July-August 2014

Brady training FAQs

Rob Kepple

TDCAA Executive Director in Austin

By the time you read this column, we will be well into our round of summer Brady training. These three-hour courses include the one hour of training mandated in Government Code §41.111 relating to a prosecutor’s duty to disclose exculpatory and mitigating evidence and information. Apart from our in-demand Legislative Update regionals, which we provide every other year (when the legislature is in session), these Brady courses appear to be the most popular regionals we have ever offered, as five of the seven courses are filled to capacity. Perhaps it has to do with “ethics” and “free” and “mandatory.”
    But if you didn’t get a chance to sign up for one of these courses, never fear! We’ve been fielding lots of questions from frantic prosecutors across the state, and I’m here to reassure you that we’re making it easy to get this mandatory hour. Some FAQs and their answers:
•    When do I have to complete the course? If you were a prosecutor as of January 1, 2014, you have until December 31, 2014. If you started as a prosecutor after that date, you need to take the course within 180 days of starting your employment as a criminal prosecutor.
•    Are any prosecutors exempted? Yes—lawyers who do strictly civil work and lawyers who prosecute only Class C misdemeanors. But everyone else must take the course.
•    Who offers the course? TDCAA is offering it at every conference this year (other than our DWI regionals and our Key Personnel & Victim Assistance Coordinator Seminar in November) and at the aforementioned series of free Brady regionals (see a list of all of them below). Because of the high demand, we plan to add more cities to our roster for later in the summer, so keep an eye on our website, www.tdcaa.com, for when and where those might be.
    Other CLE providers may offer the training too, but we don’t know if any will do so.
•    Will the course be available online? Yes! TDCAA recently filmed material for our free Brady webinar, and we plan to make the finished product available for online viewing in August of this year. Again, watch our website for details.
•    Why does the State Bar have no record that I took the course? While the State Bar keeps most CLE records, including general ethics information, it has no duty to keep records of compliance with this new law. Instead, the CLE provider who offers the course must yearly submit attendance records to the Court of Criminal Appeals (CCA). If you take the TDCAA course, we will make sure the CCA gets proof of that compliance. If you need to verify our attendance records, contact our database manager, Dayatra Rogers, at [email protected].
•    Where can I find the new requirements? The new law is Government Code §41.111. The Court of Criminal Appeals’ requirements governing compliance with that law are found in Rule 12 of the Rules of Judicial Education, posted online at www.cca.courts.state.tx.us/jcptfund/ pdf/RulesOfJudEdu112513.pdf.

TDCAA ­seminars with Brady training
Prosecutor Trial Skills Course, July 13–18, at the Radisson Town Lake in Austin.
Brady & Ethics regional course, July 18, at the Radisson Town Lake in Austin.
Brady & Ethics regional course, August 27, at 916 Main St., in the 2nd floor auditorium (connected to the courthouse), in Lubbock.
Annual Criminal & Civil Law Update, September 17–19, at the Convention Centre in South Padre.
Elected Prosecutor Conference, December 3–5, at the Westin Domain in Austin.
Registration for all TDCAA ­seminars is online only at www.tdcaa.com/training.

TDCAA and the Twittersphere
In an effort to keep you informed about current events of importance to Texas prosecutors, TDCAA has two Twitter accounts. The first is our newsfeed, @TDCAANews, which keeps you up-to-date on what is going on in courthouses and in our profession. The second, @TDCAA, is devoted to governmental affairs, including up-to-the-minute reports on legislative activities from Shannon Edmonds here at TDCAA. Both accounts are retweet-worthy, so get online and follow them today.

If you give the Legislature a cookie …
Recently Brian Erskine (ACDA in Hays County) obtained a life sentence for defendant Robert Ritz, who was convicted under the relatively new offense of Continuous Trafficking of Persons. (See the article in this issue, “Making full use of the Continuous Trafficking of Persons law,” for a more in-depth story from the prosecutor’s point of view.) The 43-year-old Ritz was a TDCJ prison guard who had a sexual relationship with a 14-year-old girl he met online—a crime we might normally try as a sexual assault. But Ritz’s particular offenses also fell under the human trafficking statute because, among other elements, the defendant moved the victim around to various locations to commit multiple sexual crimes. There was a little consternation in some corners about the charge and the sentence, primarily because these facts aren’t what some people (including a state representative) view as the crime of “human trafficking.” And the jury had some lesser options when it came to the charge, but they convicted of the most serious offense of Continuous Trafficking of Persons, which in this circumstance carried a life sentence.
    Although some folks have bristled a little at the State seeking the most serious available charge for a crime, the facts sure seem to have justified it, and the jury validated it. So for those who think the prosecutor just shouldn’t have used a charge even though it was supported by the evidence, this case may be more of a lesson in criminal law legislation. First, the statute itself illustrates the challenge of trying to target in the Penal Code what is a factual subset of a broader crime. In this case no one disagrees that human trafficking is a serious thing, but much of the targeted conduct is and has been covered in existing sexual assault, kidnapping, and prostitution statutes. The beauty of the Texas Penal Code is in its simplicity as a “model penal code”: It describes broad categories of conduct with broad punishment ranges. Simply put, almost everything is already against the law in Texas if it is done with bad intent.
    Time and time again, we see that it can be a challenge for the legislature to carve out a specific set of facts for special treatment that fits the legislature’s notion of the crime (for instance, human trafficking). Legislators might have an idea of a certain crime in their heads—now try to write a new law criminalizing it. It can be very tough to get the words to match the vision.
    Which leads to Lesson No. 2: Prosecutors will seek to use the statutes given by the legislature to achieve justice as we see it. In the pressure cooker of a legislative session, it is pretty tough to predict exactly how a statute will be used in the courthouse—there are just too many factual scenarios out there to anticipate all of them—but count on us to use the statute when the facts fit and justice demands. And it may not be as the Legislature originally predicted.
    Lesson No. 3: Like giving a mouse a cookie, enact a new policy and it is likely to lead to demand for more, and the legislature may replicate that law again and again. Life without parole is the classic example. Whatever your opinion of the merits of life without parole as an alternative to the death penalty, once the legislature got comfortable with the concept, it began to expand LWOP to all sorts of other crimes.  
    It shouldn’t be surprising, then, that prosecutors will actually use it.

Drew Smith’s Lonely Choir plays on!
For the last six years when you have ordered a book from TDCAA, you have had the good fortune of working with our Sales Manager, Andrew Smith. Many of you also know that Drew is an accomplished musician as the principal of The Lonely Choir. I am happy to tell you that Drew has landed a great new daytime gig as the office manager for an up-and-coming advertising and marketing company. This is a real step up for him, and he will do well. Congratulations Drew—we will miss you during the day! And we will still come to listen to you play at night.

Welcome, Jordan ­Kazmann
The good news is that we have landed Jordan Kazmann as our new Sales Manager. Jordan is an experienced hand at member services and fulfillment, so we won’t be missing a beat on getting you the books and materials that you need. Please welcome Jordan next time you call in with an order!

Prosecutor leaders
Congratulations to a pair of prosecutors who have taken the helm of a couple state entities. First, congratulations to Christy Jack (ACDA in Tarrant County) on her appointment by Governor Rick Perry as the Chair of the Board of the Office of Violent Sex Offender Management. The mission of the agency is to enhance public safety by developing and implementing strategic management policies regarding the monitoring of sexually violent predators and sex offenders who have been through the civil commitment process. Tough and important work.
    Also, congratulations to C. Barrett Thomas (ADA in Nolan County) on becoming the President-Elect of Texas Young Lawyers Association. We look forward to working with Barrett as he focuses on training and services for young lawyers, including prosecutors!

The profession of ­prosecution in a booklet
TDCAA has published the second edition of its booklet “The Texas Prosecutor: Justice in Action.” This 12-page booklet is available to all prosecutors to use as a resource and a handout when talking about the profession of prosecution. It has a great discussion of what it means to be a prosecutor by Jaime Esparza (DA in El Paso County), Timothy Salley (ADA in Moore County), Dana Nelson (ADA in Travis County), Rocky Jones (ACDA in Dallas County), Ted Wilson (former ADA in Harris County), and Jim Skinner (former ACDA in Collin County). It includes salary ranges for a sampling of different-sized offices and various levels of experience, and it lists offices that have internship programs. Thanks to Sarah Wolf for putting the original booklet together and producing our second edition. Need some copies for law school interviews, a high-school civics class, or an animal club luncheon? Just contact Sarah at [email protected].