September-October 2010

A West Texas prosecutor and the rule of law

Rob Kepple

TDCAA Executive Director in Austin

On October 13, 2010, the United States Supreme Court will hear oral arguments in a case captioned Skinner v. Switzer. This is a civil rights lawsuit brought by death row inmate Hank Skinner against Lynn Switzer, the district attorney in Gray, Hemphill, Lipscomb, Roberts, and Wheeler Counties. The facts are simple: Skinner was convicted of slaughtering a family—with lots of DNA evidence to back it up. The defense team, as a matter of strategy, declined to seek testing of additional items at the crime scene.

    And now? Yeah, you guessed it. The defense wants the additional items tested, because the tests would show that “another guy” did it. Oh, and this should surprise you, that other guy is dead. The defense pursued its request for additional DNA testing through post-conviction writs of habeas corpus. After hearings at the trial and appellate level, testing was denied.

    Not to be deterred, the defense then filed a federal civil rights action against the DA, claiming that her failure to agree to additional testing amounted to a denial of Skinner’s civil rights. Unique and creative, to be sure. And interesting enough to get the attention of the United States Supreme Court.

   At this point, even many prosecutors reading this may be saying, “Hey, just test the stuff and let’s get this case moving along.” Certainly that’s the easy thing to do and would move the case to execution more quickly. But is that the most satisfactory path here? Lynn, as the attorney for the State of Texas, has chosen to stand up for the rule of law. The defendant made his choice on testing with his eyes wide open many years ago, and if you look at the record it was a wise choice. He has had every opportunity to litigate further testing through the habeas process and has failed to convince any court at any level that his position has merit. Now some creative lawyering brings a novel end-around attack on the conviction, which really is a challenge to the existing structure of capital appellate review.

    Y’all know how lonely it can feel sometimes as you fight these battles that draw national attention. I am proud to serve prosecutors who appreciate their responsibility to the State to stand up for the rule of law, even if it means slogging through the anti-death penalty hate mail all the way to the Supreme Court. Any way this thing comes out, we are all better off when prosecutors stand on principle.

    If you would like to keep up on the case, take a look at the American Bar Association’s website at www

Watch out for low-flying liability

The day before Skinner is argued at the Supreme Court, on October 12, the High Nine will take up a case on prosecutor liability and immunity styled Connick v. Thompson. A case in New Orleans Parrish was reversed for a Brady violation. Though there is no history of such misconduct on the prosecutors’ part, the DA was successfully sued in federal court in a §1983 action for failure to properly train his prosecutors. This attack on prosecutorial immunity, if it stands, has serious ramifications for our profession. We must ask, just as in the Skinner case discussed above, whether all existing procedures and laws relating to our work are tossed out the window if the case is packaged as a §1983 federal civil rights lawsuit.

    Once again, you can follow the action at preview/briefs/oct2010.shtml #09571.

Strangulation law one year later

It seems not everyone got the memo on the implementation of new laws.

During the 81st Legislative Session in 2009, the legislature passed a fairly uncommon statute relating to suffocation or strangulation in domestic violence cases. Section 22.01 of the Penal Code was amended to carve out a manner and means of committing a simple assault—that manner and means being the impeding of normal breathing or circulation of blood by applying pressure around the throat or neck—and jacking up the penalty from a Class A misdemeanor to a third-degree felony.

    In July, 10 months after the new law took effect, an article appeared in a major newspaper citing domestic violence advocates critical of prosecutors for not prosecuting enough strangulation/suffocation cases, “despite a new law designed to automatically put the attackers in prison.”

    This is something we’ve seen before. In all different areas of the law, folks have high expectations of new Penal Code provisions. And the new laws can certainly make a huge difference—look at how the Internet solicitation provisions created a whole new avenue for prosecution of child sex offenders. But for some laws to have an impact, a few things need to happen once the legislature writes a bill and the governor signs it. For one, cops have to buy the books and find out about the change in the law. And crimes need to start occurring (unfortunately). Cases need to be filed. The trial courts must consider any issues the new law raises. Appeals of those cases must run their course.

    With regard to the new suffocation/strangulation statute, it wouldn’t be surprising that, 10 months in, police and prosecutors are being cautious. As Shannon Edmonds, TDCAA Staff Counsel and Governmental Relations Director, warned in our summer 2009 legislative update trainings, some significant issues must be worked out in the courts. Because we are carving out an existing manner and means of committing an assault for special punishment treatment, how do we allege it? As a manner and means or as a separate enhancement paragraph? This is new territory for a model penal code state that in the past has not pigeon-holed specific manner and means for special treatment. And because the conduct could conceivably range from simple assault to a second-degree felony, how do we charge the crime? How do we handle a request for a lesser-included offense? And if we have a case severe enough to merit a charge of second-degree aggravated assault, how do we convince the jury not to go for the lesser-included of the new third-degree felony (which predictably has now happened)?

    There is no doubt that Texas prosecutors and law enforcement will figure all of this out and this new law will become a staple in the prosecution of domestic violence cases. But please, give us at least a year.

    Oh, and we are still waiting for that new law that will automatically put bad guys in prison.

Judicial dynamite charge

In an effort to keep you up to date on the latest goings-on, TDCAA offers a wide range of resources. From an interactive website to telephone assistance and great legal manuals, we offer it all to keep you on the cutting edge of prosecution.

    So in that vein, I offer you a new weapon for your prosecutor arsenal: the Judicial Dynamite Charge. It was created by assistant prosecutors  Ray Thomas and Brian Price in the Brazos County District Attorney’s Office. A judge was having a very difficult time deciding on punishment in a child pornography case and had imposed a deadline on himself for his sentence. Thinking he might miss his own deadline, they prepared the following Allen charge just in case:

“I have advised myself in writing that I am apparently unable to reach a unanimous verdict.

    “Should I after a reasonable length of time find myself unable to arrive at a unanimous verdict it will be necessary for me to declare a mistrial and discharge myself. The indictment in the case will still be pending, and it is reasonable to assume that this case will be tried again before me at some future time. I will be impaneled in the same way I was impaneled and will likely hear the same evidence which has been presented to me. The questions to be determined by me will be the same questions confronting me, and there is no reason to hope that I will find those questions any easier to decide than I have found them.

    “Judges have a duty to consult with themselves to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. A judge must decide the case for himself, but only after an impartial consideration of the evidence with himself. In the course of deliberations, a judge should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. No judge should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of himself or for the mere purpose of returning a verdict.

   “With this additional instruction, I am requesting myself to continue deliberation in an effort to arrive at a verdict that is acceptable to me, if I can do so without doing violence to my conscience. I will not do violence to my conscience but continue deliberating.”

The judge made the deadline just in time, so the Allen charge wasn’t ever necessary. But aren’t you glad to have a copy of the charge for your next bench trial?

So where does crime stand?

In January 2011, the 82nd Legislative Session will begin. We get lots of questions about what the hot topics will be. If the surveys are correct, those topics by and large will not be related to crime.

    In a recent University of Texas/Texas Tribune poll, Texans responded that the most pressing problems the country faces are the economy (22 percent), jobs (14 percent), and the national debt (18 percent). Crime and drugs was the top concern of … 1 percent of Texans. That would be right in front of housing, Iraq, federal nominees, foreign trade and the voting system, which all garnered a solid 0 percent.

    That’s not to say that we won’t see plenty of criminal justice bills. And it’s not to say that y’all aren’t seeing significant up-ticks in certain offenses, especially property crimes, in your jurisdictions. There will certainly be opportunities for folks to get things done at the capitol; it just may be that it gets done without a lot of attention.

Former DA intern named to the bench

As a matter of personal privilege, I would like to congratulate Marc Brown, an assistant DA in Harris County, on his appointment to the 180th District Court bench. Marc started in Houston as an intern in the 262nd District Court in which I was an assistant back in the 1980s. Marc surprised the heck out of then-District Judge Doug Shaver in the first case he tried when a booming oratory came from his then-skinny frame. Yeah, Marc was a touch slighter than he is now, but he could really bring it in that big cavern of a courtroom. We knew he’d make a fine prosecutor, and he has.

Hands-on help

Most of us believe that what we do makes a real difference in peoples’ lives—and it does. But Jeff Matovich, an assistant criminal district attorney in Dallas County, was even more hands-on when he recently performed CPR on a man in the courthouse parking garage. The fellow had had a heart attack, and Jeff’s actions are credited with saving his life. Nicely done!