November-December 2018

A week in the life of an SPU prosecutor

Jon English

Prosecutor with the Special Prosecution Unit (SPU)

So much of my life is dictated by tractors and tractor trailers. That is to say, so much of my work commute depends on how many tractors will be driving down the shoulder of the single-lane, farm-to-market roads I have to take through rural Texas to get to the tiny courthouses in the tiny counties in which I prosecute.
    On a good day, I may lose only 20 minutes to the 35-mph traffic jam caused by a John Deere combine. Behind the combine, there are inevitably another three 18-wheelers. And behind the 18-wheelers, there are another half-dozen pickup trucks looking for their chance to pass. But that chance won’t come for miles. And we won’t go a mile for another minute or so. No sir, we’re all in this together now, moseying along in the early morning fog, squinting at the new day’s sun as we ride eastbound, slowly sipping coffee and passing the time counting the gnarled, old barbed-wire fence posts that line the highway.
    If you’re a rural prosecutor, this is an everyday occurrence. Heck, if you’re a rural prosecutor, you may even be driving the combine as part of your official duties. Except here’s the catch: I don’t live in a rural county. I live in suburban Austin, so I’m no stranger to traffic jams—but the kind I encounter day to day are as part of my duties as a prosecutor who handles crimes that occur in prison.
    Welcome to life in the Special Prosecution Unit.

What is the SPU?
In a nutshell, we are the attorneys who prosecute crimes committed on property owned or operated by the Texas Department of Criminal Justice (TDCJ) or the Texas Juvenile Justice Department (TJJD), and all of the civil commitment cases involving sex offenders throughout the state.
    It’s equally important to distinguish who we are not. We are not special prosecutors employed by the TDCJ, and we are not affiliated with TDCJ. We are not special prosecutors employed by the Attorney General’s Office, and we are not employed by the state. And you never, ever pronounce our acronym as “spew.” It’s S-P-U. We can call ourselves “spew” if we want to, but other people can’t.
    We are Walker County employees, and we are funded by a grant from the governor’s office. For those of you who are now googling “Walker County,” that’s where Huntsville is. And as you probably already know, Huntsville is where TDCJ is headquartered. The SPU is also headquartered in Huntsville. And there are a good number of prison units in Huntsville itself—six to be exact. But the other 118 TDCJ facilities (and five juvenile units) are spread out all over the state, so the SPU has seven satellite offices to put those facilities within a realistic travelling distance for our 11 prosecutors, who are also spread out around the state.
    When you begin constructing a facility to house really dangerous individuals, you’re naturally going to put it someplace relatively rural and isolated (although sometimes the surrounding communities can become larger and more urban over time). Crimes that are committed in these facilities fall under the jurisdiction of the elected prosecutors in which the prisons are physically located.
    There is no specific statute that gives the SPU jurisdiction over prison crimes, so how did we get to be responsible for these cases? To make a long story short, in 1984, all the elected prosecutors from these prison-populated jurisdictions got together to figure out how to deal with the extra burdens these unique crimes from a unique population were putting on the resources of their small offices. The solution was to create the SPU: attorneys travelling to counties in which these prisons were located, acting as special prosecutors serving at the pleasure of each county’s elected DA, and working solely on these specific crimes. That plan was enacted, and those elected prosecutors now make up the board that oversees our operations. The local prosecutors in these counties are now freed up to focus on crimes that affect their “free world” community more directly.
    Now you know why my dockets require commutes that range between 90 minutes and five hours, and why so many of those miles are spent idling behind curiously large vehicles that are painted green. I’m one of our satellite prosecutors, based right outside of Austin. I cover 13 different units spread out across nine counties, from Falls County (just east of Waco), as far west as Medina County (just outside of San Antonio), on down to Hidalgo County (literally on the southern border with Mexico).
    As a criminal prosecutor with the SPU, I split time between adult criminal cases and juvenile criminal cases, as do several of our other criminal prosecutors. Our civil commitment attorneys don’t do criminal cases, and our criminal attorneys don’t do civil commitments—the practices are just too specialized—so this article is about my experiences with our criminal workload. But I would be remiss if I didn’t mention that our civil division, collectively, was named the Lone Star Prosecutors of the Year at TDCAA’s 2017 Annual conference for the incredible work they do every day, shielding the public from the worst-of-the-worst sex offenders who are no longer incarcerated.1

A week in the life
It’s almost impossible to capture anything that can be considered “typical” when it comes to being an SPU prosecutor because we each prosecute in so many different counties with so many different legal cultures. As a result, we each end up functioning more or less like our own little mini-prosecutor offices, linked by the same job description. With that caveat in mind, the following is my attempt to give you some insight into what my own experience as an SPU prosecutor is like in a typical week—even though there’s no such thing.

I’m supposed to try a case today in Bee County for an offender caught with a small amount of dope who just absolutely refused to plead to a two-year offer, even though he was looking at a 25-year minimum if convicted. The defendant was originally represented by State Counsel for Offenders (SCFO), but he fired that lawyer and moved on to what we’d call a “free-world” defense attorney.
    If the SPU is the Justice League, SCFO (which you can, and should, pronounce SKO-fo) is the Legion of Doom. Not because they are evil supervillains who are bent on world domination, but because they are the publicly compensated defense attorneys for evil supervillains who are bent on world domination. They are also TDCJ employees, a division that exists to make sure that offenders have competent legal representation in criminal cases. The main thing that makes working with SCFO easy is that its attorneys know the criminal justice system as well as we do. They have experience representing people who are currently incarcerated, they know who the OIG is (Office of the Inspector General—more on that in a bit) and how it operates, how to evaluate prison cases, etc.
    Things often hit a snag when a “free-world” attorney gets thrown into the mix. This happens when an inmate decides to fire SCFO or when a case involves a defendant who wasn’t incarcerated (i.e., a TDCJ staff member or someone who was visiting a prison). Also, SCFO does not represent any offenders who have been discharged or paroled since the offense occurred. One of the trickiest things to relate to “free world” defense attorneys is this State-friendly statute: Article 42.08(b) of the Code of Criminal Procedure, which says that any crime committed by an inmate will be stacked on top of that inmate’s current sentence. You read that right. All prison crimes are served consecutively to the sentence the inmate is currently serving.
    It’s also worth noting at this point that essentially every crime committed in prison is a felony. For example, possession of any amount of a controlled substance, even if it’s not a usable amount, is a third-degree felony.2 This includes visitors who come onto TDCJ property with drugs in their car that they weren’t planning on smuggling. Sometimes a visitor just didn’t take seriously the signs they pass saying their car is subject to search when they enter the TDCJ parking lot—without a warrant or probable cause for a search—until they’re looking at a third-degree felony.
    All of these nuances can make plea-bargain negotiations very complicated. Plea bargains are different for people who are already serving prison time. For most prosecutors, telling someone who was caught with a tiny amount of drugs that they’re looking at prison time is going to induce a histrionic fit from the defense, because prison time is the absolute worst-case scenario. However, when you’ve already been locked up at least once before, you’ve become accustomed to the system. You’ve become familiar with things like parole, good time, and mandatory release. And most importantly, all prison inmates have at least one enhancement paragraph in their indictments. Our prosecutors have a lot of leverage from the beginning of a case because of that reality.
    On the other hand, because so many offenders are already serving lengthy prison sentences, they often couldn’t care less about tacking another five to 10 years onto that sentence. And even more often, the thrill of being out of your cell for a week or two is a big incentive for them to reject pleas and push cases to trial. I’ve found offenders seem to actually enjoy trial because it’s just something different than their regular, everyday life. And I have to say, I kind of feel the same way sometimes.  
    When I wake up Monday morning, the morning of trial, I have an email from the defense attorney saying he looked at the discovery for the first time the night before (I am not making that up) and he realized he could not open an audio file on his computer that he now believes is probably essential to the case. He has filed a continuance. This is bad because one of our essential witnesses, a correctional officer, is going into basic training on Tuesday—he is literally shipping out the next day to California, and we can’t do anything to stop him or get him back. Knowing that the judge is going to grant the continuance despite the situation being 100 percent the defense attorney’s fault, we have to plead the case.

Now that I don’t have trial anymore, I can pack up and make the drive from Beeville to Hondo to present a chunk of cases in that county to the grand jury. I have 14 cases on my list (compared to almost 60 the prosecutors in Hondo have to handle themselves that day). They do their best to work me in, and we all complete our work just after 5 p.m. My cases run the gamut from drugs smuggled in by visitors to alleged sexual assaults.
    Those cases with a small amount of drugs or contraband are by far our most common. Contraband also includes cell phones and cell phone components, which, as Jimmy McGill advises, “can be hidden in any number of places.”3 I can count on one hand the number of cell-phone cases I’ve had in the units I prosecute, whereas colleagues of mine have prosecuted hundreds over the same time period. It just goes to show that every prison unit is its own universe. Crime in these units vary widely.
    Harassment of a Public Servant4 is another popular one. These come in two general types: spitting on a correctional officer and “chunking” on an officer. Chunking, if you must know, sometimes means throwing whole feces at a correctional officer, but most often it means putting urine, feces, or both in a water bottle, mixing it up, luring an officer to the meal slot or mesh-screen of your prison cell, and squirting it all over the officer.
    We also have Deadly Weapon in a Penal Institution.5 As you might imagine, many of the people who are currently in prison were accustomed to keeping themselves armed in the free world, and they darn sure are going to keep themselves armed in prison. As one offender told me (and on the stand during cross examination at that): “I always carry a shank on me.” Weapons in prison come in two general varieties: Pointy Things and Things You Can Put in a Sock and Swing Around. Pointy Things run the gamut from really crude instruments that show no pride in craftsmanship to shanks that look like they are auditions for the TV show Forged in Fire. Things You Can Put in a Sock and Swing Around typically are usually not very creative. Motors from the box fans in the units seem to be the most common.
    The only misdemeanors we prosecute are the ones committed by TDCJ staff. Those usually fall under the categories of Official Oppression.6 These are tough cases because correctional officers have to be given a lot of leeway to keep dangerous offenders under control. But there are still plenty of cases where the force used by staff is excessive and amounts to unjustifiable assault or something similar.
    Felony cases committed by staff are unfortunately just as common. In a prison system where correctional officers often begin their careers as young as 18 years old, without much in the way of salaries and without much life experience, they are easy prey for the sophisticated criminal syndicates that thrive in prison. That leads to a lot of Bribery and Possession cases as money and contraband are exchanged between staff and offenders.7
    But of course, we have more than our share of violent offenses as well. Assault on a Public Servant cases are extremely common, both with deadly weapons and with serious bodily injury. The most violent crimes, as you can imagine, are between offenders. And guess how many witnesses we usually have in a crowded cafeteria of 50 when there’s a gang hit that leaves someone moaning and gasping for his life in a pool of his own blood in the center of the room? That’s right: none. Just a few dozen statements saying, “I didn’t see anything.”
    And yes, there is sexual assault in prison, but it is incredibly hard to prosecute. Like free-world cases, there is often no other evidence besides the word of the victim. And like free-world cases, most often there has been a significant time lapse between the alleged assault and when it is reported. But unlike most free-world cases, victims in prison sexual assault cases actually have a strong incentive to fabricate the story, because reporting that you are a victim of a sexual assault almost certainly results in transfer to another prison.

From Hondo, I get to go back home for a day. This is a time to catch up on my intake process and get ready for my Thursday and Friday dockets, once again in Bee County.
    Although we are “special” when it comes to prosecuting and we have shiny badges that even say “special” on them, we still put our suit pants on one leg at a time just like all our fellow prosecutors. Accordingly, our intake process doesn’t look so different from everyone else’s throughout the state.
    But one major difference is that we get our cases from a separate law enforcement entity that you’ve probably never heard of: the Office of the Inspector General, or OIG. When I started here, I thought “OIG!” was something you shouted at a punk-rock concert. It turns out I was totally wrong about that on a number of levels. The OIG turns out to have nothing to do with punk-rock, nor does it have anything to do with Biggie Smalls. The OIG is the law enforcement group dedicated to investigating prison crimes. Unlike SPU, people at the OIG are TDCJ employees. They are TCOLE-certified law enforcement officers, almost exactly like your local police agencies in every way, and there’s usually at least one OIG investigator assigned to each prison unit in the state.
    Because here’s another important nugget to keep in mind when trying to understand prison investigations: TDCJ correctional officers and staff are not licensed law enforcement officers. On the one hand, TDCJ does actually perform its own administrative investigations into crimes committed in each unit, and its cooperation in sharing information from these investigations with OIG and the SPU is absolutely invaluable in the prosecution of our cases.
    On the other hand, TDCJ has a prison to run, and sometimes it has to conduct its investigations in a way that is not ideal for the prosecution of a case. For example, confessions given to TDCJ staff as a result of direct questioning aren’t admissible in court, even if the suspects have been Mirandized.8 This is because failure to answer a TDCJ staff member’s question is an administrative violation within TDCJ walls,9 so any direct question asked by TDCJ staff of an inmate results in a de facto involuntary answer.
    But OIG investigators aren’t prison staff. They are governed by the same rules and analysis that you’d follow in determining if a confession given to one of your officers is admissible. The result is that in most of our cases, there is an interview done by OIG for the criminal investigation and another interview done by TDCJ for the administrative investigation. All of these TDCJ investigations usually result in an administrative disciplinary hearing conducted inside TDCJ. It looks and feels a whole lot like a criminal trial, and if an inmate is found guilty, there are consequences like loss of good time, loss of privileges, etc.
    It’s not at all uncommon for us to discover well into the process of working up a case that TDCJ has documents it’s accumulated through its own investigation that we never received because the investigations are totally separate. Are those documents Brady? Are they subject to CCP Art. 39.14? Usually not. But that doesn’t mean there’s not a big scuffle over it once anyone on either side of the case realizes those documents exist.
    After OIG has completed its investigation, it sends the case to SPU headquarters in Huntsville, where our crack staff of legal assistants scans them in and enters them into a case management system. When I receive notification that a new case is waiting for me, I download the offense report, all of the digital evidence such as surveillance videos and photos, and whatever else is waiting for me in the folder. Then I review it and decide to accept or decline the case. If it’s accepted, I note that on a disposition sheet and email it back to Huntsville. Then I get started on indicting the case.
    After the indictment is prepared, the SPU physically travels to the county where the case is based and presents the indictment.10
    The process for placing SPU cases on dockets varies widely from county to county. In some counties, several of mine in fact, we make our own dockets and just turn them in to the district clerk. We then just essentially beg to be able to use the courtroom or any room at the courthouse whenever one is available to hear the cases.
    In some counties, our dockets are rolled into the regular docket heard by the regular judges. In others, they are special “prison dockets” heard by visiting and retired judges. In others, we have absolutely no say whatsoever in the process—we just show up when we’re told. It goes without saying, however, that throughout the state we rely heavily on the kindness of strangers. Or, they would be strangers if we weren’t constantly in their offices asking for favors. Even so, we rely entirely on their kindness, which we receive in spades.
    Once it’s time to show up to a docket, we head out in teams of a prosecutor and an investigator. We each have a laptop, printer, and county vehicle.
    At least two weeks in advance, the SPU investigator has to contact TDCJ and give it a list of offenders (that’s what TDCJ calls inmates) who need to be transported to a specific court on a specific day. For safety reasons, TDCJ has a policy of transporting no more than 10 inmates at a time, so our dockets never have more than 10 actively incarcerated individuals. But the dockets could have more than 10 cases because not everyone we prosecute is presently incarcerated (for instance, in cases involving prison visitors, prison staff, and offenders who were incarcerated when they committed the charged offense but have since been released).
    I know that to many prosecutors, a docket of anything less than 30 or 40 a day, five days a week sounds like a cakewalk. But there are 150,000 inmates in TDCJ, with another 875 incarcerated in TJJD facilities. We’ve got only 11 prosecutors to handle those cases from intake through the appellate process, so we do manage to stay pretty busy.

Another 6:00 a.m. drive to Bee County brings beautiful scenery, rolling hills of pasture, and long, long delays behind different kinds of automobiles with “truck,” “tractor,” or “trailer” somewhere in their names. Today, I’m pleading a case involving a young correctional officer who was caught smuggling in copious amounts of drugs. This is an unusual case because very few people take this kind of risk with this kind of volume. The officer is young and has cooperated fully, and accordingly, I’ve made a low offer, which the defense snatched up immediately.
    But there’s a hitch: We’re not in front of the normal prison-docket judge today. For reasons I can’t explain here, even though we have a dedicated judge to hear our prison-docket cases in Bee County, sometimes our docket ends up in front of one of two other judges. This judge on this day is not accepting my plea, finding it too lenient, but he does me the courtesy of not formally rejecting it and instead resets it to be heard in front of our regular judge.
    You know, it’s funny: I spend all this time in courtrooms populated by murderers and rapists, and they don’t make me the least bit uncomfortable. But put me in front of a judge I don’t know, and I fall to pieces. This is one of the real hazards associated with #SPULife. From day-to-day, from county to county, I can never be quite sure what the rules are when I show up. I never have home-court advantage like most prosecutors are supposed to enjoy. Flexibility and diplomacy are at a premium in this gig.
    In my beat, this is most especially true in Hidalgo County. Edinburg, its seat, is definitely not a rural place anymore, and with 11 district courts, Hidalgo is definitely not a rural county. It is what I would consider a “big” office of prosecutors, and each court has its own customs and procedures. My cases are randomly assigned to one of the 11 courts as they are indicted in Hidalgo, but never often enough in any one court to actually learn the individualized procedures. Every time a case is assigned to a new court, I feel like a 1L being called on to recite on the first day of class. I have to take a second here to thank the Hidalgo County prosecuting teams in each of these courts who have literally stood next to me and whispered what to say and do to keep me from accidentally being held in contempt when I’m down there. It’s a huge testament to the way prosecutors have each other’s backs. That’s something you really start to learn when you travel across Texas the way we do.

This happens to be Friday the 13th in a whole week that has felt like Friday the 13th. My last day in Beeville and my last docket of the week explode into chaos. I’ve agreed to reduce the felony charges against some correctional officers from felony Tampering with Physical Evidence to misdemeanor Tampering with a Government Record. But then I realize that’s not a lesser included. There isn’t a lesser included. That means all of the cases have to be refiled as misdemeanors.
    I don’t know how most offices go about prepping paperwork in a situation like this, but for my investigator and I, on the road with our printers on a little table in a little courthouse in a little town, we don’t have any staff to ask for help or any forms to rely on. We just have to generate brand-new paperwork ourselves for all of the defendants. It takes a few hours with everyone just kind of staring at us. It was one of those times you really wished you could tag-in a group of support staff stationed there in the courthouse to take care of the administrative tangles.
    But that’s #SPULife. Each prosecutor is essentially his or her own prosecutorial office. It’s got its ups and downs, but in the end, it has more ups. Because like all prosecutors, we’re making choices about what is going to happen to a case based on our own consciences and values guided by the facts. And sometimes, the reality of what prosecution really does to people hits us a little harder when we see them paraded in front of us in TDCJ whites and chains.
    To me, that’s when I’m most grateful to be a prosecutor, when I start to wonder about the justice system, when I wonder if correctional officers are fair to offenders, when I wonder if offenders can be rehabilitated, and when I wonder about unfair sentence lengths. Because as a prosecutor, I have both the power and the responsibility to take action over each one of those factors to make them become more the way I think they should be. And in that way, even though I’m not a prosecutor who helps to police the community I live in anymore, I’m an officer of the court who uses my influence to shape the criminal system as all prosecutors should: not to seek convictions, but to see that justice is done.
    My week ends at a friend’s house on Friday night, just relaxing after a lot of days on the road. He has a married couple visiting him from out of town, and the wife is a high-powered civil attorney in another state. She is on her phone well past 10 o’clock talking to unhappy clients with unreasonable demands. But they’re paying her well, so she listens. And when she hangs up, she’s clear with us that she’s not a fan of anything in her job besides the pay.
    And even though I’m pretty exhausted, as all of us in the prosecution game often are at the end of our weeks of dockets and victims and crime scenes and road trips, all I can think about is how lucky I am to do this job. Even if it means waiting in line behind tractor-induced traffic jams every now and again.


1  Here’s a brief example of the kind of work they do every day so the rest of us don’t have to: When deposing a sex offender one day, a colleague of mine asked about his first sexual experience. He asked her, “You mean people-sex?” Which meant exactly what you think it means. And that, in itself, is enough reason for you to say a quick “thank you” right now that the SPU Civil Division exists and that its folks are really, really good at their jobs.

2   Tex. Penal Code §38.11.

3  Gilligan, V. (Writer); Gould, P. (Writer); Cherkis, A. (Writer) & Morris, M. (Director) (2018). “Quite A Ride.” In Bernstein, M. (Executive Producer), Better Call Saul. Austin, Texas: AMC.

4   Tex. Penal Code §22.11.

5   Tex. Penal Code §46.10.

6   Tex. Penal Code §39.03.

7   Tex. Penal Code §§36.02 and 38.11, respectively.

8   Lykins v. State, 784 S.W.2d 32 (Tex. Crim. App. 1989).

9   TDCJ Disciplinary Rules and Procedures for Offenders, Level 3, Rule 32.0.

10  A handful of prosecutors from the counties we work with just read this sentence and said, “Hey! I’ve presented SPU cases when there was no way anyone from the SPU could make it!” Yes, that has absolutely happened and all of us appreciate it tremendously! You will be compensated for your efforts at a reception at the TDCAA event of your choosing.