January-February 2012

John R. Justice Loan Forgiveness, Round 2

Rob Kepple

TDCAA Executive Director in Austin

The best news about the John R. Justice Student Loan Forgiveness program may be summed up in a famous line by John Clease in Monty Python and the Holy Grail: “I’m not dead yet!” Federal funding for the program has been preserved, but it has been reduced from $10 million to $4 million for 2012. In these difficult times the priority was to keep the program in place in hopes of a better future.

    I’d like to thank Lesa Moller and all of the folks at the Texas Higher Education Coordinating Board, who have done a terrific job in getting the program up and running. In response to the drastic cut in the program, she keenly observed that under the current program rules that guarantee every applicant jurisdiction a minimum of $100,000, large states like Texas would take the biggest hits. She noted in a recent memo on the subject that the territory of the North Mariana Islands, whose population is 0.02 percent of the total population under the grant program, will receive an amount equal to 34 percent of the Texas award—the state with 8 percent of the population. If you’d like some information on how to apply for a prosecutor job in the North Mariana Islands, you will need to go through the Department of Justice at www.justice.gov/usao/ career.html.

Forensic Science ­Commission gets new members

Governor Perry has made some new appointments to the Texas Forensic Science Commission. Congratulations to Richard Alpert, ACDA in Tarrant County, who was appointed as the prosecutor representative to serve through September 2013. The governor also appointed Vincent Di Maio, a forensic pathology consultant and former chief medical examiner from San Antonio, Robert “Bobby” Lerma, a criminal defense attorney from Brownsville, and Nizam Peerwani, the chief medical examiner for Tarrant, Denton, Johnson, and Parker Counties.

Journalist “shield” ­protects  child abuser from prosecution

This goes firmly in the “sour grapes” or “told you so” category, but many of you probably had the same reaction to ESPN’s disclosure that it had tape-recorded evidence of suspected child abuse by a Syracuse University basketball coach Bernie Fine almost 10 years ago but never turned it over to or otherwise alerted the police. The tape is of a conversation with Fine’s wife, who apparently acknowledges the suspected abuse. It was certainly information worthy of more investigation, but it was never given to authorities, and any state prosecution is barred by New York’s statute of limitations laws.

    The reason: Journalists have no duty to help the police, and citizens wouldn’t tell journalists about certain sensitive matters if they thought the police may find out. So evidence of a horrible crime sits, neither offered to the public in the daily fish-wrap nor shared with the people charged with the duty of protecting children from abuse.

    Now you won’t find the national media outlets beating themselves up over this ethical or moral lapse, but some people have expressed their dismay at ESPN’s conduct, especially in light of the institutional problems unearthed at Penn State. In the end, who should get the information:   people who talk about the crimes or people who have the duty to do something about the crime? How about both? We know that Texas has a relatively new journalist shield law, so perhaps the media here will take a different view of the issue than ESPN did. For some insight into the problem, check out these two articles:  online.wsj.com/article/APae9 da9ad67214182aadfc8dd95177a22.html and www.sportsgrid.com/ncaa-basketball/dan-patrick-espn-bernie-fine.

The Troy Davis “doubt campaign”

We don’t normally talk much about capital cases out of other states, but most of us saw the media blitz in September over the pending execution of Troy Davis in Georgia. If you watched the countless reports of recantations and flawed physical evidence, you must have begun to wonder how our prosecutor friends in Georgia could justify seeking execution. It being a case in litigation, the Georgia prosecutors stayed true to their ethical duties to refrain from litigation by press conference.

    But following the execution, lead prosecutor Spencer Lawton issued a detailed rebuttal of the “Troy Davis Is Innocent” media blitz. It is worth a read. Mr. Lawton allows that he is no fan of the death penalty himself, but when it’s applied to the Troy Davis facts, such a penalty is fair. You can find Mr. Lawton’s piece at www.dailyreport-online.com/Editorial/News/ singleEdit .asp?l=101389509041.

Electronic PC and CCP

They are here! For those of you who prefer your law served in an “app” world, you will now find the TDCAA Penal Code and Code of Criminal Procedure available as a Kindle, Nook, or an iPad app. And in the electronic format, the books incorporate both the vital annotations and the strikethrough and underline format that clearly shows the most recent legislative changes. Just go to Amazon, Barnes and Noble, or Apple to find your favorite criminal law author, Diane Beckham!

A blast from a past drug war

I recently had an inquiry from a prosecutor who was working with a police officer on a drug possession case. The officer was seeking to charge the defendant not with possession but with the third-degree felony of failure to pay the proper tax on the drugs. (You will find that statute in Chapter 159 of the Tax Code.) The idea of charging under that section will send some of you back in time, as will the photographs of the Drug Tax Stamps, below. The initial concept in the 1990s was that we would hit the drug dealers not only with pen time and forfeitures but with a tax crime as well.

    Only one little hitch in the plan: What if the drug dealer actually paid some or all of the tax and stuck the tax stamp on his bag of merchandise? And worse, what if the guy got arrested for possession, and then paid his tax? The Court of Criminal Appeals answered that question relatively quickly: Even a partial payment of the tax barred a subsequent punishment for the possession of the illegal substance. (See Stennett v. State, 941 S.W.2d 914 (Tex. Crim. App. 1996).) The comptroller quickly shut the tax stamp program down, but the statutes remain on the books.

    It’s great to have an enterprising officer who is looking for different ways to approach a case, but think twice if your officer brings you one of these.

Welcome new staffers!

Welcome to two new additions to the TDCAA Staff. The first is John McMillin, our new research attorney. (He replaces Seth Howards, now an assistant DA in El Paso County.) John is a recent graduate of the Texas Tech Law School. Many of you may recall John’s friendly voice from the past when you ordered your books from TDCAA. John served a tour of duty as our Sales Manager before going to law school. Apparently, y’all treated him well enough that he wanted to be just like you when he graduated! Welcome back, John.

      Second, please welcome Kaylene Braden when you next call our offices. Kaylene is our new receptionist. She takes over for Naomi Williams, who left to go to school full-time in an effort to finish her master’s degree in social work. As with John, you may recognize Kaylene’s voice when you call, because she was a member of our Key Personnel Section when she worked for the Matagorda County Attorney’s Office. We are glad you are here!