November-December 2016

Biggest Annual in 15 years

Rob Kepple

TDCAA Executive Director in Austin

Our yearly gathering of Texas prosecutors in Galveston was by all accounts a huge success. And huge in numbers—1,061 attendees and speakers, which is second only to the turnout in 2001 (just after the September 11 attacks) when 1,084 people went to our Annual. I want to thank our TDCAA Training Committee, led by Melinda Westmoreland, Assistant CDA in Tarrant County, for planning an agenda that left people complaining only that they couldn’t go to all of it. And thanks to the TDCAA training team: Brian Klas, Patrick Kinghorn, and LaToya Scott, for making the magic happen.  

And the award goes to …
I want to congratulate our 2016 award winners, who were very deserving of their honors.  First, TDCAA has enjoyed the energy, expertise, and enthusiasm of Justin Wood, Assistant DA in Harris County, at the Legislature and at TDCAA trainings, for many years now. He is very deserving of the Oscar Sherrell Award for service to the association.
      The Executive Director of the Special Prosecution Unit, Jack Choate, won the C. Chris Marshall Award for his contributions as a trainer and teacher. Jack has been a great presenter for the association, and as the one-time TDCAA Training Director really ramped up our offerings. The Lone Star Prosecutor, Ralph Petty, an Assistant DA in Midland County, richly deserved the honor for his selfless support of other prosecutors for decades.
    And finally, our local host in Galveston County, CDA Jack Roady, is the State Bar Criminal Justice Section Prosecutor of the Year. Jack earned the honor for his selfless work in leading the prosecutorial effort to get out in front of the mixture DNA issue. Because of his tireless work, Texas leads the nation in creating the procedures to systematically address the problem.  
    Congratulations to all!  

MADD’s 2016 Outstanding Prosecutors of the Year
Congratulations to Bill Swaim and Allison Tisdale, Assistant County Attorneys in Travis County, who in September were honored by Mothers Against Drunk Driving (MADD) with the prestigious Outstanding Prosecutor of the Year Award. Bill was honored for his work in using increased bonds and bond conditions to ensure that offenders with multiple DWI cases don’t re-offend, and Allison was recognized for her expertise in blood and drug evidence and for her successful prosecution of high-profile cases. Thanks for your hard work, Bill and Allison—you deserve the recognition.  

Thanks for your service
This December will see the retirement of some great Texas prosecutors. In the next issue of The Texas Prosecutor journal, we will do our best to welcome all the new prosecutors and honor those who have ably served. But I want to take a quick moment to recognize our County Attorney in Jim Wells County, Jesusa Sanchez-Vera, who will retire in December after 32 years of service. Jesusa has been a force in her jurisdiction and among our county attorneys, and in terms of county attorney longevity she is third out of 177.  
    I would also like to recognize Bruce Curry, the DA in Kerr County and the current dean of Texas district attorneys, on his retirement at the end of the year after over 30 years of service. Bruce has run a good office for many years in the Hill Country, and his constituents have been well-served.
    Thank you both for your service and leadership!     

California screamin’
On November 30 California Governor Jerry Brown signed into law Assembly Bill No. 1909. This bill, a reaction to some high-publicity Brady problems, has rattled our prosecutor friends in California. The new law provides that: 1) it is a misdemeanor for a person to willfully, intentionally, and wrongfully alter, manufacture, plant, conceal, or otherwise mess with evidence with the specific intent that someone will be wrongfully charged with a crime or that the evidence be produced as genuine at a trial; 2) it is a felony for a police officer to do any of that, and 3) it is a felony for a prosecutor to intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information with the specific intent that the material or information will be concealed or destroyed or fraudulently represented as the original evidence at trial. (You can read the whole bill at
    Matthew Guerrero, President of the California Attorneys for Criminal Justice (an association of criminal defense attorneys), which supported the bill, was quoted in a news report: “By signing AB 1909 into law, California is no longer going to allow this epidemic [of prosecutor misconduct] to grow with impunity. This law will put bad-acting prosecutors on notice; the state is watching your actions and these ethical violations will incur severe and justified punishment.”
    Ouch. It is always chilling to be called out by name in such a statute. I talked to our friends in California and learned that the new statute doesn’t do much differently—it is essentially a re-statement of tampering with evidence crimes already on the books. So why did California lawmakers feel the need to pass such a law? One theory is that California does not have an active bar grievance system that addresses prosecutor conduct—this lack frustrated California lawmakers and eventually led to this “message legislation.”  
    Can this happen in Texas? We may see such a bill in the upcoming legislative session, but I think the narrative in Texas has been different. Texas prosecutors have been very pro-active in addressing issues of Brady, exculpatory evidence, and discovery; the Texas Legislature has already passed laws expanding the reach of the State Bar when it comes to Brady violations; and as we all have noticed, the bar has been very active in punching the ticket of prosecutors over Brady complaints. Accountability for Texas prosecutors is alive and well.
    Finally, those of you who heard the keynote speaker at our Annual in Galveston, Alafair Burke, remember her observation that passing laws aimed at punishing a bad actor is exactly the wrong approach when seeking to address Brady issues. That’s because in reality prosecutors aren’t out there deliberately trying to hide exculpatory evidence. So let’s hope our friends in California keep their heads up. If not, you may be seeing a flood of résumés from California.  

Colorado smokin’
We are finally getting some numbers from Colorado on the impact of the legalization of marijuana. This really isn’t a shocker to anyone: Crimes have increased, youth involvement in pot is up, and marijuana-related hospital admissions have exploded.  And, it would seem, the illegal pot trade is still thriving. You can read all about it in a report recently issued by the Rocky Mountain High Intensity Drug Trafficking Area (HIDTA) task force by downloading the PDF below.
    But on the other had, look at the boon to entrepreneurs: There are now 424 retail marijuana stores in Colorado, which beats McDonald’s (202) and even Starbucks (322).

Our prosecutor family in Baton Rouge
In August, a thousand-year flood engulfed Baton Rouge and the surrounding areas in Louisiana, which was every bit as damaging as Hurricane Katrina but with none of the media appeal. It seemed as if no one in the nation paid any attention to our neighbors’ plight. So I was gratified that when the call went out for help from the three hardest-hit Louisiana DA offices—many staff members’ homes were devastated by the rains—the TDCAA Board quickly donated $1,000 to the recovery effort.
    But there was also a more urgent request—a request for people. Our friends at the Louisiana District Attorneys Association organized an effort to dispatch work crews to clean up every home of prosecutor office employees or law enforcement officers in the affected region. The number of houses was in the triple digits. With as good a staff as we have at TDCAA, I felt that I could leave the association to them for a few days and go to Baton Rouge.  
    The devastation is difficult to describe. We have all seen the damage a tornado does. Take that, and mix in a primordial soup of water, heat, humidity, and mold. Each day I was assigned to a crew. Our job was to strip the house bare from the floor up to at least two feet above the crest of the water. Furniture, drywall, insulation, flooring, appliances—it all went into big piles by the street. After the house was stripped, the owners would get up to a $15,000 construction stipend so they could get the power and water back on and move back in—to “shelter in place” as FEMA (the Federal Emergency Management Agency) calls it. The day I got there, tired crews had just completed their 64th house.  
    I was lucky the first two days: The houses I worked in had had the power restored, which meant the air conditioners were on and huge fans were already starting the drying process. We did our best to save the things we could in each house. I was struck by the resilience of one homeowner, who in the face of a devastated home insisted that we salvage the kitchen and bathroom sinks. She had no give-up in her, and that provided a lot of motivation to keep after it. I will also never forget that day because I got my first Red Cross meal, served by a couple old guys who drove a Red Cross food truck down from New York. I want that job when I retire.
    My last day was different.  I was assigned to a crew of police officers from Lake Charles, who had been organized and directed by the Lake Charles DA John DeRosier.  Our team of 20 drove north from Baton Rouge to rural Clinton. We inched our way through a small rural neighborhood that had been completely underwater for a week and found the house of a Louisiana crime lab employee. She was sitting out front of a house that had yet to be touched, except for the neat stack of photographs in wet frames sitting next to her.  
    We descended on the house, which clearly had been flooded nearly to the ceiling and only recently drained. And I mean descended, because each time you went into the darkened house it was a version of hell on earth. I’ve never seen so many rugged-looking cops gag from the stench. But no one slowed down—time after time men and women disappeared into the darkness to reappear with a shovel full of soggy, wet … stuff. Clothes. Sheetrock. Insulation. Furniture. All soggy and dank and soft and with mold already forming. At one point one crew was inside throwing things out the windows while another crew carried the refuse to the pile accumulating in the front yard. And a special thanks to the two guys who pretty much single-handedly took on the kitchen, which still had all the appliances inside—and food that had long since rotted to mush.       
    It was at the end of this grueling day, looking at that mountain of trash we had built and a house that had been stripped down to the studs and sprayed with anti-mold chemicals, that I began to appreciate what makes our Louisiana friends so unique and admirable. It’s what made Pete Adams, Roxie Barrios Juneau, and the other LDAA staffers instinctively organize their effort to help. You see, I never heard one complaint, one rant at the government, one call of how it wasn’t fair that Hurricane Sandy on the East Coast was a month-long TV movie and government officials didn’t even come to Baton Rouge for a week. People just got to work. I saw people who rely on each other as a family, a prosecutor and law enforcement family that could take care of each other one house at a time. The job was too big for any one person, but no one was left to fend for himself because his family was there for him. It was a powerful lesson in what we can do together—and can do only together—and I was honored that they allowed me to be part of their family for those days.
    I do have one complaint. I was not the only person who, at the end of the third day when someone shouted, “Buds for everybody!” was sorely disappointed to find that the Anheuser-Busch can in my hand contained … water. I brought that can home unopened as a reminder of the spirit of our friends in Louisiana.