May-June 2012

All the prosecution news that’s fit to Tweet!

Rob Kepple

TDCAA Executive Director in Austin

We have just made what will prove to be a significant change on our TDCAA website: the Issues In Prosecution section on the front page is now a TDCAA Twitter Feed. Here is why that is important for you.

    If you have kept up with the TDCAA web page (or better yet, have it as your computer’s home page!), then you know what is happening in our profession by reading the  news articles in Issues In Prosecution. The down side is that the good news we post there doesn’t always get spread around your community and the state. (Only 150 people on average read any given article.) Good and interesting things are happening everyday, and it is a challenge to get the word out.

    The solution? Twitter. We actually have two Twitter accounts. One, @TDCAA, focuses on public policy and legislative issues. The other, @TDCAANews, replaces Issues in Prosecution from our website’s home page. It compiles in one location news from throughout the state and elsewhere on what’s happening in prosecution.

    We can now post all of the interesting articles from around the state and simultaneously send them out to everyone in the state who follows us. And that list is growing to include governmental organizations, individuals, and news outlets. So now when you post an article on Twitter, we can re-tweet your story to everyone who follows TDCAA’s feeds. And you can do the same by re-tweeting the news that you find on the TDCAA feeds through your Twitter contacts.

    So if you haven’t already, sign up for your own Twitter account and follow both @TDCAA and @TDCAANews to stay updated on what’s going on in prosecution.

Texas prosecutors, you are being called out

On March 29, the Innocence Project produced its second in a series of regional panel discussions, titled the Prosecutorial Oversight Tour, in Austin. You can read about this tour and watch video of the discussion when they post it at The impetus is the Connick v. Thompson decision, in which the Supreme Court of the United States relied on the doctrine of prosecutorial immunity in denying Mr. Thomson monetary damages for Brady violations that contributed to his wrongful conviction for capital murder. The thrust of the tour at this point seems to be to either chip away at prosecutorial immunity or encourage states to find other ways to hold prosecutors accountable.

    This is important stuff and deserves attention and discussion. But leave it to the “loyal opposition” to approach the issue in a less than even-handed fashion. We should not have been surprised when, on the eve of the Texas tour stop, the Texas Tribune, essentially acting as a press agent for the Innocence Project, announced that the IP is releasing a study that shows that there was prosecutor misconduct in 91 criminal cases from 2004 through 2008 and—drum-roll here—none of the prosecutors were ever disciplined. “It paints a bleak picture about what’s going on with accountability and prosecutors,” is the quote the Tribune attributed to the IP folks from California who did the study of Texas.

    Now, did we get a chance to look at the report provided to the media so we could comment intelligently on it? Of course not. The media outlets had it, but it was “embargoed” for their use only in writing their story-cum-Innocence Project press release. For those of you new to the game, that is standard operating procedure in these affairs, so we were not particularly surprised.

    But now it is your turn. I have tried diligently to get a copy of the full IP report, which is being written by the Veritas Initiative out of California. (You can check it out at www It appears that as of this journal’s press time the IP report is not actually ready yet. The underlying data is what has been turned over to the media and others, and we now have a copy of it. I encourage you to look at their list of cases, which you can find on the TDCAA website in the Journal Archives (look under this issue’s Executive Director’s Report for the Excel file). If you find a case that you handled on the list, I would sure like a call from you to discuss it.

    The list may surprise you. The methodology in compiling the list appears to be simple: Do a Westlaw search for any case in which the term “prosecutor misconduct” appears. Period. That means any case in which that term is even alleged, however frivolously, is included. No additional research. No additional discussion with participants, such as the prosecutors who are accused of misconduct. And we aren’t talking about cases involving the traditional notion of prosecutorial misconduct—underhanded or unfair behavior designed to subvert the defendant’s right to a fair trial. We are talking about such trial issues as objections to argument or complaints about an improper predicate. You know, typical appellate stuff.

    Prosecutor conduct is always a fair topic and deserves the attention of the public. I know that TDCAA leaders and prosecutors in general are committed to being a part of the discussion—if it is accomplished in an even-handed and intellectually honest fashion. We are committed to giving you the information you need to be an honest actor in the discussion as it plays out in your community. In the coming months, prosecutors working with TDCAA staff will be working to correct the misimpression left by this report. Once again, if you’ve got a case on this list, I’d love to talk to you; call me at 512/474-2436.      

John R. Justice in trouble?

In the January-February 2012 edition of The Texas Prosecutor, I let you know that the John R. Justice Student Loan Forgiveness program had been cut from $10 million to $4 million dollars. Everyone had hoped that the new-ish program would go the other direction and grow, because it serves all of the prosecutors and public defenders in the country. These economic times have not been good to many criminal justice and fledgling initiatives, however, and we just got word that the Texas allocation of the funding for 2012 would be $112,113 (down from $701,233 in 2010) to be split between all qualified prosecutors and public defenders. Our friends at the Texas Higher Education Coordinating Board have been considering the most equitable way to distribute the money, including “investing” it all on Powerball lottery tickets (actually they didn’t consider that, but that was my recommendation at one point).

    There are currently 121 prosecutors participating in the program, and the THECB is working to distribute the money in a fair way that honors the three-year commitment the current John R. Justice recipients made to be eligible for the funds. The next application period opens in the fall, so stay tuned. If you have questions, you can call Lesa Moller at the THECB directly at 512/427-6366. Lesa has done a great job of running this program for y’all, and she will do her best to get you the answers you need.

Danny Buck Davidson on the silver screen

By the time you read this, the new movie Bernie will be showing at the local cinema near you. The film is described as a dark comedy retelling the true story of a Carthage, Texas, undertaker and the wealthy woman he murdered in 1996. The headliners are Jack Black as undertaker Bernhardt Tiede Jr. and Shirley MacLaine as the dowager Marjorie Nugent (whose body was found in a freezer).

    But in what promises to be an Oscar-worthy performance, Long-view’s own Matthew McConaughey plays the role of Panola County Criminal District Attorney Danny Buck Davidson. I’ve only seen the trailer released on Youtube, but I really think he nailed it. (You can watch the trailer at: .com/watch?v=F7VSAFvPq7c.)

    Finally, many of us dream about having a memorable tag line. The trailer for the movie shows a scene in which Matthew McConaughey/ Danny Buck is talking to the media, and with baseball bat in hand, sagely declares: “Wheel of misfortune: your name comes up, Danny Buck’s comin’ to get you first.” Not exactly “Go ahead—make my day,” but I think Danny can get a lot of mileage out of that in court.

Andrews County ­Attorney retires

Thanks on behalf of the profession to John Pool, who on April 1 retired as the Andrews County Attorney. John did a great job in his corner of west Texas and is best known for his pioneering work in prosecuting a death caused by a drunk driver with multiple DWI-related convictions as murder. His work has brought some real justice for the victims of these crimes throughout the state. Tim Mason has stepped in as the County Attorney and will take the job full-time come January 1, 2013. Thanks, John, and welcome Tim. We look forward to Andrews County continuing to lead!

Training we won’t be offering

Our TDCAA training team, Erik Nielsen, Manda Helmick, and Dayatra Rogers, led by the Training Committee and its Chair Ryan Calvert (ACDA in Collin County), do a great job of getting you timely and relevant training. Stuff you need to do your job. We don’t mind taking ideas for good training from other folks, and indeed sharing trainers and topics is standard in this business. But there is one topic being offered as a keynote at this summer’s State Bar Annual Meeting that we will not bring to our fall conference. It is the presentation by a former lawyer and best-selling writer and novelist, Richard Patterson, titled “Expanding the Role of the Lawyer in Society.” Yikes. I know prosecutors are lawyers too, but I’m not sure that would play out well!