An update on the new discovery law

By the time you read this column, SB 1611, the Michael Morton Act, will have been in effect for a couple months. We are hearing from many prosecutors about the challenges they are facing implementing the new discovery law. We have tried not to jump to conclusions too quickly, but instead to let the procedures shake out a bit before we get into serious discussions with other courthouse professionals about how the process should work and what may need to be changed in the next legislative session.
    From what we are hearing, the only people who seem to be less thrilled with some of the clunky language of the bill and the paperwork load would be … the defense bar. You will find some pretty good writing on their view of the law in the November–December edition of The Voice, found at the Texas Criminal Defense Lawyers Association web site, www.TCDLA.com. I was gratified to read that their President, Mark Daniel, shares our concern that a defense lawyer may violate the law’s redaction provisions and a victim or witness may be hurt or threatened as a result.
    TDCAA leadership is planning on getting together with the defense bar this spring and talk about how the new discovery process is going. My guess is that there will be many areas where there is mutual agreement on changes that need to be made, and we will be asking for your input (and participation!) when the time comes. Stay tuned.

The bobblehead
You may have noticed that my photo  (as an attachment below) is a little different this time. I want to take a moment to thank the staff here at TDCAA, one of the most awesome groups of individuals ever assembled. Mostly because of their “members first” attitude, but also because they gave me the most wonderful Christmas gift a boss could ever get: my own bobblehead! After all, a bobblehead is the sign that you have really made it in this world. And it makes decisions easier: Just hit the head and see if it nods “yes” or “no.” How easy is that?!

The legislature gets ­this one right
If you have been to any one of our Legislative Updates in the last—well, any of them ever—you hear us have a laugh at the legislature’s expense over some of the laws that pass. Of course, you know that it can be an ugly process, but it can also work pretty well and the folks at the capitol really do work hard to get it right.
    I want to take a moment to thank all of those who worked to pass SB 275, the bill that changed the punishment for Failure to Stop and Render Aid from a third-degree felony to match the punishment of Intoxication Manslaughter, a second-degree felony. This happened in the wake of the crime committed by a capitol staffer, who in the afterglow of a big night at the bars struck and killed a young woman in West Austin—and kept on driving.
    It was gratifying because in December here in Austin, a guy who had allegedly been loading up on alcohol all day drove his truck right through a Prius, which was occupied by a beloved schoolteacher and her son, killing them both. The intoxicated driver kept on going, I can imagine only because he thought he could get far enough away that the alcohol wouldn’t be a factor in the case. Wrong, Bubba. It might turn out to be a solid intoxication manslaughter case, but it is good to know that if worse comes to worst, the spectre of alcohol will at least be an aggravating factor in the FSRA punishment hearing. Nice work, Texas Legislature.

Judge Reed goes ­nationwide
Judge Susan Reed, the Criminal District Attorney in Bexar County, has been appointed to the Council of State Governments’ Justice Center Board of Directors. The Council of State Governments is a bipartisan group of about 20 legislative leaders, court officials, and law enforcement officers who guide the Justice Center’s projects. And these projects are important to what prosecutors do: They research all sorts of criminal justice issues ranging from mental health and justice reinvestment to diversion programs, and make recommendations to policymakers around the country. This group is not afraid to have a prosecutor with a tough-on-crime reputation on its board, and that is a good thing. If you want to see what the Council of State Governments is up to, go to www.csgjusticecenter.org.

Another Texan goes national
And congratulations to Court of Criminal Appeals Judge Barbara Hervey, who has been appointed to the U.S. Justice and Commerce Department’s National Commission on Forensic Science. As you know, Judge Hervey created the Criminal Justice Integrity Unit at the Court of Criminal Appeals, which has taken a lead role in the investigation of the root cause of wrongful convictions in Texas. The commission was recently created by the U.S. Department of Justice and the U.S. Department of Commerce’s Institute of Standards and Technology. Its mission is to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification. Good luck, Judge!

2013 Groesbeck Citizen of the Year
It is award season, so it is only fitting that stars in every walk of life get the recognition they deserve. This year, we are proud to announce that our own Roy DeFriend, Limestone County Attorney, took home the trophy as Groesbeck’s Citizen of the Year. Roy has had a track record of leading the pack, from high school valedictorian to president of his law school class at Baylor to head dishwasher at the First United Methodist Church Sunday Breakfast Club to, well, County Attorney in Groesbeck. Congratulations, Roy.

Hugo Marston and The Bookseller
This falls into the category of a “busman’s holiday,” but I can’t resist a good crime novel. If you are like me, then you might take a look at the Hugo Marston crime series, which begins with The Bookseller. And you will like the protagonist, a down-to-earth Texan who serves as the chief of U.S. Embassy security in Paris—who solves crime on the side. It’s one of those page-turners where you can follow the leads and trails and will enjoy the ending.
    What’s fun about the book, beside the grip the character takes on you, is that Marston is the creation of Mark Pryor, an assistant district attorney in Travis County. I am not entirely sure how an Englishman prosecuting crime in Austin creates a crime-fighter in Paris, but it works.

Welcome new prosecutors
Welcome to our newest Texas prosecutors, who bring a wealth of experience to their new jobs. Cory Crenshaw has been appointed as the Jefferson County Criminal District Attorney. Cory served as an assistant district attorney in Brazos County and as an Assistant United States Attorney. And Kollin Shadle is the new Stonewall County Attorney. Kollin is a former Lubbock Assistant Criminal District Attorney who moved home to Aspermont. Welcome to your new roles in the top spot!

The National Computer Forensics Institute
The recent computer-hacking scandal involving discount retailer Target was a rude reminder that a new type of crime and a new type of criminal are out there in front of a computer keyboard. It is going to take knowledgeable prosecutors and investigators skilled at computer forensics to stay ahead of this crime wave. Fortunately, our friends in Alabama have built and funded the National Computer Forensic Science Institute. This is a federally funded center dedicated to training prosecutors and investigators from around the country to detect and prosecute those engaged in the black art of computer crime. Many Texans have already been to this state-of-the-art center. An application is required, and once accepted the whole thing is free, including transportation and lodging. Interested? Check it out at www .ncfi.usss.gov/ncfi.

Exonerations and ­allegations of ­prosecutorial misconduct
It seems that lots of different organizations have chimed in on issues surrounding exonerations, eyewitness identification, post-conviction DNA testing, and allegations of prosecutorial misconduct. For instance, you probably read recently that the University of Michigan started what it calls the National Registry of Exonerations, and the school recently reported a record year for exonerations. Texas had 13 in 2013, half of which appear to be cases in which the defendant pled guilty before lab results on the drugs in question came back negative. In any event, that is some good information and it didn’t seem like folks went off the rails when this report was released. You can check it out and actually review the Texas cases included on their list at www.law.umich.edu/special/exoneration/Pages/about.aspx.     
    But you may also read some pretty odd stuff out there. Many of you have emailed me about a group that calls itself the Center for Prosecutor Integrity (CPI) out of Rockwall, Maryland. With as much fanfare as it could muster by email, it announced the creation of its “Registry of Prosecutorial Misconduct.” You can check it out at www.prosecutorintegrity.org. On the website, it claims to be “the nation’s only organization with a sole focus on enhancing prosecutorial ethics. The goals of the Center are to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions.” Although the center has released some “reports,” you will quickly discover that its missives are basically regurgitations of things already published in someone else’s report or in the newspaper.
    So who is this group really? Great question. I did a little digging and found a couple articles about the principles involved in this group. Some interesting reading. It turns out that the CPI is an offshoot of a program called SAVE, “Stop Abusive and Violent Environments, Inc.” SAVE advocates against “misandry,” which is perceived to be a war on men through sexual assault and domestic violence laws. If you read some articles about the folks who started the SAVE group, you will find that one of them appeared to run a Russian mail-order bride business. Check out the article at www .washingtonspectator.org/index.php/Robert-OHara.html. One of the creators of SAVE and this new center has a blog that may give some insight into this newest effort focused on prosecutors. You can take a look at www.avoiceformen.com/author/bobohara. There is a backstory here somewhere.
    The lesson is that the Internet can give a lot of people the ability to claim they are “x” or “y”, but I am having a hard time believing that this “center” is going to add anything constructive to the issue of wrongful convictions.

Thanks, Lara Brumen Skidmore!
I want to thank Lara Brumen Skidmore, our former database manager, for her longtime and loyal service to TDCAA and its members. Lara had been our database manager since we created the electronic database system in the late 1990s. She truly loved her job, and we joked around here that about half of our database was really stored in her brain—she knew you all that well. Lara has moved to Houston with her family (her husband’s job transferred him there), so thankfully we will get to see her every now and again!
    We are fortunate that we have folks like Dayatra Rogers, who will ably fill the role as our new database manager, and Kaylene Braden, who has been promoted to membership director and assistant database manager.  
 
Introducing Quinell Blake
When you call our office, you will have the good fortune to speak to our new receptionist, Quinell Blake. Quinell comes to us after a long career in customer support for Bell Atlantic/Verizon. It is safe to say that when it comes to customer service and support over a telephone, there is no one with greater expertise! Please welcome her when you call in.