Rob Kepple
In the last year we have had a number of successful felony-murder prosecutions of DWI felons who kill while driving under the influence. The general public, speaking as jurors, have again and again affirmed their belief in this charge by giving out sentences way above the 20-year limit on intoxication manslaughter. If you read our July-August 2006 edition of The Texas Prosecutor, you will find a great article by Tanya Dohoney on how to handle one of these cases from start to finish. You might also want to check in with Jeri Yenne, CDA in Brazoria County, for punishment tips. In March a jury sentenced a four-time DWI offender who killed a 32-year-old woman to life in prison.
Congratulations again to all of the prosecutors who have worked to develop this area of the law. Y’all may yet be able to convince some of these people not to get behind the wheel.
The emergence of the felony-murder theory is a good example of how thoughtful prosecutors can use the law to find justice. Seems we have done that a lot lately in the area of DWI, where the legislature tends to move pretty slowly. Look at the area of breath testing: With breath-test refusals hovering around 50 percent, we still haven’t seen a legislative solution. Enter prosecutor creativity and search warrants for blood. By all accounts there has been a dramatic increase in the use of search warrants to obtain blood in DWI cases, all using existing law.
Just goes to show that one way or another, prosecutors find a way to make these cases.
A Blue Star Texan
The passing of Matthew Paul, the State Prosecuting Attorney, was a shock. He was an intellectual force who chose to use his gifts in service of the state. Many of you have benefited from his wise advice, and our criminal jurisprudence flourished under his guiding hand. You have seen his many contributions at TDCAA training events.
But you may not appreciate the depth of his commitment to the state and prosecution. Four years ago, in the dark days of a state fiscal crisis, Matthew appeared before a beleaguered House Appropriations Committee. Believing that it was crucial for the state that his tiny little agency survive, he did something that is still talked of at the capitol: He offered to take a deep cut in pay to keep his staff. Stunned, the legislators quickly recovered and accepted the offer. They rewarded Matthew with a hastily drawn blue star on yellow legal paper.
To the day he died, Matthew was operating with a sliced budget; he took personal pay cuts to fund the other personnel and office duties. Ironically, the legislature is finally poised to pass a bill that would put the State Prosecuting Attorney into the Professional Prosecutor Act and pay that position a salary equal to that of a district attorney. That’s a good thing, and Matthew would have been most deserving of it. But for a guy with such dedication to justice, a blue star may have been just fine.
Damned if you do, damned if you don’t
In this issue of The Texas Prosecutor on page 6, our President and Chairman of the Board, David Williams, writes about the challenges facing prosecutorial independence in the wake of the recent TYC meltdown. Sometimes prosecutors can get in just as much trouble for prosecuting as not prosecuting.
Just ask Johnny Sutton, the United States Attorney for the Western District of Texas. Not long ago Johnny’s office completed the successful prosecution of two Border Patrol agents, Ignacio Ramos and Jose Compean, for shooting and wounding an unarmed drug dealer in the back after he abandoned his load on the U.S. side and was fleeing back to Mexico. The agents also got in trouble for covering up the shooting. Under the stringent federal sentencing guidelines, both got about 10 years.
This prosecution has raised an uproar amongst some in D.C. and some television pundits, notably Lou Dobbs, who accuse Johnny of being on the wrong side of the border war. Under the theory that at some point television talking heads should let the public know the facts, Johnny recently went on the Dobbs show and posted a discussion of the case on his website, www.usdoj.gov/ usao/txw.
All of this highlights what y’all already know: Prosecutorial independence is healthy. An allegiance to the facts of a case is all that is required of an independent prosecutor, and that should be enough for an informed public.
One of the publicity problems that Johnny faces is that the agents both got double-digit sentences under the federal sentencing guidelines. I hope this case re-affirms our state’s commitment to a model penal code that has broad categories of crimes with broad punishment ranges, with a ton of discretion for the court and jury to assess sentences. Maybe those mad at Johnny over the prosecution could redirect their attention at those guidelines.
Appellate specialists, rise up!
As this edition of The Texas Prosecutor goes to press, we are awaiting word from the State Bar as to whether there will be a new legal specialty: criminal appellate law. A hearing on the subject is set for April 25. The existing criminal law specialty can be hard to obtain for appellate practitioners because of the lack of trial work. Keep an eye on the Texas Board of Legal Specialization (TBLS) website, www.TBLS.org, for proposed standards and other news about the possible specialty.
Loan forgiveness update
It isn’t moving fast, but there are some signs of life out of Washington D.C. The John R. Justice Prosecutors and Defenders Incentive Act has been filed as S. 442 by Senator Richard Durbin (D-IL), H.R. 893 by Congressman Ted Poe (R-TX), and H.R. 916 by Congressman David Scott (D-GA). A special thanks to Congressman Poe, a former assistant district attorney and district judge in Houston (and a lifetime member of TDCAA) for pushing this initiative.
In late February the Senate bill had a good hearing, with the witnesses led by NDAA Chairman of the Board Paul Logli. The bill itself would authorize $25 million in appropriations in FY 2008 and amounts as needed thereafter. This is all good news, but patience is required. Even if the bills get wings and pass, my guess is the appropriations to support the measure are not going to kick in immediately—that will take another round of work on the Hill. But a big thanks to Congressman Poe, the other sponsors, and the folks at NDAA for their hard work.
Your honor
Congratulations to Dib Waldrip, CDA in Comal County. Dib has been appointed to the 433rd District Court serving Comal County. Good luck, Dib!
Big-tent preachin’
By the time this edition of The Texas Prosecutor reaches your desk, the legislature will be just about done messing around with the laws. It will be time for us to get the new code books out. And while Diane Beckham and the TDCAA publications team compiles the best and most timely set of code books, Erik Nielsen and the training team gets our summer Legislative Update road-show together. Check out the schedule on page 9.
Once the legislature goes sine die on May 28, Shannon Edmonds gets to work putting together that invaluable book of wisdom, the 2007-2009 TDCAA Legislative Update book. And it seems to breed controversy, which undoubtedly comes when Shannon describes some of the bills that passed and how they might impact your business. You will recall that in the last year all sorts of folks twisted off when the Legislative Update pointed out that a fair reading of the laws under the Code Construction Act could apply the death penalty statutes to doctors who perform certain procedures relating to abortion. No one intended that, to be sure, but pigs is pigs. In addition, Shannon had the temerity to suggest that the new “traveling presumption” relating to carrying a weapon didn’t constitute a get-out-of-jail free card. What nerve! By the way, Shannon’s observations on these subjects have stood up quite nicely in the face of quite a bit of editorializing and even an AG’s Opinion.
So I’m interested to see what kind of trouble Shannon can get into this summer just by making a few valid observations about the new laws.