May-June 2014

Mandatory Brady training update

Rob Kepple

TDCAA Executive Director in Austin

In the January-February edition of The Texas Prosecutor, I discussed the mandatory Brady training requirement that went into effect January 1, 2014. In short, everyone who was a prosecutor before that date has one year to get the one-hour training. If you became a prosecutor on or after January 1, 2014, you must take the course within 180 days. TDCAA has been tasked with providing the course and keeping records relating to compliance.
    You will continue to have plenty of opportunities to attend the class this year. We have incorporated the one-hour Brady training into every course we put on (see a list of them below). In addition, we have scheduled a series of free, three-hour ethics regionals that incorporate the mandatory training (see a schedule of those below too). Finally, TDCAA is producing a free, one-hour webinar that will provide Brady credit as well as one hour of MCLE. That should be available this summer through the TDCAA website.
    One note to the few prosecutors who may have started between January 1 and January 12, 2014, and who did not attend our Prosecutor Trial Skills Course in January (where the Brady training was offered): By our calculations, if you wait until the July Prosecutor Trial Skills Course to get the Brady training, you will be a few days late, so you’ll need to get that hour of credit before then. You can always attend an ethics regional or even pick up the hour you need at another one of our seminars.

TDCAA ­seminars with Brady training

Intoxication Manslaughter, April 28–May 2, at the Convention ­Center in Galveston; registration and hotel information now available at
Civil Law Seminar, May 28–30, at the San Luis Resort in Galveston; registration and hotel information now available at training.
Financial “White Collar” Crimes, June 18–20, at the Sheraton Gunter Hotel in San Antonio; ­registration and hotel information now available at training.
Prosecutor Trial Skills Course, July 13–18, at the Radisson Town Lake in Austin.
Annual Criminal & Civil Law Update, September 17–19, at the Convention Centre in South Padre.
Elected Prosecutor Conference, December 3–5, at the Westin Domain in Austin.

TDCAA Brady & Ethics Regional Seminars

Training in all cities goes from 1:30 to 5:00 p.m. and provides three hours of MCLE credit, 1 hour of which satisfies the legislatively mandated Brady ­training requirement. The cost is free for everyone in prosecutor’s offices, special prosecutors, and prosecutors pro tem. Registration is online only at

Thursday, June 5    Houston    Jury Assembly Room, 1201 Franklin St. (Harris County Courthouse)
Wednesday, June 11    Amarillo    Central Jury Room, 501 S. Fillmore (Potter County Courthouse)
Friday, June 13    Dallas    Central Jury Room, 133 N. Riverfront, 2nd floor (Frank Crowley Criminal Courts Building)
Friday, June 20    San Antonio    Sheraton Gunter Hotel, 205 E. Houston St., 2nd floor ballroom (hotel parking is at individual expense)
Friday, July 18    Austin    Radisson Town Lake Hotel, 111 Cesar Chavez, 2nd floor ballroom (garage parking is complimentary to our group)
Wednesday, August 27    Lubbock    2nd floor auditorium, 916 Main St. (connected to the courthouse)

Lone Star ­Prosecutor Awards
At 2013’s Annual Criminal and Civil Law Update, the TDCAA Nominations Committee and the Board of Directors gave the Lone Star Prosecutor Award to the Kaufman County Criminal District Attorney’s Office. And by that, I mean each individual member of that office who continued to go to work and do their jobs during those dark days after the murders of prosecutors Mark Hasse and Mike McLelland and Mike’s wife, Cynthia, and before the suspects were captured. That was a tough time, and it was great to be able to recognize those individuals for such dedication to serving their community.
     We presented Erleigh Wiley, the Kaufman County CDA, with the office award at the 2013 Annual. But I recently had the honor of traveling to the Kaufman office and presenting the entire staff with their own individual Lone Star Prosecutor Awards, along with a pizza lunch. (A gorgeous carved stone award is nice and all, but nothing says appreciation like pizza!) Thanks to all of you for demonstrating what it means to work at a Texas prosecutor’s office.

Weekly case summaries
All members of a prosecutor’s office are entitled to receive the weekly case summaries we send out by email (and later post on the TDCAA website) each Friday. (If you have not already, go to case_summaries/subscribe.php and sign up to start receiving them. Be sure to register with your county email address so that we can identify you as eligible to receive these emails.)
    Jon English, TDCAA’s Research Attorney, does a great job of summarizing each week’s offerings from our appellate courts and explaining each decision. Even more useful is the insightful, educational, and sometimes entertaining commentaries by experienced prosecutors who can tell you why case is important. The big picture, as it were.
    A great example is the commentary recently offered about Easley v. State, a Court of Criminal Appeals opinion issued March 12, 2014. The issue was whether a trial court had committed a per se constitutional violation by prohibiting a defense attorney from asking a proper question on voir dire. You could see where that could go: If the defense prevailed, one bad ruling by a trial court at voir dire and the rest of a trial would be a waste of time. The court fortunately ruled that the error was subject to a harm analysis, to which many of you probably responded, “Well, duh.”
    Our commentator was able to provide a remarkable history lesson and remind us that not long ago, reversals for pretty lame reasons were commonplace. (How many of you remember the reversal of a capital case because the judge did the jury shuffle as requested by the defense, but shuffled twice?) The history lesson bears reprinting here:
    “Once upon a time there were several forms of error, all of them bad: fundamental error, error incapable of harm analysis, and error that was harmful unless shown harmless beyond a reasonable doubt. Appellate courts would presume harm. Cases had to be tried and tried again, and the people despaired of justice. But then some judges took pause and said to themselves, ‘This is silly; these things would make no difference.’ New judges arrived, new rules were made, and new decisions slew the precedents of old, one by one. And now, another misbegotten line of authority is put to the sword. Errors in voir dire are not per se constitutional error. And we all lived happily ever after.”
    How can you resist such insight week after week? Head to our website to sign up for these weekly emails today.

A really rural forum about domestic violence
One of the challenges our profession faces is the diversity in size of our offices. So many Texas prosecutor offices are solo shops, while other offices have divisions devoted to specific types of offenses. It is natural that our training would be directed by those prosecutors who are experts in a category of crime, but are we missing the creative prosecution solutions happening everyday in rural Texas?
    Last year the Texas Council on Family Violence (TCFV) partnered with TDCAA to host a domestic violence summit of Texas prosecutors, and the usual very diverse mix of urban and rural offices attended. We got a lot of great ideas, but there was an undercurrent from the ultra-rural jurisdictions that was loud and clear:  “We don’t have the resources to do any of what you’re suggesting.”
    Suspecting that a lot of good work in domestic violence was going on in very rural communities, we did something we have never done before; we hosted another domestic violence summit with only rural prosecutors in the room. And by that, I mean that the only people allowed at this summit were those prosecutors who could not order someone else to do the work—people in solo offices or with very few staff attorneys.
    As it turns out, rural prosecutors have some advantages over their urban counterparts. You may be a single prosecutor, but you know every cop and sheriff’s deputy by name. Some of the prosecutors in the room literally knew everyone in the community. They know about the defendants, and they know about the victims. They often know the entire defense bar and have developed good working relationships with them.
    Now there are certainly some problems—in rural communities, victims are much more isolated and farther away from a safe haven. As was explained by one prosecutor, in her jurisdiction it seems like the victim is always living in a trailer on the property of the abuser’s family, and that causes some real problems.
    We didn’t solve all of the problems of prosecuting domestic violence in a rural community, but getting a group of exclusively rural prosecutors together really worked to reveal rural solutions. This is something that we will be looking to do again.
The passing of Pruitt
His name was actually George Dwayne Pruitt, but for as long as I can remember he was just Pruitt. Pruitt, a former Terry County Attorney, passed away after a brief illness in March. I can tell you that our profession will miss a fine leader and a real Texas character. Pruitt was president of TDCAA in 1999, and he was recognized as the State Bar Criminal Justice Section Prosecutor of the Year in 2002. He had a fine sense of justice; more than one of the ethics scenarios we regularly teach come from cases and situations he had worked through with us. Even after he retired from public service, we’d see him at the occasional Annual Update on the coast. But we hadn’t seen Pruitt around as much lately; he was fond of disappearing into New Mexico on his horse for weeks on end.
    Pruitt was known for telling stories with colorful language, and words like “gotdammit” and “sumsabitches” never sounded wrong in his tales. At his memorial, I am told that one of his relatives believed that when Pruitt reached the pearly gates and stood in front of St. Peter, he was likely to have looked past the gate, seen his wife Carol, and shouted out, “Gotdamn, it’s good to see you!” And St. Peter, knowing Pruitt, waved him on through with a smile.

Please welcome three new county attorneys to the family. Rebecca Lange was recently appointed as the County Attorney in Llano County, Heather Stebbins has been appointed as the County Attorney in Kerr County, and Rebekah Whitworth has been appointed as the County Attorney in Mason County. We look forward to seeing you all soon at TDCAA seminars!

Primary results
This being a gubernatorial election cycle, most criminal district attorneys races are on tap this year. Here are the results of contested primaries for prosecutors’ seats, with incumbents noted by an asterisk. (We are not listing unopposed candidates or candidates appointed due to vacancies, etc.)
    These primary winners have no opponents in the fall:
•    Anderson County CDA: Allyson Mitchell (R) (defeated Doug Lowe*).
•    Caldwell County CDA: Fred Weber (D) (Trey Hicks* retiring).
•    Galveston County CDA: Jack Roady* (R) re-elected.
•    Hays County CDA:    Wes Mau (R) (Sherri Tibbe* retiring).
•    Hidalgo County CDA: Judge Ricardo Rodriguez (D) (defeated Rene Guerra*).
•    Polk County CDA: Lee Hon* (R) re-elected.
•    Smith County CDA:     Matt Bingham* (R) re-elected.
•    Tarrant County CDA: Judge Sharen Wilson (R) (Joe Shannon* retiring).
•    Tyler County CDA: Lou Ann Cloy (R) (Joe Smith* retiring).
•    452nd DA (Kimble, etc.): Tanya Ahlschwede* (R) (elected following appointment).