Annual conference wrap-up

Rob Kepple

TDCAA Executive Director in Austin

We had a great crowd of 881 at the American Bank Center in Corpus Christi for our Annual Criminal and Civil Law Update in September. By all accounts the training sessions were great. I’d like to thank Kathy Braddock, an Assistant DA in Harris County and our Training Committee Chair, and all of the Training Committee members, for developing the tracks.
    And a huge thank you to Manda Herzing, our TDCAA Meeting Planner, and Patrick Kinghorn, our Assistant Meeting Planner, for putting together a smooth event. And Patrick, I need to pass along the compliments I got about the band on the U.S.S. Lexington Thursday evening—outstanding!
    Please be sure to always respond to our speaker evaluation emails. We take your comments very seriously, and we need your input to continue to improve our training.

Prosecutor of the Year
The 2015 State Bar Criminal Justice Section Prosecutor of the Year is Jennifer Tharp, CDA in Comal County. Jaime Esparza, District Attorney in El Paso, Hudspeth, and Culberson Counties, presented the award at the Annual. Jennifer is very deserving of this honor. She has proven to be a tireless advocate for change in domestic violence prosecution, having worked with the Texas Council on Family Violence in statewide training efforts, and provided key legislative support for the newly enacted Article 38.371 of the Code of Criminal Procedure, which expands the evidence available to the trier of fact in DV cases.
    But perhaps most im-portant is her courageous stand to support the rule of law in her own courthouse. Every now and again a newly elected prosecutor must make the decision to go toe-to-toe with judges who ignore the law to impose their personal visions of justice. It is a tough decision to make, but we know that once you make that decision, you are “all in.” Jennifer was forced into that position, and she had the courage to take on the fight for the rule of law—and the legal horsepower to win.1 Jennifer has provided some great caselaw upon which prosecutors can rely. So congratulations to a courageous and independent prosecutor!

Lone Star Prosecutor Awards
In the May–June 2015 edition of The Texas Prosecutor journal, we highlighted the prosecution of Eric Williams for the killing of Mark Hasse, Mike McLelland, and Cynthia McLelland. The murder of two Texas prosecutors sent shockwaves through our profession nationwide. I know that we all slept better knowing that Bill Wirskye and Toby Shook, two former Assistant Criminal District Attorneys in Dallas County, were appointed to handle that death penalty case as special prosecutors. The trial itself took place in Rockwall County, and Bill and Toby put together a fine team to get the job done.
    It is with great pleasure that the TDCAA Nominations Committee and the TDCAA Board of Directors announced the 2015 Lone Star Prosecutor Award winners: the entire team who worked to seek justice in that case. They are (in alphabetical order):

Miles Brissette (former ACDA in Tarrant County)
Kenda Culpepper (CDA in Rockwall County)
Tom D’Amore (former ACDA in Dallas County)
Danny Nutt (Tarrant County CDA’s Office)
Mark Porter (Tarrant County CDA’s Office)
John Rolater (ACDA in Collin County)
Damita Sangermano (ACDA in Rockwall County)
Toby Shook (former ACDA in Dallas County)
Jerri Sims (AUSA in the Northern District of Texas
    and former ACDA in Dallas County)
Lisa Smith (ACDA in Dallas County)
Rhona Wedderien (Tarrant County CDA’s Office)
Bill Wirskye (ACDA in Collin County)

To make sure these folks get the recognition they deserve, a formal presentation of their award will be made at the winter meeting of the North Texas Crime Commission. Thanks to all of you.

Prosecutors representing
Congratulations to Devon Anderson, DA in Harris County, on her appointment by Governor Greg Abbott to the Task Force on Improving Outcomes for Juveniles Adjudicated of Sexual Offenses. In addition, Governor Abbott designated Devon as the Presiding Officer of the 13-member panel, made up of law enforcement officials, legal experts, and juvenile specialists from around the state. The task force is charged with issuing policy recommendations to improve outcomes for juvenile sex offenders by studying the adjudication and disposition process and the rehabilitative programming and services available to those youthful offenders. Good luck!

Thanks to Quinell Blake, and welcome to Kelli Enderli
Next time you call TDCAA, you will likely have the pleasure of talking to our new receptionist, Kelli Enderli. Kelli comes to us from the world of televised sports, having worked behind the scenes at the Fox Sports Television Network. Kelli’s a terrific addition to the TDCAA family, so please welcome her.
    I’d be remiss if I didn’t also thank Quinell Blake, our former receptionist, who after a long career in telephone customer service (including decades as a telephone customer service specialist with major phone companies), finally hung up the phone and took the retirement job of her dreams right by her house: school crossing guard. Congratulations, Q!

The newest theory on “over-incarceration”
Many of you recall that in the ’90s the prison-overcrowding problem was initially blamed on prosecutors. The claim at the time was that we were filling prisons with sock thieves and hot-check writers. Thankfully, Dr. Tony Fabelo at the Criminal Justice Policy Council, did a ground-breaking study of exactly who was going to prison, for what crimes, and for how long. This revolutionary study, now replicated nationwide, showed that decisions on who was going to the pen were rational. (Indeed, we are still looking for that mythical sock thief in the big house.) Based on the Policy Council’s study, Texas rewrote the Penal Code in 1993, diverted 47 percent of the folks eligible for pen time to state jails (mostly drug and property offenders), and beefed up capacity for violent offenders.
    We know that the crime rate has consistently fallen in the last decade, and now that folks are feeling safer and money is tight, advocates are calling for a sharp reduction in the size of prisons across the board. The argument is that “a broken system” has led to “over-incarceration.”
    And as if to prove that nothing is new, the New York Times newspaper recently printed an opinion piece by David Brooks, a noted journalist, who argues that a law professor has discovered “the real roots of mass incarceration”: prosecutors. You can read the article here: http://www .nytimes.com/2015/09/29/opinion/david-brooks-the-prison-problem.html.
    Professor John Pfaff in a law review article titled, “The Macro and Micro Causes of Prison Growth,” argues that simple math reveals the real reason prisons have grown: 20 years ago prosecutors brought felony charges against one in three arrestees. Today, we are bringing charges against two of three arrestees. (A PDF of Pfaff’s article is below.) It’s as simple as that: We have gotten more “aggressive” in prosecuting violent criminals. My first reaction is to say, “Thanks,” as it is good to be appreciated for doing your job well. But I don’t think it was meant as a compliment.
    Phaff is quick to note that this is still a theory, and he has no evidence as of yet to back his claim. It would be very interesting to take this theory and see how it plays out in the Texas experience. The Times said that prosecutors have become “more aggressive,” but think about that for a second—doesn’t that just mean that prosecutors have gotten better by a third? After all, it’s not like 2015 prosecutors, getting bored towards the middle of the week for the lack of crime in their jurisdictions, go out and find people to prosecute, people we wouldn’t have touched back in 1995. We are still just prosecuting the cases that come to us. And as far as this vague notion that full prisons are somehow bad, Texas prosecutors are not out of step with the Texas Legislature or the general public—the Legislature has consistently increased punishments for violent crime over the last 20 years, and last time I checked Texas juries were not balking at handing down stiff sentences to violent offenders.
    So what if a study of Texas indeed shows that prosecutors have gotten better at securing convictions and pen time? What then? At some point in this discussion about “over-incarceration,” we will have a discussion about what drives big prison numbers. It’s the elephant in the room. The only way any huge reduction in the size of the prison system occurs is if the state slashes time served for violent offenders—the bad guys you are sending to the pen—with the blessing of the Legislature, juries, and the general public. That is going to be a tough conversation.

Endnote

1 In re Tharp; 2012 Lexis 6698 (Tex. App.—Austin August 9, 2012)(district court abused discretion in over-broad discovery order); In re Tharp, 351 S.W.3d 598 (Tex. App.—Austin 2011)(district court abused discretion in authorizing cash deposit bonds); In re State ex rel. Tharp, 393 S.W. 3d 731 (Tex. Crim. App. 2012)(district court erred by discharging a jury after a guilty plea to the jury and assessing punishment); State v. Villareal, 418 S.W.3d 920 (Tex. App.—Austin 2013)(district court abused discretion in accepting an open plea, then finding guilt on a charge not in the indictment and granting deferred adjudication).