March-April 2013

In memory of Mark Hasse

Our profession was rocked on January 31 when we learned of the murder of Kaufman County Assistant Criminal District Attorney Mark Hasse. As you all know, Mark was ambushed by unknown (as of press time) assailants on his way to the courthouse.
    In the days that have followed Mark’s murder, there has been a tremendous outpouring of support from Texas prosecutors and indeed prosecutors from around the country. Mark was known as a hard-nosed career prosecutor who was dedicated to justice and the community he served. Mark was, in short, just like you: a superhero who had chosen to use the powers he had for good. To fight crime. To protect the public. To seek justice.
    Like all of you, I have struggled with this horrible crime because I wanted to “do something.” We all want to help in these times, even as we know there may be little we can do in the short term. We want to honor Mark, and as important, we want to show our support for his family, friends, and co-workers at the Kaufman County CDA’s Office.
    I believe Richard Alpert, an ACDA in Tarrant County, has expressed what we all may be feeling in this tough time. This from Richard’s posting on the TDCAA user forum:      

To be a prosecutor in Texas is to be part of a family
A family that fights for justice,
A family full of brothers and sisters that are not afraid to march forward
When the odds are against them and their only weapon is the heartfelt belief that
Their cause, no matter how hopeless, is just.
We do this not for fame, for most of the battles we fight are out of the public eye.
We do this not for money, for most in our profession are better compensated.
We do this because we are called to do this.
We do this because our hearts tell us we must.
When one of us wins a battle we all rejoice.
When one of our number fails we all grieve.
And when one of our family falls, dragged down by an enemy that fires and flees,
We all weep, we all pray, and we all know that the best way to honor the memory of our fallen brother’s ­memory is to carry on.
His loss may scare us but it will not stop us.
It won’t make us turn away from our calling.
I never met Mark but I feel his loss
And I’m comforted in my belief that with our loss
Heaven has gained an advocate, a voice that will speak for
those that are victimized by the anger, cruelty, selfishness
And horror that we call crime.
Rest in peace, Mark.
May the battles fought by your family
Bring honor to your memory.

    Thanks, Richard, for finding words that I could not.

The independent and courageous prosecutor—the dénouement
In the last edition of The Texas Prosecutor, I discussed some recent examples of prosecutors who made the decision that justice demanded that they take on their judge with a mandamus. Prosecutors are often reluctant to battle their judge in this most direct fashion, but sometimes it is necessary if it seems that the court has overstepped the law in some form or fashion.
    And so it was, as we reported, that David Weeks (CDA in Walker County) reluctantly filed a mandamus in the middle of a capital case to prohibit his judge from issuing, in David’s opinion, an illegal and tragically flawed jury charge which would lead to an injustice. It seemed that the judge was not impressed with the State’s prosecution of the “non-shooter” co-defendant in the death of a prison guard, and the judge’s jury charge pretty much tanked the State’s case.
    And as it turns out, David wasn’t the only one who didn’t like the jury charge. The Court of Criminal Appeals weighed in and conditionally granted the mandamus to require the trial court to issue the proper jury instructions. (See page 6 for a more in-depth analysis of this case.)
    To the surprise of all and on the motion of no one, the judge announced a mistrial on the ground that too much time had elapsed since the end of testimony, and it would be too hard for the jurors to finish their work. The judge did not poll the jurors before his actions. It’s safe to say that no one could have predicted the judge’s nuclear response to the mandamus.
     The moral of the story? Mandamus does indeed remain the option of last resort for prosecutors, because as the old courthouse saying cautions us: “A judge can’t always make you do something, but he can make you wish you had.”

Research on prosecutor discretion
In December 2012, the Vera Institute issued a report titled: “Anatomy of discretion: An analysis of Prosecutorial Decision Making.” This may be one of the first efforts to study not just the raw numbers involving the prosecution of cases—what cases come in and what happens to them—but to delve into a more qualitative analysis. That is, how prosecutors make their decisions.
    The Institute performed the work in two unnamed, moderately large offices. One was called the “Northern County” and one the “Southern County.” Both were jurisdictions of around a million people with equally diverse populations. The study covered the gamut, from initial screening to sentencing recommendations to dismissals.
    You have to work your way through and around a lot of numbers, but it is worth the read. This won’t surprise you as a prosecutor, but it is good to see it in print: Prosecutors make pretty rational decisions, and their primary concern is the strength of their case. The report notes that prosecutors are likely to judge their case with two questions, “Can I prove the case?” and “Should I prove the case?”
    Are there variations on how cases are treated? Yes. Indeed, resources play a role in the disposition of cases, which should not surprise any Texas prosecutor. To read the report yourself or listen to some podcasts on the report, go to: anatomy-discretion-analysis-prosecutorial-decision-making.
Guess the TDCAA staffer
I am honored to serve Texas prosecutors here at the Texas District and County Attorneys Association. And I think we have managed to put together a crack team of very talented people who are eager to help you be the best you can be.
    But I had no idea just how deep our talent runs here. There is a lot more to this staff than you may see on a daily basis. For instance, we have one person on our staff who I can’t believe even spends time with us. This person has had a career as a professional athlete and a professional actor. Oh, and this person is a champion weightlifter.
    Can you guess who it is? (The answer below.)


ANSWER: Answer to the “guess the TDCAA staffer” question: William Calem, TDCAA Director of Operations and Chief Financial Officer. William spent a number of years as a professional waterskier, both in the United States and Germany. After his skiing career, he worked as an actor in Los Angeles. Doubtless you have seen him in many a toy commercial, though you may not remember it. Finally, William and his wife operate a Cross Fit school in Georgetown where he keeps in shape. It was only a matter of time before he won a regional competition in the clean and jerk, which he did last year!