jeri used her experience and discretion to decline prosecution. She knew she would fade some heat over any decision she made, but no one could credibly criticize her after her career as a selfless public servant.

            Jeri, I am going to miss your calls! You’ve been a rock for our profession. Thank you.

Mental health training

As we have been forced to cancel live conferences because of COVID-19, I was particularly disappointed that we could not host our regional mental health courses at the end of June. But the good news is that the training is very conducive to moving online, so we are busy planning the production of a number of online courses featuring our most excellent faculty. And thanks to the Court of Criminal Appeals for supporting our training efforts not only for mental health, but for a wide range of topics that we will be training on in the near future.