November-December 2012

A call to action

William Lee Hon

Criminal District Attorney in Polk County

As I approach the end of my term as president of the Texas District and County Attorneys Association, I’d like to take this opportunity to thank the TDCAA staff, my friends on the board of directors and executive committee, and my staff at the Polk County Criminal District Attorney’s Office for all the help they’ve given me throughout this year. Until you’ve had an opportunity to serve in a leadership position in our association, it is impossible to understand and appreciate just how much time and work goes into the administration of a statewide organization that serves and assists such a broad, diverse, and talented membership. For those of you who had the opportunity to attend the annual at South Padre Island in September, you will know exactly what I’m talking about when I say how fortunate we are to belong to such a well-run organization. In saying that, I’m not patting myself on the back but rather extending all the accolades to the TDCAA staff, board, and speakers who really hit the ball out of the park this year.
    At the beginning of 2013, I’ll pass the baton off to my good friend David Escamilla (County Attorney in Travis County) who I know will do a great job as president and uphold the best traditions of our association. Good luck, David!
    We live in a challenging and interesting time as Texas prosecutors. I’ve noted previously in this column how I feel like our profession is frequently under attack. It’s no big secret that in many instances lately, prosecutors have been portrayed negatively in the media. With that said, to the extent that we are under attack, this is a debate that we cannot and must not shy away from. Although we cannot get around the fact that there have been some very disturbing and public mistakes in our criminal justice system, we have to be willing to publically defend those aspects of the criminal justice system that work, and we also have to be open-minded to legitimate and well-intentioned proposals for improvement and reform.
    When you get the feeling that the mainstream media is against you or is, at a minimum, lacking in objectivity, it is very easy to become confrontational and defensive. At the same time, there are individuals out there like Michael Morton who have a very compelling story to tell and are absolutely entitled to be heard in regard to how law enforcement and prosecutors might better do their jobs. While we might not agree on every proposal, we should always be striving for improvements to the system that might truly lessen the odds of wrongful convictions. When it comes to improving the system, we should be the progressives, not the reactionaries.
    It was in this progressive spirit that TDCAA released the report “Setting the Record Straight on Prosecutorial Misconduct” in September. While a significant portion of that report was dedicated to refuting the Innocence Project’s misleading claims regarding the frequency of true prosecutor misconduct, the report’s most important recommendations (in my opinion) concern what we can do as prosecutors to improve the way we do our jobs and increase the likelihood “that justice is done” in each and every case.
    The 83rd Texas Legislature will convene in Austin in January. Without a doubt, there will be any number of well-intentioned bills filed to increase “prosecutor accountability” or change the way we conduct our business. We cannot sit on the sidelines for this discussion. The TDCAA report by the Training Subcommittee on Emerging Issues can serve as a very important starting and reference point in these discussions for what prosecutors are doing to improve our own profession. We don’t have to wait on the legislative session to recognize there are things that we can be doing ourselves—and with the cooperation of law enforcement—to make progress.
    I can remember when I first became a prosecutor in 1996 how intimidated I was by the advent and proliferation of DNA testing and its use as forensic evidence. I did not come from a very strong science background and I suppose it was my own perceived inadequacy that made me fear that I could not effectively communicate to a jury the importance of this new and powerful evidence. Fortunately, prosecutors in our association did understand the value of DNA and were able to train the rest of us on how to present this type of evidence. In fact, it was prosecutors who took the initiative in convincing the courts and legislature of the reliability and importance of DNA evidence! Today, I am not the least bit hesitant to present DNA testimony in court, and judges and juries have grown to expect it in many cases.
    Improvements to eyewitness identification procedures recently went online in September of this year and are being implemented by law enforcement agencies across the state. Prosecutors were an important part of this discussion as well. I know everyone is just now beginning to understand the importance of these new standards but I would be willing to bet that in a matter of years—just like with DNA evidence—everyone will become quite comfortable and conversant with the new eyewitness identification protocols.
    If you stop and think about it, for decades now there has been a progression of legal and technological advancements in our profession. Sometimes prosecutors have been ahead of this curve, and other times we’ve been behind it playing catch-up. In either case, I understand that there is a natural resistance and hesitation when it comes to changing how we do things—I’m as guilty of this mentality as anyone. I’m a conservative. But we cannot be overly conservative and closed-minded when it comes to good ideas or recommendations for improving our profession and the criminal justice system.
    Moreover, I believe when we are the ones who are progressive and advocating new ideas, it enhances our credibility with the legislature, media, and public. As an elected criminal district attorney, I think my constituents want me to do everything I can to make the system more efficient and to improve the likelihood of obtaining the correct result in every case. I would add that these are not mutually exclusive concepts; we can make sure that tax dollars are spent wisely and reduce the potential for wrongful convictions at the same time. But we absolutely have to be involved in the discussion, make suggestions, and promote good ideas. We simply cannot become complacent.
    Toward this end, I hope that you will join with David Escamilla and the TDCAA board next year in advancing the proposals made by the training subcommittee. Come to Austin. Attend legislative committee hearings on matters that pertain to us. Meet with your legislators. Connect with the media. Provide public support for the good ideas. When there are bad ideas proposed—and there surely will be—give well-thought-out and well-reasoned opposition and, when possible, offer better options or alternatives. There are lots of good ideas and proposals in the training subcommittee’s report just waiting to be advanced. And rest assured, the board will implement many of those proposals through our association.
    But we cannot let the media and the defense bar define this narrative for us. We have to get past this natural fear of change and the apprehension that many of us feel when it comes to public and media relations. If we can’t, or won’t, do everything we can to educate the media and the public on who we are and what we’re doing to improve our own profession, then someone else will do it for us—and I promise you they will not have our best interests at heart.
    In closing, my year as TDCAA president has been challenging, fun, and eye-opening all at the same time. It has been a pleasure to serve. But I don’t intend to ride off into the sunset anytime soon. I enjoy being a prosecutor and I am proud to be a part of this profession. Although there are challenges on the horizon, I want to continue to inform others about all of the good things that prosecutors do and be a part of any dialogue regarding how we can do our jobs better. Rather than an “adios,” consider this column a full-throated request and prayer that you’ll get involved—a call to action, in other words. Be active. Be a part of our association. Serve on committees. Come to the legislature next spring. You can bet I’ll continue to do the same. See you there.