March-April 2011

And you think your cases are tough

Rob Kepple

TDCAA Executive Director in Austin

A prosecutor’s job can be difficult, and I am amazed at how well y’all keep up good spirits in the face of some pretty horrible things that you deal with daily. I think part of that is knowing you are on the right side of them—seeking justice for those who were wronged and accountability for the culprits—and knowing that your work makes a difference. But if your docket gets you down now and again, just remember you don’t have the crime problems that they have in, say, Uganda.

    Last month I got a message from the Honorable Ken Anderson, a district judge in Williamson County and a former DA and president of TDCAA. Judge Anderson had returned from a library-building trip in Uganda, and during the trip had a chance to spend some time with the No. 3 guy in the Uganda Justice Department. The official allowed Ken to review Uganda’s annual crime statistics report. The report looked in many ways like one from the United States—the usual tally of murders, robberies, rapes, and other violent crimes.

    But the No. 1 problem for prosecutors was a bit of a surprise: human sacrifice cases. The defendants are uniformly wealthy and influential, and the witnesses are too terrified to speak. So even though the incidents of human sacrifice are increasing, prosecutors just can’t seem to get a conviction.

     I have heard of Texas referred to as “prosecutor Disneyland” before, but this story puts it in perspective for us!

Innocence and a money grab?

More than one prosecutor expressed concern that when the state bumped up compensation for folks who are released from prison with a finding of actual innocence to $80,000 per year of wrongful incarceration, it would create a new industry with an economic incentive—for lawyers.

    I don’t think anyone begrudges payments to those who spent years wrongfully imprisoned, but at what point does offering them a million bucks begin to distort the legal process? I have recently had calls from prosecutors who worked to free guys from prison because of a messed-up investigation and/or prosecution, only to get a hard sell from a lawyer to change the finding on the record to one of “actual innocence.”

    And now, the Associated Press is reporting that the State Bar of Texas has filed a suit against a Texas attorney for misconduct over legal fees into the millions of dollars charged to former inmates. This suit is in addition to suits filed by some of the former inmates themselves.

    There are plenty of good folks doing this work—prosecutors and defense attorneys alike—who are fairly compensated and doing it for all the right reasons. The last thing we need is for a financial incentive to invade this truth-finding process.

The journalist privilege and life’s little ironies

Many of you followed the events of the 2009 Legislative Session relating to the journalist shield bill. For years prosecutors had steadfastly argued against applying a journalist shield to criminal cases, opining that finding the truth in a criminal court trumped a journalist’s prerogative to conceal valuable information that might inculpate or exculpate in the most important of matters, that of a person’s liberty. But as you all know, our legislators sided with the guys who own the newspapers and TV stations, and the shield law was passed in the last session.

    It is amusing, however, to see how this plays out in real life. Not long ago Julian Assange, the founder of Wikileaks, loudly criticized The Guardian newspaper for leaking details from confidential police reports concerning his alleged sexual assault of two women in Sweden. Assange accused the paper of leaking the details to undermine his then-pending bail application. (Is anyone else thinking about the goose and the gander?) It’s safe to say that prosecutors continue to believe there is a time and a place for everything—pre-trial confidentiality is a key to a fair proceeding, and complete access to the facts, even those held by a reporter, can get the best result when finding the truth really matters.

Batson and DeLay

Many prosecutors watched with interest as the State of Texas v. Tom DeLay played out in an Austin courtroom in December. Most political observers wrote that it was a tough case for the State to make: state money laundering charges against the former U.S. House majority leader. But forget the politics. Courthouse observers, like sports enthusiasts, were interested in the match-up between the lawyers. The case pitted legendary defense attorney Dick DeGuerin and the crack staff of DeGuerin and Dickson against the seasoned Travis County DA team of Gary Cobb, Beverly Mathews, Steven Brand, and Holly Taylor.

    The most memorable and instructive moment may have come early in the trial. In a move that stunned many courtroom observers, and perhaps the defense team as well, prosecutors challenged the defense team’s use of its preemptory strikes under Batson and its progeny. The defense struck all six African-American veniremen, and the State was not going to allow it to go unchallenged. In the dust-up that ensued, the court re-seated one of the prospective jurors.

    I mention it because for years, prosecutors have talked about the inappropriate use of preemptory challenges by the defense but have shied away from addressing the issue in trial. Perhaps in the interest of justice we should take another look at this and get a little guidance from Gary, Beverly, Steven, and Holly on how they successfully argued it. And from my view in the cheap seats (to close my sports analogy), it seemed like the State offered an early punch in the nose that put the defense on notice that it was going to have a serious fight on its hands.

… and the horse you rode in on!

If there was ever a night to be on Sixth Street in Austin, it would have been the first Friday in January. That’s when two cowboys, astride a noble steed and a mule, rode in from the dusty plains to have themselves a night on the town … only to be arrested for DWI. What a picture in your mind’s eye, huh? (No word on the precise moving violations alleged in the offense report.) Our two cowpokes ended up in jail, and their trusty mounts spent the night at an Austin animal shelter.

    From a prosecution perspective, the case ground to a halt. As the Travis County Attorney David Escamilla observed, “We were surprised there is more caselaw on drunken cowboys in Ohio and Pennsylvania than we found in Texas.” And not to burst your mental image of our two cowboys, but it turns out they copped to drinking too many cranberry-vodkas and came to town with a plan to lure folks out of the bars to take pictures with the animals. Not exactly the Gus McCrea and Captain McCall of our Lonesome Dove image, but, it fits the “Keep Austin Weird” bill quite nicely.