September-October 2012

Is there an epidemic of prosecutorial misconduct in this country?

Rob Kepple

TDCAA Executive Director in Austin

This is one of the questions the TDCAA Training Subcommittee on Emerging Issues faced in the last nine months. On the first page of this edition of The Texas Prosecutor, you can read about the work of a committee appointed in December 2011 by Lee Hon, TDCAA’s President and the Criminal District Attorney in Polk County, to examine important issues in Texas criminal jurisprudence and report back to the full TDCAA Board and membership with recommendations for how we as a profession and association can best address them. The subcommittee examined exonerations, forensic science, eyewitness identification, and allegations of widespread prosecutorial misconduct, studying cases, interviewing people, reviewing scholarly treatises, and spending hours upon hours developing findings and recommendations. 

    I want to take a moment to thank the members of the committee for their hard work: 

Lee Hon, Chair, Criminal District Attorney in Polk County
Bernard Ammerman, County and District Attorney in Willacy County
Kenda Culpepper, Criminal District Attorney in Rockwall County
Laurie English, District Attorney in Pecos County
Michael Fouts, District Attorney in Haskell County
Heath Harris, Assistant Criminal District Attorney in Dallas County
John Neal, Assistant District Attorney in Travis County
Matt Powell, Criminal District Attorney in Lubbock County
Jack Roady, Criminal District Attorney in Galveston County
Joe Shannon Jr., Criminal District Attorney in Tarrant County
Bill Turner, District Attorney in Brazos County
Craig Watkins, Criminal District Attorney in Dallas County
Edward “Chip” Wilkinson, Assistant Criminal District Attorney in Tarrant County

They took their work quite seriously, and as a result the association has clear guidance on how we can continue to serve you for the benefit of the profession.

    In the report entitled “Setting the Record Straight,” the subcommittee examined claims made in March by the Northern California Innocence Project that there exists in Texas widespread prosecutorial misconduct that has gone unaddressed. It was not the subcommittee’s original intention to devote significant time to such a response, but in light of the barrage of recent allegations and a few headline-making cases, it was certainly an important exercise. If you’d like the short answer to the question posed above by someone intimately involved with the work of the Innocence Project, you can go to the report itself, which is on the front page of the TDCAA website at You probably won’t be surprised by the results of the subcommittee’s work in this regard.
Perception or reality?

We all know that changes in our Penal Code and Code of Criminal Procedure can have a real impact over time on the conduct of the citizens that it governs. Just take a look at the law passed two sessions ago dubbed “Lillian’s Law.” This legislation amended Health and Safety Code §822.005 to create a new felony offense for negligently failing to secure a dog if that dog, as a result of its owner’s negligent conduct, escapes and causes serious bodily injury or death. That statute has now been used successfully a number of times and has recently been held constitutional by the Court of Criminal Appeals in Watson v. State, PD-0287-11 (Tex. Crim. App. June 27, 2012). Over time the teeth in this statute will, we hope, encourage more and more citizens to properly secure their animals, and as a result we will see a decline in dog attacks. A legislative success story to be sure.            

    But it appears the legislature can also make changes that affect perception just as much as reality. You will all recall that three sessions ago the Legislature enacted a bill purporting to create the “castle doctrine” in Texas. Now, as a prosecutor you know that Texas has had the castle doctrine in place for, oh, let’s say a century or so—we can’t recall an instance where someone who was justifiably protecting a home or family was indicted and prosecuted for defending the homestead. But perception being what it is, once the legislature passed the new law, folks rightfully assumed that something had changed in that regard.

    Enter George Zimmerman and Trayvon Martin. The media pounced on the story out of Florida where an unarmed teen (Martin) was shot and killed by a man (Zimmerman) who felt threatened, and all sorts of articles are printed talking about how the Castle Doctrine statutes passed around the country have meant more shootings. Just take a look at an article published in the Houston Chronicle, www.chron .com/news/houston-texas/article/ Killings-deemed-justified-are-on-the-rise-in-Texas-3676412.php, purporting to link an increase in justifiable homicides to the 2007 law. If you read closely, however, you will probably come to the conclusion that the cases cited in the article are ones that would not have resulted in criminal charges, castle doctrine or no castle doctrine.

    You, as a prosecutor, know that the changes made in 2007 have made it more difficult to prosecute murder cases, but you also know that those changes really didn’t expand defenses for those homicides that, prior to 2007, were considered justifiable. 

    Thus, I have come to believe that criminal justice legislation can have an impact in two ways: reality and perception. About two-thirds of Texas criminal laws belong to prosecutors—the practical, useful, and reality-based rules that you can use to do your job and thus over time impact crime. One-third of our criminal codes, however, can more properly be viewed as belonging to the state’s policymakers. These are the laws that may not actually be that useful or practical for those enforcing them, but they make a statement or set a tone that the state leaders feel is appropriate. And that is fair enough, as long as their one-third does not negatively impact the ability to do our jobs.

    So, has the castle doctrine law passed in 2007 damaged your ability to get justice in those homicide cases that merit prosecution? That would be my chief concern as a prosecutor. If not, then the debate will continue to play out on national television, but it may not have much impact on our business at the courthouse.       

Only 100 more years to go!

About 10 years ago we invited Victor Vieth, the now-director of the National Child Protection Training Center, to speak at an Elected Prosecutor Conference. The title of his topic seemed a little far-fetched—“Ending Child Abuse in 120 Years”—but Victor is an absolutely inspirational speaker who had people thinking that just maybe the subject of his speech was possible. 

    Victor has a vision for how, through training and policy, we could get a grip on child abuse. And prosecutors were ready to hear his ideas, given how the number of child abuse cases had exploded onto criminal dockets across the country. His theory is that it would take three generations, and each generation has a role to play. (You can read his 2004 paper on the subject at www.ndaa .org/pdf/unto_third_generation.pdf.) Victor ended his talk, as he did his paper, with an inspirational story of a Civil War era Minnesota regiment sent onto the field at Gettysburg, knowing that they could not win the battle themselves but that their selfless charge would provide an opportunity for victory for the soldiers who followed.

    It was with this speech still in my mind that I read a New York Times article on the TDCAA twitter feed, “Researchers See Decline in Child Sexual Abuse Rate.” (Find it here: 29/us/rate-of-child-sexual-abuse-on-the-decline.html?_r=1.) Researchers are quick to hedge, saying that the precise reasons for the decline are not clear and that most crime, not just child abuse, has gone down over the last 20 years, but they believe that greater public awareness, stepped-up prevention efforts, better training and education, specialized policing, the presence of child advocacy centers, the coordinated response to abuse, and prosecution of offenders should get credit—all things that Victor argued were fundamental to success in the future.

    By my clock a lot of the training, prevention, coordination, and prosecution efforts started in earnest in the early 1990s, so I am thinking we have about 100 years to go before Victor’s dream is realized. If he is right, and I am willing to believe he is, y’all are going to be remembered as the heroes who went into the breach knowing that your efforts today would be rewarded by the ultimate victory of those who follow.

    For more information about the National Child Protection Training Center, go to  

TDCAA online training

Many of you have taken advantage of our first web-based training offering, a one-hour course on Brady. (If you haven’t, check it out here: www We really enjoyed doing the program and have had very positive reviews about the content and delivery. TDCAA’s own Erik Nielsen and W. Clay Abbott did the heavy lifting on the project, and their work laid the foundation for more offerings in the future. The TDCAA Training Committee will be continuing to develop our web-based training, so stay tuned!    

Buck Files on tour

I want to take a moment to thank Buck Files, current State Bar President and criminal defense attorney in Tyler, for helping us develop our first web-based program. Buck really went out of the way to connect us with the State Bar’s resources for the program, and we could not have done this without him.

    And speaking of going out of the way, you may be seeing Buck soon at your courthouse.  Buck, as State Bar President, has decided the best way to spread the word about the Bar’s good works is in person. So he has launched a tour of Texas courthouses that, by the end of it, will probably include yours. Be sure to say hello and thank him for his efforts in including prosecutors in the Bar activities and services.

Congratulations, Manda!

In July, our Meeting Planner, Manda Helmick, married Bradley Herzing in Wisconsin. Congratulations to you both! Please note that she now goes by Manda Herzing, and her email address has changed too: It’s [email protected].

Welcome to Lauren Owens

Next time you call TDCAA for some legal assistance, you may have the good fortune of talking with our new Research Attorney, Lauren Owens, who started working in August. Lauren, a graduate of the University of Texas and Notre Dame Law School, actually began her legal career as an Assistant Criminal District Attorney in Tyler before she relocated to Austin. Welcome, Lauren!