November-December 2012

Doing the right thing

Rob Kepple

TDCAA Executive Director in Austin

At our Annual Conference we spent some time talking about our profession, the media’s overstated allegations of prosecutorial misconduct, and how we as prosecutors can do better. By now you all have read the report on the TDCAA website titled, “Setting the Record Straight on Prosecutorial Misconduct.” The report served as a centerpiece for our first day of training in South Padre, but I must give a lot of credit to our keynote speaker, Pete Adams, for setting the right tone.
    Pete is the director of the Louisiana District Attorneys Association. As you know, the prosecutors in Louisiana have been under scrutiny in the wake of the United States Supreme Court’s Connick v. Thompson decision in which the court, citing prosecutorial immunity, poured out a $14 million judgment for a person who had been wrongfully convicted due to Brady violations. So Pete knows this issue and has been working with his folks to squarely address it.
    And Pete was dead on. Louisiana prosecutors, like those in Texas, believe that wrongful convictions are indefensible and unacceptable. Pete’s advice was straightforward: Do the right thing for the right reason. But Pete recognized, as we all do, “the right thing” can sometimes be very hard to figure out.
    His advice? You are leaders in your community, and people will naturally look to you for guidance in criminal justice matters. After all, you are devoting your career to making your community a safer place. But to lead effectively, we as individuals and together as a profession must earn the trust of the public and lawmakers.
    By the time this edition of The Texas Prosecutor hits your desk, the TDCAA Training Committee will have met and begun work on the training recommendations contained in the misconduct report. There is a lot of work to do to modify and improve TDCAA training and support for Texas prosecutors to squarely address the issue of wrongful convictions. The association’s leadership is committed to getting it right and making sure that you continue to hold the high ground as a leader in criminal justice in your community.

Thanks to those leaving our “Band of Brothers”
On December 31, 2012, around 60 county and district attorneys will serve their final day in office. The list is so long this year that I decided to do it a little differently: to thank one of you, whom I know personally, and to let someone else, Nicole Crain, an assistant DA in Hill County, thank her longtime boss.
    First off, I’d like to thank Ken Sparks, County and District Attorney for Colorado County. Ken will be retiring at the end of this year. I first met him in the 1980s when he was a defense attorney in Houston. Ken had started his career as an assistant district attorney in Houston, so he was plenty patient with me as I was learning how to do the prosecutor’s job. Honest, respectful, and patient is how I remember my first dealings with him.
    It was my good fortune that I was here at the association when Ken took office in Colorado County. Like some of you, Ken was a successful criminal defense attorney, but he was best-suited as the leader of the law enforcement community. I think Ken is that type of person who uses his common sense and empathy for the victims of crime to guide him, and that is the type of person who makes a great prosecutor.
    Like all of you, Ken took his job very seriously. Ken was very active in educating and teaching his law enforcement officers and shared with us his Offense Report Manual, which has seen widespread use around the state. Ken thought a lot about what it meant to be a prosecutor and what it took to do justice in his community.
    Ken’s dedication to bettering the profession went beyond the county line; he served on the TDCAA Board, was a frequent faculty member, and he was very concerned that our profession remain above reproach. Ken set the standard for a public prosecutor very high and had little tolerance if someone failed to meet expectations.      
    On more than one occasion Ken served as a special prosecutor for other prosecutors who needed a hand. That is just the kind of thing each and every one of you has done for others in the profession.
    Secondly, I’ll let Nicole pay tribute to Dan V. Dent, the retiring district attorney in Hill County. “My boss, Dan V. Dent, is retiring after being the elected district attorney in Hill County for 32 years and seven months,” Nicole writes. “We’re a rural county located just off Interstate 35 between Dallas and Waco. Our office is small (just two of us attorneys), and until eight years ago, Mr. Dent did it all with the assistance of only his secretaries—no assistant district attorney, no investigator, just a lone prosecutor kickin’ butt and taking names from grand jury to appeals.
    “In the community, he is respected by all and known by all, which, incidentally, is a huge asset in picking a jury. Mr. Dent has outlasted changes in politics, judges, and constituents through his honor, integrity, and ability to be a strong, fair hand for justice. He survived when the courthouse and his office burned down in 1993, resulting in the loss of most of his files. He has even survived theft of evidence during a jury trial. The year was 1986, and ‘Tinyman,’ who was not so tiny, was on trial for manufacturing methamphetamine. Around the third day of trial, the meth lab and methamphetamine being stored in the law library of the courthouse were too tempting for Tinyman. In the middle of the night, Tinyman’s friends broke into the courthouse and stole the meth. Even without the evidence, Mr. Dent finished the trial, and Tinyman was convicted.
    “Mr. Dent, with his quiet ways, is a model for what we, as prosecutors, should seek to be.”
    Well said, Nicole! I’d like to thank every one of you because you have served well in a difficult profession, and as such have had the privilege of being among a group that had a rare bond, “we few, we happy few, we band of brothers, for he today who sheds his blood with me today shall be my brother.”  

Pre-filing of bills for the 83rd Legislative Session
The 83rd Legislative Session begins January 8, 2013, but pre-filing of bills begins November 12. To keep up with bills that affect our profession, click on the Legislative tab on the TDCAA website. When the session begins, there you will also see Shannon Edmonds’s posts analyzing what is going on in the big pink building.
TDCAA leadership report
At the Annual Business Meeting in conjunction with the Annual Update in September, the membership elected the executive committee, and four regions picked new regional directors for two-year terms. The new terms for these folks will begin on January 1.
    Lee Hon (CDA in Polk County) will move from President to Chairman of the Board; David Escamilla (CA in Travis County) becomes President; Rene Peña (DA in Atascosa County) becomes President Elect; and Staley Heatly (DA in Wilbarger County) becomes Secretary/Treasurer. In addition, Daphne Session (CA in Houston County) will take over as County Attorney at-Large and Joe Shannon (CDA in Tarrant County) will be the Criminal District Attorney at-Large. Finally, President Lee Hon has appointed Dan Joiner (ACDA in Taylor County) to fill the vacant unexpired term as Assistant Prosecutor at-Large. 
    Your new Regional Directors will be:  Region 1, Randall Sims (DA in Potter County); Region 2, Randy Reynolds (DA in Reeves County); Region 4, Patrick Flannigan (DA in San Patricio County); and Region 7, Maureen Shelton (CDA in Wichita County). Thanks to all of you for your willingness to serve the prosecutors of Texas!

Thanks for your service
This association thrives because it is truly a member-driven outfit. I want to take a moment to thank those who will be leaving board service for their efforts in keeping your association constantly working to bring you what you need. Those heading off the board at the end of this year are:  Mike Fouts (DA in Haskell County); Judge Susan Reed (CDA in Bexar County); Jo Anne Bernal (CA in El Paso County); Mark Yarbrough (C&DA in Lamb County); Jesse Gonzales (DA in Pecos County); Bernard Ammerman (C& DA in Willacy County); and Janice Warder (DA in Cooke County).  Thanks! 
A full-service prosecutor
Sure, we pride ourselves in doing a good job of representing the victims of crime, our counties, and our communities, but Will Thompson, an ADA in Navarro County, took public service to a whole new level a couple months ago when he came to the aide of a relative of the defendant he was trying.
     During a break in the court proceedings a woman appeared to pass out. Will and the court bailiff took charge, and Will, by putting his hand by the woman’s nose, quickly determined that she wasn’t breathing. He immediately began mouth-to-mouth resuscitation, and after the second breath the woman began to breathe again on her own. He stayed with her until the paramedics arrived, then got back to his day job. Just another day on the job for a prosecutor-slash-superhero!

Gender and our profession
Time for a fun fact: In the last issue of the Texas Bar Journal, the State Bar broke down the legal profession by gender. Of the 89,987 lawyers in Texas, 66 percent are men and 33 percent are women. The breakdown in prosecution is much different: Of the 2,511 assistant prosecutors, 50.98 percent are men and 49.02 percent are women. It’s good to see that kind of balance in the profession.