By W. Clay Abbott
TDCAA DWI Resource Prosecutor in Austin
The Misdemeanor Division Chief in the DA’s Office in Harris County, Bernadette Haby, wrote an excellent article (HERE) about a mural she painted on the wall in her office. Like almost everyone who reads it, I am inspired by both the mural and the story behind it. I am also very grateful to Judge Carolyn Dozier, a former prosecutor, for bringing it to my attention.
As I read the article, I asked myself, “When is the last time you said something nice to a misdemeanor prosecutor?” I had to think—which means the answer is, “It’s been too long.”
So, all you misdemeanor prosecutors out there, please take this column as an overdue “thank you” to y’all for what you do.
The difficulties and importance
A couple of times a year I have the privilege of presenting the opening talk at TDCAA’s Prosecutor Trial Skills Course, where I cover ethics and try to inspire my audience of mostly young, newly hired misdemeanor prosecutors. I riff on both the difficulty of their jobs and the importance of their jobs, and I would like to look at those things a bit more systematically in this column.
The job of the misdemeanor prosecutor is just absurdly hard. We send the least experienced attorneys into the heaviest dockets with the greatest number of cases, the most frenetic pace, and the fewest support personnel, and we expect them to largely figure it out on their own.
We send our greenest prosecutors against the most experienced, best funded, and most highly motivated defense attorneys. The money in criminal defense is not in the big bad murder defendant’s pockets but rather that of the “citizen accused”—the everyman defendants we find in county court. While the misdemeanor charge may not mean much to the five-time violent felon who has spent much of his life incarcerated, it means a lot to the first-time defendant. Those folks pay their defense attorneys well. Misdemeanor prosecutors must get dozens of cases ready on a docket; a defense attorney usually has one or two (and more time).
We also put our misdemeanor attorneys in front of judges who are understandably a bit fatigued with an ever-changing stream of new prosecutors. Our misdemeanor prosecutors are faced with opposing counsel the judge has known forever and sees in court often. Prosecutors usually have home court advantage, but less so in our justice of the peace (JP) and county courts.
Fortunately, misdemeanor cases are simple. (Yeah, right.) The misdemeanor driving while intoxicated (DWI) case is basically an intoxication manslaughter without the difficulties of causation or crash reconstruction, but also without the benefits of a crash or a victim to make jurors care. The domestic violence (DV) case is as tough as a DV homicide—except the victim is alive and often actively working for the other side. And let’s face it: Misdemeanor DV victims are exactly the same people as felony DV victims, parents of reluctant child victims, and survivors in the most difficult sexual assault cases.
Oh, and our misdemeanor brethren get three strikes instead of 10 and only 15 minutes for jury selection.
When was the last time you said something encouraging to a misdemeanor attorney? If you had to pause and think, it has been too long.
But it’s also a blast
Now personally my short time in the Misdemeanor Division constituted perhaps the most enjoyable days of my professional life. I had a blast. I was trying cases while my recent law school classmates in deep rug firms summarized depositions. I had unbelievable discretion for a lawyer with wet ink on his law license. I made lifelong friends (shout out to Trey Hill in Potter County and Mike West in Smith County). And most importantly I learned the skills that I relied on every day of the rest of my professional life. After all, if you can effectively present forensic toxicology from blood draws in a DWI case, doing the same with drugs, DNA, and tool marks are not a steep uphill climb. Just like in New York City, if you can make it in the misdemeanor division, you can make it anywhere.
Because the injuries, values, and priors are less in misdemeanor cases, the misdemeanor prosecutor gets more grace. It is OK to learn in the Misdemeanor Division. Losses are less visible and more expected. Defense lawyers and judges are there to train you with fire, and if you are lucky, you get a good misdemeanor chief. I certainly did in Rusty Thornton. He was an experienced, ex-county attorney from a small town. More importantly he was an outstanding teacher, coach, and mentor. He was stricken by muscular dystrophy and unfortunately passed from it far too soon. And although he was not tall in his wheelchair, he looms very large in the hall of great attorneys whom I owe. Offices should put great attorneys in trial positions because they will try hundreds of important cases in their careers. Offices should put even better prosecutors—those who can mentor and teach—in misdemeanor chief positions because they will train up the great prosecutors who will try thousands of important cases. If you want to do justice for a day, go try a case. If you want to do justice for decades, mentor a misdemeanor prosecutor.
Now the grace that is extended because of lesser injuries, values, and priors does not equate to lesser importance in the Misdemeanor Division. The majority of the people of the State of Texas who involuntarily enter the criminal justice system as victims find themselves in the hallways of county and JP courts. The large majority of those who are first-time offenders also find themselves in the hallways of county and JP courts. In larger counties, more jurors will serve in county and JP courts. Volume creates impact.
Impacting the public perception of prosecutors and criminal justice is not the only important aspect of misdemeanor prosecution. Rehabilitation, general deterrence, and specific deterrence lead far ahead of punishment and retribution as reasons we prosecute and punish misdemeanor offenses. Our best chance at stemming future misdemeanor and felony conduct is in prosecuting misdemeanors. But to really effect change, prosecuting misdemeanors must be done intelligently, compassionately, and with attention to each case—which is not so easy to do when you have so many. A failure to rehabilitate in misdemeanors means we will probably have to rehabilitate the same offender as a felon. A greater volume and fewer resources make this difficult, but no one can argue that having fewer felony offenses is anything but good.
DWI and DV
We prosecute misdemeanors to keep first-time offenders from repeating really dangerous behavior. Nowhere is this truer than in our two most common misdemeanor offenses, DWI and DV assault. We know that offenders commit these crimes over and over. We also know that repeated impaired driving and repeated domestic assault will inevitably lead to preventable death. It is the hope of every prosecutor who has tried a capital murder of a peace officer that their efforts will save future officers’ lives. But it is a documentable fact that where we have visible and continuous enforcement and prosecution of impaired driving, we have decreased impaired driving deaths. Misdemeanor prosecutions save lives. That is the good news.
The bad news is that those folks whose lives are spared never show up at our offices with thank-you cards or cookies. In DV cases, sometimes the person whose life you save shouts ugly things at you as you head back to your office. Around 60 percent of impaired driving fatalities are the impaired drivers themselves; those who survive and end up in the criminal justice system are rarely grateful as they leave court.
It is also the Misdemeanor Division that gives their felony brethren the priors that follow those DWI and DV offenders who will not be rehabilitated or deterred. This is also a worthy endeavor and accomplishment that any longtime felony prosecutor has celebrated, but for which very few misdemeanor prosectors are praised, simply because we don’t know which offenders will go on and take lives.[1]
How long has it been since you told a misdemeanor prosecutor you appreciated their efforts? If you must think about it, it has been too long.
It takes a village
I have a longtime friend who has retired as the director at the National Traffic Law Center, Joanne Thomka. She vehemently scolded me every time I referred to a new prosecutor as a “baby.” She is probably right, though I often countered with the fact that three of the greatest days of my life are when I met my babies: my son and two grandkids. Sadly, many prosecutors’ offices are like the worst Baby Boomer parents, who told their babies something like, “Your bottles are in the fridge and your diapers are on the changing table. Here is a key to the door—see you at high school graduation.” If it takes a village to raise a child, it certainly takes an entire office to raise a great prosecutor. I had a great office village.
My exhortation is to be to the new hires in your office what my numerous mentors were to me: attentive, patient, and most importantly, present. If we want new prosecutors to learn, to improve, to succeed, and to stay, it is going to take the whole office.
When was the last time you, as an experienced felony prosecutor, walked by the misdemeanor attorneys’ office doors on a slow afternoon and called out, “Who has a trial coming up they want a fresh set of eyes on?” If you can’t remember, it has certainly been too long.
If you are reading this as a misdemeanor prosecutor, thank you! I know these days are a bit unnerving and exhausting, but what you do is important. All of us know it—I hope you do too.
[1] For an example of a misdemeanor DV case that ended in capital murder, see an article from earlier this year: www.tdcaa.com/journal/everything-we-do-matters.