By Rob Kepple
TDCAA Executive Director in Austin
I am proud to report that when the Annual Criminal and Civil Law Conference launched in September, 881 people were pre-registered. And attendees jumped right in, with hundreds completing different sections of the course. As a reminder, you have until December 31 to complete the tracks, and there is a maximum of 18 MCLE hours available.
We have been very pleased with the response to the course—reviews have been overwhelmingly positive. People continue to favor live training, of course, but we delivered a quality conference when in-person training is not an option.
We learned a few things in the process. We are lucky that we have such a great faculty. I think the speakers learned that they actually need to bring extra energy to a recorded talk—there isn’t an audience to “draw” energy from. We also learned that a curated and recorded online presentation is preferable to a live Zoom meeting, which comes with a host of technical issues. Lastly, our training team’s instinct to focus on excellent audio quality, with video quality a close second, has paid off. Attendees have found that the sessions are easy to digest with minimal technical issues.
The only real moment of panic: I got a call the Wednesday of the Annual’s first day online from Henry Garza, the DA in Bell County. Henry asked me where check-in was for the conference! I was alarmed that members may have misunderstood what was happening and traveled to South Padre. Henry told me to relax—he knew the conference was online, and he actually was in South Padre! He wasn’t about to miss out on attending the conference at its intended location. Well played, Henry!
Thank you, Kenda Culpepper
This has been a challenging year, and I want to take a moment to thank this year’s TDCAA President and CDA in Rockwall County, Kenda Culpepper, for her rock-solid leadership. Kenda’s strong suit is communication, and that is precisely what was badly needed as things changed on what seemed a daily basis. In true “timely, relevant, and accessible” fashion, Kenda organized our regional directors to conduct regular Zoom meetings to share information, policies, and practices. But as far as her other presidential duties, Kenda never missed a beat. She penned a terrific article in the July–August 2020 edition of this journal about taking action after a mass shooting. She organized a number of contributions from Texas prosecutors to our neighbors in Louisiana affected by recent hurricanes. She kept the Board on track as we pivoted our training to online offerings. And finally, she kept her eye on the looming legislative session and began preparations for what will be one of the most challenging sessions we’ve seen.
Thanks, Kenda! It has been great to try to keep up with you!
Thanks to our retiring elected prosecutors
In this 2020 election season, at least 40 district and county attorneys will be elected or appointed. I want to thank those who ran for the office of elected prosecutor, served the people of Texas, and will be leaving at the end of this year (see the box below). It is safe to say that prosecution is one of the hardest and most rewarding professions, and TDCAA is proud to have served you all. Fair winds in your future endeavors!
Goodbye to Jaime Esparza
I want to take a moment to thank one retiring prosecutor who has meant so very much to this association and to me. I first met Jaime at the Harris County DA’s Office in the 1980s. Jaime had a good reputation as a tough trial lawyer, and folks were sad to see him leave Houston to return to his hometown of El Paso. In 1993 he was elected as the District Attorney for the 34th Judicial District covering El Paso, Culberson, and Hudspeth Counties. He became a strong leader of Texas prosecutors, served as TDCAA President, was instrumental in establishing the Border Prosecution Unit, and became a leader in the fight to modernize investigation and prosecution in domestic violence cases.
What is remarkable about Jaime is his ability to solve problems. Time and time again we would have an issue—for instance, funding for the assistant prosecutor longevity pay program—and Jaime would engineer a solution and see it through. His instincts for how to approach legislative issues that greatly impact prosecutors’ work borders on uncanny, and he will be sorely missed.
Finally, Jaime always has shown his love for this profession and for seeking justice. He works at doing the right thing, and he puts a lot of thought into it. I will never forget how he summed up a career seeking to do the right thing: “It’s just that easy, and it’s just that hard.” Jaime, you will be missed!
Mental Health Law for Prosecutors
By now you have a copy of Mental Health Law for Prosecutors on your desk. This publication, funded by the Court of Criminal Appeals, was written by four Harris County experts on the subject: Bradford Crockard, Jeff Matovich, Gilbert Sawtelle, and Erica Robinson Winsor. This book focuses on the duties and responsibilities of prosecutors when it appears a suspect or defendant has mental health issues, with a focus on the technical aspects that are important to prosecutors. I want to thank our authors for their hard work on behalf of the prosecutors of Texas and for putting their names on the front of the book. My guess is that you soon will be getting calls for advice from all over the state!
The ACLU Justice Lab
A very interesting legal experiment is underway. We know that this is the age of the advocacy group, and there are dozens of organizations with different agendas for reform. But the ACLU Justice Lab, with a detailed action plan, is different. The ACLU has announced an initiative to swamp a state with lawsuits brought by for-profit law firms and university legal clinics relating to allegations of racially motivated policing. The theory: “By focusing intensive efforts on a single state, the initiative aims to establish a litigation blueprint for altering police conduct across the country.” The ACLU is looking for 100 law firms, 25 law school clinics, and 1,000 plaintiffs to join.
The lucky winner? Louisiana. Right now, the ACLU is soliciting clients and law firms to participate, and it is an impressive list so far. Are they looking to win cases at the trial level to force change? Not necessarily: “Whether the legal actions result in wins, settlements, or losses, the sheer magnitude of cases will function to incentivize police districts and individual officers to alter their conduct (be it through hiring, training, action, or discipline)—because if they don’t, the lawsuits will necessarily continue in full force.”
The ACLU is up-front about the ultimate goal in the appellate process here: to advance a case on law enforcement qualified immunity to the Supreme Court. This bears watching. You can get more information at www.laaclu.org/en/campaigns/justice-lab-putting-racist-policing-trial.
Precedent on witnesses in masks
As we get back to trying cases, there is a debate about witnesses testifying while wearing face coverings. We have seen the defense object based on Sixth Amendment Confrontation Clause grounds, and there is at least one case that says witnesses can’t wear a disguise.
But I am not so sure that applies in every case, and there is some precedent you should know about if the issue comes up in court. Just ask Vic Wisner, a former Harris County ADA who tried a theft case in Judge Ted Poe’s court back in the 1980s. A baggage handler at the airport had stolen a valuable set of pearl-handled revolvers from a man by the name of Clayton Moore. Also missing from Mr. Moore’s luggage were the guns’ holsters and a Lone Ranger costume—because Mr. Moore, an actor, had portrayed the Lone Ranger on television and in movies in the 1940s and ’50s. Needless to say, the Colt 45s and Buscadera double-gun rig—which were custom-made for Mr. Moore and his movie persona—were extremely valuable.
When the trial day came, Mr. Moore came to court—fully decked out as his masked persona, the Lone Ranger. Mr. Moore pleaded with Vic that he be allowed to appear in his disguise, as he had in public appearances following his days on the famous TV show. As the trial opened, Vic made his request in open court. As Vic tells the story, Judge Poe made his pronouncement with flair: “I shall not be the man who unmasks the Lone Ranger!” And Mr. Moore testified in full costume, and the thief was found guilty and sentenced to 10 years in prison.
So there seems to be precedent for some witnesses—heroes and superheroes, I am thinking—to wear their masks on the stand. You can read more about it at https://hpou.org/hpd-history-the-lone-ranger-finds-truth-and-justice-in-houston-thanks-to-two-detectives-operating-with-speed-of-light.
 Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005).