By W. Clay Abbott
TDCAA DWI Resource Prosecutor in Austin
About a year ago I announced a new prosecutor training in trying impaired driving cases. We had not had been in court in a while. We had whole Misdemeanor Divisions who had not conducted a jury trial. We were a bit rusty. Funny what difference a year makes. Looks like there’s plenty of trial work now.
But changes keep coming. Despite all the bars being closed during the pandemic and shutdown, fatal impaired driving cases have increased. In fact, intoxication manslaughter charges have been piling up. To help with those, TDCAA will soon roll out a two-hour-plus online CLE course called “Prosecuting Intoxication Manslaughter Cases: A Panel Discussion.” I brought in three of the best vehicular crimes prosecutors in the country for a multi-hour chat about how to try these difficult cases, from crash to appeals. Lucky for me they are all from Texas, which is no real surprise: Jessica Frazier, an ACDA in Comal County; Andrew James, an ACDA in Dallas County; and Alison Baimbridge, an ADA in Fort Bend County. They all agreed to coach any prosecutor facing these cases for the first time—or the first time in a while—through the snares and pitfalls they will face. I think it will be a real help, and it’s help you can get at your desk or in your PJs, and because it’s online, you have all the time you need to rewind the video and take notes.
It supplements but does not replace TDCAA’s excellent Intoxication Manslaughter publication. As a matter of fact, I would recommend having that book open right beside you when you watch the new video. The online training also complements TDCAA’s Advanced Trial Advocacy Course, which will be held at the Baylor Law School in Waco in late July. The case study for the 2023 course will be an intoxication manslaughter. Please watch for that brochure in the mail (sometime in the spring of 2023) and apply if you think the program would help.
Help for officers too
While we are digging ourselves out, I have also noticed our police agencies are having to do the same. The great COVID resignation and retirement has hit every profession and business in America, but it is hard to argue it has hit any industry harder than law enforcement. First responder fatigue, current anti-police public sentiment, and numerous other factors have caused a flood of retirements and early departures. Agencies are starting to catch back up, and I’ve noticed while I’m on the road, my peace officer audiences are looking very young. I am used to most of the room being younger than me, but it is a bit shocking that most are younger than my son. (When I started all the officers seemed so old—my, how things change!) I bet you have noticed this too.
Departments that are short on officers have made changes. There are fewer dedicated DWI officers, and more officers must step up and fill that experience gap. DPS troopers, our rural mainstays for DWI arrests, have some extra demands of their time, and they are still spending time away from their regular stations. Office of Court Administration records show that DWI arrests continue to decline. But DWI expertise may be on an even greater decline. Prosecutors from every size of jurisdiction in every part of the state have let me know they need help getting new officers (and officers returning to DWI) up to speed.
To that end, I am offering a new course with my regional DWI training. It has been several years since I have done so. The new course will be offered to local prosecutors who apply to host one of the 24 schools I will teach between January and June 2023. It is named “Guarding Texas Highways: Revisiting Impaired Driving Investigation & Prosecution.” It is, like most of my other regional courses, designed to be attended by prosecutors and officers together. It will focus on four areas:
1) the traffic stop,
2) conversation with the suspect,
3) using and defending SFSTs, and
4) getting and presenting breath and blood evidence.
The course is a return to fundamentals. It is not, however, a basic course. While it should provide new officers and prosecutors with a basic framework, it will also provide experienced prosecutors and officers not only a refresher, but also a rethinking. I expect it to be good.
This course will be offered with the courses I have previously offered. The “Worst Case Scenario” program, which targets intoxication assault and manslaughter cases, will continue as an entry-level training for first responding officers, new officers, and experienced ones. It quickly presents the core investigative and prosecutorial functions necessary in the impaired driving crash. If crash investigations are the major need of a jurisdiction or area, this course may be the solution.
TDCAA will also continue to offer “Effective Courtroom Testimony.” Students would benefit greatly by attending this course more than once, and it is still in high demand in both smaller jurisdictions and big ones.
Finally, TDCAA’s “Rolling Stoned” course will be reworked as a second-generation version called “Investigating and Prosecuting the Drug-Impaired Driver.” This course will focus on marijuana, prescription drugs, and multi-substance cases. But unlike ARIDE, the 16-hour Advanced Roadside Impaired Driving Enforcement course taught by Drug Recognition Experts (DREs), it is meant as a joint presentation for both officers and prosecutors.
Getting officers and prosecutors together
While I hope the content of these courses makes a difference, they make a difference in another way: They bring officers and prosecutors into the same room to learn new ways about doing their difficult jobs, but also—equally importantly—they learn about each other. A couple of police training agencies have conducted surveys among officers and “discovered” that prosecutors don’t know what DREs are and never, ever prosecute DWI offenses. These “discoveries” are not true, but they make a real clear point: Police and prosecutors need to be in the same room. (Now if your office doesn’t know what a DRE is or never prosecutes DWIs, give me a call and let’s fix those things.)
The first tool I have for helping on both training content and establishing relationships is regional DWI training. I don’t teach one of these courses unless local prosecutors commit to host and attend. I do not take applications from law enforcement—I work for Texas prosecutors, and I don’t come to your jurisdiction to teach if you don’t ask me to. I also request that you tell me which course you want. I have been to 80 Texas counties. That is not bad, but if I have missed yours, let’s fix that. I can do about 24 programs in a given year, and that means that smaller offices must join forces to attend at a central location. If you have an interest, please email Kaylene [email protected], and Kaylene can send you a bunch more information.
The last assistance I can offer for helping new officers, making better DWI cases, and improving officer-prosecutor relationships is the final tip at my “Effective Courtroom Testimony” course: “Meet with your officer after trial.” This is the best advice I can give, and it is also the hardest.
Every prosecutor who has been at this a while has come back from a courtroom griping about an officer’s mistakes on the street or in the courtroom. But far too seldom does that prosecutor actually do anything to fix the problem. There is value in assessing what went wrong and how it could be corrected or improved, but if that information is never delivered to the officer who made those mistakes, blame for the next disaster belongs, in part, to the prosecutor who did nothing. Every person who has prosecuted more than a year or two has rejected a case for poor investigate technique, said nothing to the investigating officer, then been unjustifiably surprised to see a case down the road with the very same problems. I’ve done this too. Officer training is at its best during one-on-one conversations between officers and prosecutors. In addition, every such conversation makes it really clear a prosecutor cares. That too pays a career-long dividend for the officer and prosecutor.
Our lack of courage, tact, effort, and intelligence to correct mistakes does not “see that justice is done.” (Remember when I mentioned that this is the hardest advice I give? Now you see why.) This communication between prosecutors and officers must be intelligent. It must be made with preparation, skill, tact, humility, and empathy. Let’s face it, the communication should absolutely be both ways, but beginning to make this happen means we prosecutors quit doing the same thing over and over hoping for a different result. That is the definition of insanity.
We owe it to our officers. We owe it to the people of the state of Texas. We owe it to the prosecutors who will be replacing us. So help me get this difficult ball rolling in your county by holding a regional DWI school!