Executive Director's Column
July-August 2009

Legislative Updates on the way!

The Legislative Session is a busy time at the association. Keeping up with the huge number of proposals that would impact criminal justice can at times be overwhelming. But the fun is only beginning when the session ends because that’s when, in the span of a month and a half, Diane Beckham and her publications team will write, edit, and ship out the best Penal Code and Code of Criminal Procedure in the business. In addition, Shannon Edmonds will somehow find the energy to write his terrific Legislative Update book, compile a PowerPoint presentation to tell you about the 81st Legislative Session, and head out for our whirlwind tour of Texas.

On page 16 of this journal is the list of locations for this year’s Legislative Updates. This is the real pay-off for us at TDCAA because we enjoy the opportunity to come to your neck of the woods and visit with you. And it promises to be a big show this year:  From the journalist shield law to new laws on mandatory blood draws, there are plenty of things that will affect your daily practice. So register online today and bring your popcorn!

DIVO: Defense Initiated Victim Outrage?

In quick succession last month, I received three complaints from victims’ advocates, victim witness coordinators, and prosecutors about something called DIVO, which stands for Defense Initiated Victim Outreach. The complaints were that their victims and survivors in some pretty horrendous cases had been further traumatized by contacts from people identifying themselves as victim advocates … working for the defense team.

In the first case, a horrified family member whose loved one was a victim in a capital murder received a letter from a defense attorney saying that she would be contacted by a “DIVO,” who is not a member of the defense team. The “DIVO” then sent a letter explaining that she had been hired by the defense team to be a “liaison” to the victim and was being paid by the court. The stated purpose: to be responsive to questions or concerns that the survivor may have that can most easily be addressed by the defense. Clear as mud so far.

The second letter I recently read was to the surviving family members in another capital murder case. Same stuff about meeting the victims’ “unique” needs, but this DIVO went further and attached a letter that had been written by some other victims as a way of providing a testimonial about the DIVO’s services. Significantly, this attached letter contained the following sentence: “Eventually my family and I decided on our own—with no pressure from the DIVO—that we did not want to suffer through a trial, but we also wanted assurance that the murderer would be in prison forever.”

The whole concept that the defense team should have direct contact with crime victims was a little confusing to me, so the first thing I did was a little Internet research. Indeed, the National Association of Criminal Defense Lawyers appears to have initiated this effort to get involved more directly with victims of crime. Find a basic description of the program at www.criminaljustice .org (search for DIVO). The program’s stated purpose is to “reduce the trauma to victim-survivors that often results from the adversarial and technical nature of the legal process.” My first response is, “Like, what—the defense team wants an ‘advocate’ to apologize to the victim’s family when the defense attorney trashes their dead loved one in court to get the defendant off?”

Furthermore, it appears to me that there may be a link between this DIVO concept and defense strategy in death penalty cases. Read this passage from a defense attorney website:

DIVO should not be avoided solely due to an unrealistic and unsubstantiated fear of the victim. While the needs of the victim-survivors should be addressed regardless of benefit to the defense, the fact remains that few defense attorneys are going to engage in a process that has no advantage to their client or case. Fortunately, there is a benefit to the defense as Pamela Blume Leonard poignantly describes: “A defense attorney who compassionately acknowledges the terrible loss victims have suffered and stands with them in their quest for restoration and restitution, has far greater credibility when asking for the life of his client to be spared.”

We would expect a defense attorney to act only in the best interest of his client—that is his moral and ethical duty. So it is no wonder that we should be suspicious of a victim advocate hired by and aligned with the defense team.

Finally, you might want to check out this site on “restorative justice” that touts the DIVO program: www.gcrj.org/Site/DIVO .html. One passage at the end of that page concerns me a little: “To guard against misuse or unintended consequences, DIVO practice should be regularly evaluated and victim-survivors and/or victim advocates should be on oversight committees.” I am quite curious about the misuses and unintended consequences that the DIVO proponents are worried about, and I would sure like to know which victim advocates are performing oversight functions in Texas.

Here is what else I recently found out. The Federal Bureau of Justice Assistance has funded pilot programs for DIVO in three states: Georgia, Louisiana, and Texas. A number of folks are jumping into the DIVO business without much training or guidance from the BJA-funded efforts, so a careful rollout of the program with the proper ethical and legal boundaries in place may not be happening just yet. Although there are folks with the best interests of victims running the BJA show, the opportunity for mischief abounds at this point.  

Please keep me informed of your experiences with the new DIVO program in Texas. We need to know what is happening out there. We have a lot of folks looking at it with a mind to preparing a more formal response from our victim-witness professionals.

An update on Richard Wintory

Many of you have had the good fortune to hear a presentation at one of our seminars by Richard Wintory, an Assistant United States Attorney in Tucson and former assistant DA in Oklahoma City. Richard is pretty much an honorary Texan and normally refers to Texas as “Prosecutor Disneyland.” To show you how dedicated Richard is to our state and to the profession, I’ll tell you that a few years back he was a speaker at our Advanced Trial Skills Course in Waco when his flight from Tucson was cancelled due to bad storms. Undaunted, Richard—on his own—booked a late night flight to Dallas, rented a car, and drove through the storms to Waco in time for his talk. He is a dedicated fellow!
Not long ago Richard fell from a ladder and sustained a terrible head injury. It looks like he is on his way to a full recovery, but the road will be long and he will be struggling to support his young child and disabled wife. Not a good circumstance. So when the call went out that Richard needed help, y’all came through in a big, big way. Barry Macha, TDCAA’s President, put out a request seeking contributions; we hoped to collect $1,000 to send to Richard to defray his bills once he’s home from the hospital. But Texas prosecutors, like Richard, are a dedicated bunch:  Y’all responded by sending in over $4,500 to Richard’s support fund. I can pass along to you today the appreciation and amazement of the folks in Arizona for your generosity.

Me, I see this only as enlightened self-interest. We need Richard Wintory back in the fight as soon as possible!     

Laugh of the day

The TDCAA User Forums is a great place to ask a legal question, read discussions on cutting-edge topics, and share your “best of” topics, such as how a frog can be a deadly weapon or what a capital murderer’s last words were.

It is also a spot to share courtroom stories. Take this one from Robert DuBoise of the Parker County District Attorney’s Office:
“In one of our district courts, the judge usually has the court coordinator sit immediately to his right (in the witness box) to assist him with the files and docket. Today, a defendant was going to have a bond hearing. Before the hearing, the coordinator moved from the witness box into the jury box so as not to interfere with the witnesses. The hearing began, and several witnesses were called. Halfway through, the defendant leaned over and asked his counsel:

“How come I only get one juror?”

His defense counsel’s response: “Because the other 11 have already decided you’re guilty.” ✤