Rob Kepple
“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” —Abraham Lincoln.
Not everyone can do the job of a prosecutor. It’s been said that prosecutors drive some pretty heavy machinery, so that machinery can’t be entrusted to just anyone. The power of criminal prosecution demands good intentions and good judgment. Some people have the temperment for the job, but others are better off not having the discretion and responsibility to do justice.
Let’s face it: With 327 elected prosecutors and over 2,600 assistants statewide, at any given time we are going to have a few who aren’t well-suited for the job. Texas prosecution is healthy, but it is our continuing responsibility to look with eyes wide open at what has happened in the past so we can learn from others’ mistakes—and triumphs—for the benefit of our profession.
So, in this edition of The Texas Prosecutor, the cover story details the two trials of a former criminal district attorney, Ray Sumrow. This is not a particularly fun subject; many folks in this association know Ray and count him as a friend even to this day. But these cases are important for the expert way in which they were handled—kudos to Jim Skinner, John Schomburger, Justin Johnson, and Judge John Roach in the Collin County Criminal DA’s Office for taking on such a huge, sticky case.
We shouldn’t shy away from talking about this subject because of who the defendant is. In this way we honor the concept that the law holds us all to the same high standard, and we honor the prosecutors who have the unpleasant task of enforcing the law even when the lawbreaker may be within their own profession.
Seminar feedback via the TDCAA website
Last year we introduced the paperless seminar when we put papers and PowerPoint presentations online a week before the conference to give attendees time to download and print whichever files they wanted.
Y’all have shown an overwhelmingly favorable response to not having to lug around a heavy binder at every seminar. Our next innovation targets more paperwork: seminar evaluations. We rely heavily on them in creating and refining our courses, and we really want you to fill them out and hand them back, but our return rate is dismal, especially at large conferences such as our Annual Criminal & Civil Law Update.
To get a better response from you—and save a few trees—we are implementing a new Web-based evaluation system. After the seminar is over, attendees will receive an email from us inviting them to click on a link and fill out the seminar evaluation online. It’s like what Holiday Inn does after your stay, except we won’t ask if your pillows were fluffy enough. We will implement the new program for September’s Annual, so please take the time to share your thoughts after the conference!
“Witnesses to the Prosecution”
Prosecutors are keenly aware of the issues surrounding actual innocence cases and how those are playing out in the appellate courts, legislature, and media. One part that had been missing in the discussion, however, was an in-depth discussion with the trial prosecutors who obtained the convictions that were later overturned.
That piece of the story has finally been told. John Council, a long-time reporter for the Texas Lawyer, published a story in that weekly newspaper on June 9, 2008, entitled “Witnesses to the Prosecution.” In it, Mr. Council recounts his interviews with more than a dozen prosecutors who handled the Dallas cases at the heart of a string of exonerations over the last several years. You can find it on our website, www.tdcaa.com as a PDF, attached to this column below.
It is compelling reading. The prosecutors told about cases with unusual facts but few witnesses that pointed to a particular suspect. They spoke of doing the best they could with what they had. They talked candidly about the heartbreak of finding out that they had prosecuted the wrong person and relief that the person had been released from prison.
As we continue to develop our policies, practices, and law about handling actual innocence cases, it is good to hear from these dedicated public servants about their role in this national debate. Thanks, John, for adding this piece to the discussion.
The demise of the local op-ed page?
Every newspaper hopes to mold public opinion in its jurisdiction by publishing opinions and editorials. Maybe it is just here in Austin, but it seems that prosecutors and government employees in general take a beating on a regular basis. Fair enough—newspapers are supposed to provide that check and balance, and after all, good government is boring.
The traditional newspaper business ain’t what it used to be. Today’s information superhighway offers more varied views on any given subject and many avenues for news. A person doesn’t have to work for a paper or television station to report something newsworthy—she can simply tap away at her home computer at the end of the workday.
For instance, you might want to check the blog of an anonymous Harris County lawyer, harriscountycriminaljustice.blogspot.com. In response to all of the debate about convictions based upon the testimony of a single witness, the writer offers a pretty compelling argument for why convictions must be had on the testimony of a single eyewitness. (See the July 27th post.) A second blog, the Women in Crime Ink Blog (womenincrimeink.blogspot.com) is also worth a look. Read Kelly Siegler’s post dated July 23, titled “Win at All Costs? Not Really.” In it, Kelly argues that the real problem in the profession is not bad prosecutors seeking to convict innocent people with unfair tactics. It’s exactly the opposite: timid prosecutors unwilling to take the close, tough cases to trial. She argues that crime victims are not well-served by prosecutors unwilling to take on the tough case and work to develop more evidence and that prosecutors should have more faith in the jury process.
These are insightful opinions you won’t ever see in the local op-ed page, and it is satisfying that these other views find a way into the debate.
The latest polling on your job
A group of really smart Texas leaders, movers, and shakers get together every so often in a group called the Texas Lyceum. And every year, they poll Texans on issues, including what are the most important issues facing Texas today.
The good news is, Texans are confident you and your local police force have it under control. In 2007, they had immigration and education at the top of the problem list. Crime? Way down near the bottom, with only 4 percent thinking it was the most important problem facing the state. In the poll just completed in 2008, fuel prices, the economy, and immigration were at the top. Drugs/Crime netted just 1 percent of the vote. (The response “None/ Don’t Know” got 3 percent.)
This lack of interest in criminal justice apparently is resonating nationally. George Will, in the June 22, 2008, edition of the Washington Post, observed that there is near silence about crime because Americans feel safer. Why? Better policing and more incarceration is his answer. He even makes fun of some New York Times headlines: “Crime Keeps on Falling, But Prisons Keep on Filling” (1997); “Prison Population Growing Although Crime Rate Drops” (1998); “Number in Prison Grows Despite Crime Reduction” (2000); and “More Inmates, Despite Slight Drop in Crime” (2003)—as though falling crime rates have nothing to do with dangerous people being behind bars.
So crime may continue to lead your local nightly news, but it probably won’t be the top issue for our state leaders when the legislature convenes in January.
Goodbye to great friends
In the last few months we lost a couple of well-known and respected prosecutors. The first was Ted Busch, a former first assistant district attorney in the Harris County DA’s Office, who passed away in June. Ted had retired and moved to Fort Stockton, but he stayed in close touch with his Harris County colleagues. I had the privilege of working in the Houston office when Ted was first assistant, and I know how well he was liked by those around him.
Our second loss these past few months was Steve Storie, a former investigator in Dallas, who died of cancer. Many of his friends didn’t even know he had been diagnosed. Steve was one of the first prosecutors on the TDCAA circuit training folks on how to investigate and prosecute family violence cases with an uncooperative victim. He contributed mightily to our profession, although his contributions on the football field as a high school and college official may be even more well known to those who loved him.
A new and an old TDCAA face
When you get the chance, please welcome the newest members of the TDCAA staff, Sherry Chen and Andrew Smith.
Sherry Chen has taken over as our Database Manager and Membership Director from Lara Brumen. Sherry has been in the database development and management business for a number of years, including working as the information systems manager for the Texas Council on Family Violence. We are very happy to have Sherry on board, and it didn’t take long for our members to discover her talents. Sherry is already deep into helping a Texas prosecutor unlock secrets stored in an ancient database that uses—gasp—floppy disks! Glad to have you on board, Sherry.
And Andrew Smith has taken over the job of Publications Sales Manager, replacing the very capable John McMillin who now studies law at Texas Tech. Many of you might recall that Andy worked as our sales manager several years ago. Like a big family, we just reeled him back in! Lucky for us. He will fulfill your book sales orders while continuing to pursue his music career. Welcome back, Andy!
And news of the weird—really weird
Many of you surely read with disgust about the recent legal wrangling in Wisconsin over a revolting scenario and whether it actually constituted a crime. Here are the facts:
Some guy, while reading the obituaries in his local paper, saw the picture of a lovely young woman who had just died in a motorcycle accident. He decided that he would like to have sex with her. So with a friend and his twin brother (and a pocket full of condoms and lubricant), the brilliant trio went to the cemetery late one night where this poor woman was recently laid to rest and attempted to dig up her coffin. They got pretty far down but simply couldn’t open the sealed sarcophagus before they were discovered and arrested.
Now, that’s about as disgusting as it can get. But what’s the crime in Wisconsin? Believe it or not, prosecutors had to go all the way to the Wisconsin Supreme Court before they could prosecute for, of all things, attempted sexual assault. Their theory, which the Supreme Court affirmed, was that the situation fit the definition of attempted sexual assault because of the victim did not (could not) consent. Whew!
When we first read the reports on this case, we immediately wondered how this offense could be handled in Texas, so I sent our summer law clerk, Pam Dallefeld, to the books. What she reported constitutes a true tribute to the Texas Penal Code. As you know, the Texas PC has been rated the best of all state criminal codes in past studies when it comes to clarity, coverage, and ease of use. Here is why: You’ve got your pick of attempted abuse of a corpse (PC §42.08(a)(5)), criminal mischief (PC §28.03(f)), and you could even throw in a criminal trespass (PC §30.05) charge, depending on the cemetery’s security. Here is something you can’t say in Wisconsin: I bet a Texas jury would max these guys out! ✤