March-April 2007

Executive Director’s Report

I have bragged about our TDCAA website before. We are also mighty proud of the weekly case summaries you get by e-mail. (If you don’t get them now, go to today and sign up!). And we have a great legal assistance team:  research attorney Sean Johnson and law clerk Emily Sitton.

But to make sure you get all the help you need, you should know that there are now law firms out there spamming away with offers to do legal research for $50 an hour. For instance, last week I got an email with a list of cases that could help me prevail in a DWI case on a motion to bar prosecution for a constitutional speedy trial violation. Gee, thanks. (In the spirit of full disclosure, you can get that kind of help at It takes you to the firm of Cheatham and Flach. No kidding on the name.)

You should know that TDCAA is keeping up in the battle for legal Internet dominance. This year, with the support of the newly formed Texas District and County Attorneys Foundation, a group of TDCAA members led by John Bradley (DA in Georgetown) is taking the wildly successful TDCAA website to new levels of content and usefulness. Some people have also asked that we freshen up the colors a bit. (Hard to believe people are tiring of that drab gray!)

As far as DWI research goes, I think we can go toe-to-toe with Cheat’m. In addition to having Sean, Emily, and Clay Abbott (as our full-time DWI resource prosecutor), we are working to add a new resource for prosecutors: a website dedicated to the investigation and trial of DWI cases. We will keep you informed as that work progresses.

Buy a trophy case

That’s my advice to L.E. “Ted” Wilson, a Harris County Assistant District Attorney. As you know, Ted is one of the state’s gurus of search and seizure. He’s also been a long-time faculty member at TDCAA seminars and is the proud winner of the prestigious C. Chris Marshall Distinguished Faculty Award. Add another honor to the mix: Ted is this years’ winner of the Leon Goldstein Award from the Crime Stoppers of Houston, which is named for one of the founders of the Houston chapter of Crime Stoppers. It is a fitting award, as you probably can’t count all the crime Ted has stopped in his career. Congratulations!

Seemed like a good idea at the time …

Prosecutors shuddered in 1996 when the Court of Criminal Appeals issued its opinion in Bauder v. State. That’s the case in which the CCA held that the State was jeopardy-barred from retrial if the prosecutor had intentionally or recklessly made a mistrial necessary in the first trial. In other words, every time a prosecutor made an unintentional mistake, the defense would have the opportunity to go after a jeopardy bar, and we’d be spending a lot of time arguing about just how bad the mistake was and the prosecutor’s exact mental state at the time.

The resulting thrashing about in the lower courts was not pretty. It took a lot of convincing, but the State Prosecuting Attorney’s Office, and in particular Jeff Van Horn, finally got Bauder turned around in January in a case styled Ex parte Swanda Marie Lewis. The reasoning: Texas should stick to federal precedent, which calls for a double jeopardy bar only when the prosecutor intentionally goads the defense into a mistrial to avoid an acquittal. See Chuck Mallin’s cover story in this issue for more information about Bauder and the court’s recent decision in Ex Parte Lewis.

We are always going to have spirited debates with our loyal opposition about certain cases, and in most of these situations reasonable people can differ. But I view it as healthy when a court can announce a new principal, then back up when it just flat-out doesn’t work. And Bauder was high on prosecutors’ list of troublesome opinions.

This isn’t an isolated example of a healthy judiciary; we’ve seen it before. If you were practicing in 1990, you would have cursed Grady v. Corbin, in which the Supreme Court held that a manslaughter prosecution was jeopardy-barred because the defendant had earlier pled out on the lesser included traffic offense of crossing the center line. It took the Supreme Court only three years to figure out that was the wrong direction to go in double jeopardy jurisprudence, and the court threw Grady in the jurisprudential trash heap in U.S. v. Dixon.

Another idea that sounded good at the time: requiring a definition of “beyond a reasonable doubt.” That was Geesa v. State in 1991. Folks on both sides of the bar had reservations about that, and the court officially scrapped the idea in Paulson v. State in 2000.

So now what troublesome caselaw is on the radar for prosecutors? Anyone have a clue?

Another new face

It looks like your prosecutor teams are in place after the changes at the beginning of the new year, but we have a recent new arrival to the profession. Mark Marshall has been appointed as the new McCulloch county attorney to replace Ginger Treadwell, who retired. Welcome!

What a difference a year makes

It wasn’t but a year ago that prosecutors were cringing at the news reports of a Panhandle prosecutor heading to the federal pen for drug abuse and other assorted unpleasantries. Fast forward, and we continue to get reports from the 31st Judicial District that the new DA, Lynn Switzer, is knockin’ ’em in the dirt. Her string of successes includes the recent prosecution of a couple of escapees from an Oklahoma jail. These guys terrorized their way from Caddo County to Wheeler County. It took a carefully orchestrated collection of witnesses from the FBI, Oklahoma police, and Texas law enforcement to prosecute these two.

The peace and dignity of the State have been restored along the north fork of the Red River.

Not so funny after all

Last year I made fun of the yearly Texas Lawyer Legal Almanac list of big law firm perks. It was kind of hard not to, given that your list of perks as an assistant prosecutor or staffer usually includes a paycheck, whether you need it or not. Our profession competes for talent at a different level.

I must apologize, however, for making light of the fact that one firm felt they needed to mention that they had an automated defibrillator. In this last year, most folks have come to view it as a pretty wise addition to an office, and indeed your TDCAA staff is now fully trained on that device, and we bring one with us to all of our seminars.

OK, all those perks are pretty much great. But I just can’t help but chuckle about one perk listed in 2006’s  almanac: the annual bosses’ day miniature golf tournament. You’ve got to admit, it sounds like swingin’ material for that popular TV show, “The Office.” (That’s what she said.)