May-June 2011

An afternoon in the life of a rural prosecutor

Mike Fouts

District Attorney in Haskell, Stonewall, Kent, and Throckmorton ­Counties

I left you in my previous column on my way to docket call in Throckmorton. Throckmorton County is my most eastern county and is only 38 miles away from Graham and genuine fast food (they have a McDonald’s!). I have only three cases on the docket this afternoon, which is good because I need to plead a case in Kent County after we finish this docket call.

    I should first explain that a few years ago, I would have had many more cases in Throckmorton on the docket; however, thanks to the ingenuity and forward-thinking of the Throckmorton County Commissioners Court, that problem was solved. Awhile back, every meth cook living in a roach-infested camper trailer within 200 miles came to Elbert in Throckmorton County to steal anhydrous ammonia to make a batch. There was a small fertilizer business a few miles east of Elbert, which should be described more as a community than a town. It is extremely rural and thus seemed to be the perfect place to steal anhydrous.

    I tell you, catching these anhydrous thieves was like tank-hunting doves: Just get you a couple of six packs and some Slim Jims and wait for the anhydrous thieves to come to water. On one occasion, as John Riley, the Throckmorton County Sheriff, was transporting a thief back to Throckmorton, he passed a pickup going the opposite direction with several propane tanks in the back. He called the game warden, who went straight to the fertilizer tanks, and he caught those thieves.

    Anyway, back to the commissioners court. We were trying anhydrous thieves left and right, none of the criminals were from Throckmorton County, and it was costing a fortune. The commissioners assessed the situation, approached the owner of the fertilizer business, purchased the anhydrous tanks, emptied them, and left them empty. That was several years ago and my case load in Throckmorton County has declined by probably 70 percent. Now that is good country common sense.

    The first case on the docket is set for an arraignment. A lawyer who has a case way down the docket (case three) is loitering around, hoping the defendant will either hire him or the court will appoint him to the case. Either way it is fine with me—he is good to work with. I deal with about 10 lawyers almost exclusively. As a rural prosecutor, you get to know these lawyers, their families, and children. They are your friends and social companions. More often than not, during a jury trial I will eat lunch with defense counsel.

    Sure enough, Case Three Lawyer gets appointed to represent the defendant in case one. I give him my file, and he meets with his client in the back of the courtroom. He approaches me and tells me he thinks I have a problem with the language in the indictment, and even if I win the case he will beat me on appeal. Once on a complicated case from a charging standpoint, I asked Barry Macha, the then-Criminal District Attorney in Wichita County, for advice on charging, he said, “I will get my appellate guy to look into it.”

    I am my appellate guy, and if I might quote Gomez Adams (when appearing in court pro se), “They say that a lawyer who represents himself has a fool for a client, and with God as my witness, I am that fool!” Serving as my own appellate guy, I also exclaim, “I am that fool.” As a rural prosecutor you have to be a jack of all trades. You are the intake person, the research assistant, the appellate guy, the bond forfeiture guru—you are everything. It is unsettling when defense counsel springs a novel motion or argument on you in the middle of trial, and you have nowhere to go for help. You can’t call back to the office and have a number of other prosecutors to bounce it off of. Thankfully, I have been able to call the association and other prosecutors for help and advice, but occasionally you just have to roll the dice on a prayer.

    Case number two on the docket involves a person I grew up with and have known my whole life. Unfortunately, it is time for him to go to the pen. For the last month, I have had a steady stream of contact from friends and family telling we what a “good boy” this 47-year-old man is. This is an aspect of the job that I flat don’t like. I rarely seek to have the court appoint a special prosecutor; I figure the voters trusted me to do the job even when it makes me uncomfortable. I have prosecuted many former friends, classmates, and acquaintances. It is not pleasant to state the plea bargain to the court with someone you know sitting across from you at the defense table and his mother who had you over for birthday parties 30 years hence watching the proceedings. I know many, if not most, of the people I prosecute, and I look at it as part of the job and move on. However, I can’t say it does not take a toll on you after a while.

    Case three is nothing special, and we finish and head to Kent County. Normally, the court would not set cases in different counties on the same day. This, however, is an emergency: A defendant awaiting his measure of justice is in the Dickens County Jail. You city folks might not appreciate this but neither Kent County nor Throckmorton County has a county jail; thus, they contract with neighboring counties at about $40 a day to house their respective bad boys. Forty dollars per day may not seem like much, but 40 dollars here and 40 dollars there turns into real money, and pretty soon we might be talking about cutting back on a road grader, and that, my friends, gets the commissioners’ attention. I try my best to dispose of cases in a timely fashion so we minimize jail bills. The district judge, a former county attorney, shares this view so we are off to Kent County.

    I suspect that some increase in greenhouse gases and global temperature could be attributed to court appearances in this district because it is almost 90 miles from Throckmorton to Jayton. We conclude our business in Kent County and head back to Haskell, a casual 45-mile drive. I have to hurry back because the ladies in the Haskell County Courthouse have a team in the Relay For Life Friday night. Each team throughout the community is responsible for having a male contestant in the “Mister Relay” beauty contest where each fella is dressed as a woman. It is not surprising they recruited me, considering my soft facial features and gentle nature. I can only give thanks that my granddaddy isn’t around to see this. As an elected official in a rural jurisdiction, you do not get to skip a community event, fundraiser, or domino game—and frankly your attendance is expected.

    Between driving, talking to lawyers, and dressing in drag for cancer prevention and cancer survivors, I will try several felony jury trials each year, help out the county attorneys in my district with juveniles if they ask me to, and make many appearances before the grand jury and at numerous plea dockets. I can honestly say, being a prosecutor in a rural community is the best job on this earth … so please don’t tell anyone about it.