A call to action

Markus Kypreos

Former TDCAA Research Attorney, now a Litigator at Pennington Hill, LLP in Fort Worth

Prosecutors’ silence on current issues is deafening, and the public needs to hear your strong voices.

Despite the prevailing sentiment in popular media coverage, the prosecutor’s job has never been more important and more necessary than right now. And yet in our current political climate, the silence from law enforcement is deafening. Police are now depicted as offenders, prosecutors are portrayed as gatekeepers for cops’ corrupt behavior, and some criminals—now calling themselves victims—scream injustice for being unfair targets of overzealous officers. That is the ubiquitous narrative we see played out in the news media every week. And while it’s patently incorrect, the question becomes, how do we change it?
    And why do I say “we”? Who am I? I once worked at TDCAA as the research attorney, and now I practice civil litigation in Fort Worth. In response to an article I wrote on gambling in Texas way back in 2004 when I was on staff at TDCAA, I received an onslaught of media attention and more than my fair share of hate mail. (“Markus Kypreos is a clown,” stated one. It’s still the best email I received in response to that article I wrote so long ago.)
    Three more gambling articles—and even more criticism—followed, and 12 years later, I still get calls from reporters asking questions about poker, eight-liners, and more recently, Draft Kings and Fan Duel, those online fantasy football games. Somehow, I have become the expert on Texas gambling law—yet I left TDCAA in 2006 and have been practicing civil litigation ever since. I say that not to brag, but as a respectful admonishment to all of you who have dedicated your lives to law enforcement. How am I still the prosecution’s voice for illegal gambling? I respect all of you and your devotion to prosecuting criminals, but it should be your voice and your opinions offered to the public. The media are desperate for law enforcement’s rebuttal of criminals’ claims and all too often, your silence is used against you in the court of public opinion.
    But the good news is that you already have much of what you need to counter this tide. You just need to channel it.

Prosecutors and the media
You are already an expert in the field of criminal law. Many of you have specialized prosecutors throughout your office, and you try incredibly challenging cases involving complex criminal procedures. Part of my job at TDCAA was to connect prosecutors with experts in other offices. TDCAA still does that today, but it is not the voice of Texas prosecutors and does not speak for you. That’s because it’s nearly impossible to garner consensus among 335 elected officials. It is (and always has been) up to the individual prosecutor offices to speak for themselves, and judging by the scarcity of prosecutors seen on TV, both nationally and locally, the number of prosecutors willing to speak out on controversial topics is few and far between.
    And I get it. Besides the potential unwanted criticism and scrutiny, oftentimes you don’t have time to invest and thoroughly review other cases and issues. But for the hundreds of excuses we can offer to decline an interview or stay silent, there are thousands of criminals, criminal defense attorneys, and reporters (amongst other groups) pummeling your profession, your purpose, and most importantly, your integrity.     
    It’s certainly understandable not to comment on your cases or even on cases in which you’re not involved in your own office. Most of us have interacted with reporters who have misconstrued or selectively quoted our words to fit their stories. It’s aggravating and (understandably) causes many of us to make internal promises never to speak with the media again. You’re also busy, overwhelmed with your own cases and balancing your personal life, so adding a side job as a commentator is not on the top of your to-do list.     
    The National District Attorneys Association (NDAA) has promulgated “standards for prosecutors to help guide them in their day-to-day performance.” And some of these standards encourage prosecutors to participate in local, state, and national affairs for the improvement of the criminal justice system. Why? Because “an interested and informed citizenry can be a valuable partner in law enforcement,” NDAA says. Today’s community is no doubt interested. But are they informed? And if so, is the information accurate?
    Because the office of the prosecutor is local, the responsibilities placed on each office are often specialized. Perhaps your office prosecutes a number of methamphetamine makers, while the neighboring county has more eight-liner cases than it can handle. As a result, your office has specialized knowledge and expertise in prosecuting drug cases. But imagine if every prosecutor’s office were designed with that level of specificity necessary to prosecute every crime. The NDAA points out that such a scenario is both a prohibitive financial burden and an enormous duplication of effort on a county-by-county basis. Thus, the NDAA recommends a statewide association of prosecuting attorneys to alleviate the problem, but speaking out on behalf of the criminal justice system as a whole is a separate task. And there needs to be a bridge between the two:  Not only can you help a neighboring prosecutor handling her first eight-liner case, but you can also speak to the media when they have questions about why poker tournaments can be illegal. It’s your expertise and voice that your office (and law enforcement in general) needs.

An example
Let me tell you a story. In 2014, I listened to the hit podcast Serial, which re-examined the case of Adnan Syed, an 18-year-old high school senior in Baltimore, Maryland, who was convicted of murdering his girlfriend in 1998. The podcast followed reporter Sarah Koenig as she investigated the murder case and questioned whether Syed might be innocent of the murder. The story was so popular that other media outlets began reporting on it.
    Shannon Edmonds, the director of governmental relations at TDCAA, fielded a call from an online magazine looking for a prosecutorial point of view to rebut some of the innocence claims from Serial. I was the only person he could find who was willing to be quoted and interviewed on the record.
    Let that sink in for a moment.
    Reporters are so desperate for prosecutorial voices that they have to reach out to the Texas prosecutors association to find a voice about a Maryland case that happened 16 years prior. It’s one thing for the Baltimore City State’s Attorney’s Office not to comment, as there was a pending appeal at the time, but the media had to contact TDCAA to find a law enforcement viewpoint.
    I listened to the podcast because after working at TDCAA, I still follow interesting criminal cases, and Serial was extremely popular (over 80 million downloads) and unique in its approach to questioning a 16-year-old murder case. With that popularity came a loud clamor from the public that an innocent man had been convicted—solely based on a 12-episode podcast, which in my opinion was wholly deficient in presenting the prosecution’s case. The podcast led to its own subject forum on Reddit.com, wherein the general public dissected every fact of the case. Again, having worked at TDCAA, I attempted to disprove many of the innocence claims asserted in the podcast on Reddit.
    I then agreed to the interview Shannon referred to me, which led to a podcast interview, and from there, I was contacted by a producer from the Discovery Channel, who asked to fly me to New York to discuss the case and defend the prosecution and Mr. Syed’s conviction for an upcoming TV special. As I sat for three hours on camera, arguing on behalf of Maryland prosecutors and against Mr. Syed’s innocence, all I could think of was how you seasoned prosecutors—who refute meritless defense theories and arguments on a daily basis—should be sitting in my chair. Not because I was ineffective, but because your voice automatically conveys credibility. It comes with the job. You are a prosecutor and as such, you are an expert on criminal law. Yet simply being an expert on criminal procedure and trying cases is no longer enough.

Become proactive
This is my plea, my call to arms, my solicitation to all of you. I know a lot of you are frustrated with the recent portrayal of prosecutors in the media. I have no problem talking to the media and defending prosecutors, and I’ve learned some tough media lessons over the years, especially about television (such as don’t eat a high-sodium meal right before you go on camera). But it needs to be you out there talking, not me, and it needs to be now.
    So what can you do?   
    Let your voice be heard. Write and publish articles on topics on which you have specialized knowledge. TDCAA is always looking for interesting articles in this journal, The Texas Prosecutor, for example. So is your local newspaper or TV station. Become the go-to prosecutor on a certain topic, and be willing to talk to the media about similar cases both statewide and nationally. Form a relationship with the local newspaper reporter for the courthouse beat or the TV news reporter in your community who covers criminal cases.   
    In my current practice, for example, I have formed relationships with local reporters who know me personally. If they print something inaccurate, I can immediately ask them for a retraction or correction, especially with online content that, in today’s world, is immediate and ever-changing. Conversely, these reporters rely on me for information. Even if it’s off the record, cooperation, especially over time, will foster a mutually beneficial relationship for everyone.     
    Most importantly, speak and be vocal as often as you can. Perhaps some of you who are elected district and county attorneys have instituted a gag order on your employees communicating with the media. If so, I implore you to reconsider that ban. If you want to limit employees from talking to the media about their cases due to ethical prohibitions, that’s understandable, but Texas prosecutors need advocates of their own. They need public support from one another, and limiting individuals in your office from interacting with the media only amplifies the voices of criticism against prosecutors as a whole.
    It’s also worth noting that Maryland prosecutors took an unorthodox step to support their Baltimore brethren. As a result of the Serial case, just this October, 21 elected district attorneys from various Maryland counties collaborated and filed an amicus curiae brief in support of the State of Maryland and its case against Mr. Syed “as independently elected lead prosecutors for jurisdictions who are not parties to this case but have a stake in seeing that justice is done in all cases, no matter the level of sensationalism or public interest.” An extraordinary case can sometimes lead to extraordinary measures, and we should praise Maryland prosecutors for applying an often forgotten tool in support of their fellow prosecutors.     

There are times when reticence is wise and silence is golden. Now is not that time. I urge all of you to make an extra effort and channel the commitment you all share in prosecuting criminals and protecting our communities by reminding the public how and why you serve them. All of us are aware of your dedication, passion, intensity, and zeal in representing the State of Texas inside the courtroom, but the public needs to see those same traits on display outside of the courthouse and in the media.
    Martin Luther King, Jr. once said, “Our lives begin to end the day we become silent about things that matter.” We all know how much your jobs matter. It’s time to speak up and remind everyone else.