January-February 2014

Rules for mandatory Brady training

Rob Kepple

TDCAA Executive Director in Austin

As I reported in the September–October edition of The Texas Prosecutor journal, all attorneys prosecuting criminal cases of Class B misdemeanors or above will need one hour of mandatory training relating to the duty to disclose exculpatory and mitigating evidence (HB 1847, §41.111 of the Texas Government Code). The Court of Criminal Appeals has been charged with promulgating the rules for such training, and TDCAA has been tasked with developing and producing it. That is something we are happy to do, by the way, because we have been training on the duty to disclose under Brady and the relevant ethical rules for many years now. As well as producing the training, TDCAA will be the repository of the records of compliance. 
    The court has promulgated the rules as required, and combined with the statute, here is how it will work:
•    Everyone who prosecutes a criminal case other than a Class C misdemeanor must receive one hour of training in the duty to disclose exculpatory and mitigating evidence. This includes any special prosecutor or attorney pro tem who is appointed on even a single case, so be sure that if your office uses a special prosecutor, that person has the required training. Note that prosecutors who exclusively practice civil law are exempt from the training requirement.
•    All prosecutors handling criminal cases who were employed as of December 31, 2013, have one year (until December 31, 2014) to receive the training. 
•    All attorneys prosecuting criminal cases employed on or after January 1, 2014, have 180 days to complete the training. 
•    Once an attorney has completed the initial mandatory training, the attorney must take an additional course within four calendar years of that training and every four years thereafter. 
  TDCAA will keep records relating to the training and will provide the court with an annual report of attorneys completing the course by January 31 of the following year. We were happy to volunteer for that job because it gives us a chance to keep y’all notified when it is time to take the refresher course. 
    You will have plenty of opportunities to get the required training from TDCAA in the upcoming year. First, we just ran a pilot of the training in conjunction with the Elected Prosecutor Course in December, so our first graduates are good to go for four more years. You can expect to receive this mandatory training at most TDCAA conferences this year, at a series of summer regional conferences, and even by webinar. And of course we will offer the training at our two Prosecutor Trial Skills Courses in January and July, so all new prosecutors will be able to get the needed training within 180 days of taking a job at a prosecutor’s office.
    I want to thank Chip Wilkinson of the Tarrant County Criminal District Attorney’s Office for quickly developing training that meets the requirement of the statute. As you may know, Chip literally wrote the book on Brady for prosecutors (a book we sent for free to prosecutors’ offices in 2009), and his presentation and materials are substantive. You will see other speakers doing the training for TDCAA throughout the year, but it is good to have our “resident expert” on the team.   
    If you have any questions, suggestions or concerns, please just give me a call or send me an email at [email protected].   

Elected Prosecutor ­Conference and leadership
In December the elected prosecutors of Texas gathered in San Antonio. We had a record crowd of more than 170 prosecutors who took time out to compare notes, share ideas, and seek solutions to problems in their communities. Texas is unusual, as we now have 336 elected prosecutors. In this last year we had 78 new elected prosecutors take office, which tops the total number of elected prosecutors in most states (for instance, California has 58 elected district attorneys). With this many elected leaders in prosecution spread across the state, it is imperative that we gather and discuss the condition of the profession on a regular basis.
    Of course the new discovery law had folks preoccupied, but the other issue that took center stage was leadership. As you recall from our continued discussions centered on the 2012 TDCAA report, “Setting the Record Straight on Prosecutorial Misconduct,” effective leadership is a key ingredient to doing justice in the courthouse.  And we aren’t talking about leadership only for larger offices with lots of staff, because even the county or district attorney with little or no staff must demonstrate leadership in criminal justice issues in their communities. The sheriff, county judge, and police chief don’t work for you, but in the end an elected prosecutor must be able to lead the criminal justice community. 
    Although TDCAA has provided single-shot sessions on leadership in the past, the 2012 report called for our profession to develop a complete training curriculum on leadership that is developed solely for Texas prosecutors and the unique and disparate challenges they face. That training began in December at the Elected Prosecutor Conference and was based on a survey that elected prosecutors answered concerning their views, issues, and needs when it came to leadership and leadership training. It was led by Jo Ann Linzer, the chair of the TDCAA Training Committee and an ADA from Montgomery County; Jack Choate, TDCAA Training Director; and Michelle Mikesell, the management pro from a management group named Insperity. It was a good first step toward developing a leadership curriculum tailored to prosecutor offices that is valuable to small and large offices alike and can be appropriated into your own workplace. We learned a lot from the participation of the electeds, so keep an eye out as this project develops into a sustained training program for your office.

“Courtroom Playbook”
Recently a prosecutor sent me a copy of the “Courtroom Playbook.”  Some of you may have already come across someone armed with this document. It is 11 pages of, well, ways to make the judge mad. We have all heard of the Republic of Texas folks and others who claim that the laws and judiciary of Texas have no jurisdiction over them. This appears to be a version of that group’s handbook.
    It contains a bunch of scripted answers to courtroom questions designed to frustrate the proceedings. You should suspect someone is running a play from this booklet if the defendant, without benefit of counsel, says any of the following things (apparently in response to the prompt, which is in bold):
When is your birthday? “Your Honor, I can’t possibly tell you because I was too young to remember, and if I told you what my parents tell me, that would be here-say [sic], and therefore not admissible in court.”
Taking the defendant’s chair: “Can I take the chair with my unleinable [sic] rights in full effect?”
Do you understand the charges against you? “No, I do not comprehend”; “I can’t enter a plea until I get some questions answered”; or “Your Honor, a criminal action requires an injured party and a claim. Who is making the claim?”
If the judge says the State is the injured party: “Your Honor, I make a motion that this case be dismissed. We are in the wrong court. The State cannot be both the prosecution and the plaintiff. This case needs to be transferred to federal court or be dismissed.”
    My guess is that last little “A-ha! I got you judge!” comment is more likely to get the defendant transferred to jail for contempt of court than the case transferred to federal court.
Crime and punishment in Norway
You might recall that about this time last year TDCAA hosted a delegation of attorneys from the Japanese Bar Association. Their motive for the journey was to get a clearer picture of the Texas death penalty scheme, with an eye to find ways to reduce the use to the death penalty in Japan. (Japan’s death penalty laws are not too awfully different from those of Texas, and they had had way too many death penalty verdicts that year—three as I recall.)
    This fall we had a visit from some folks across the other pond—Norway to be exact. The purpose was similar: to gain insights into the Texas criminal justice system and the death penalty in particular. 
    The meeting was instructive for us in Texas. After all, we are getting pretty used to complaints by European countries about our criminal justice system and the death penalty in particular. It was interesting to get an insight into their view of crime and punishment. For instance, Norway, which is not too much bigger than Harris County, had a grand total of 34 murders in 2008. Its crime rate seems to be going up, but it is safe to say that until the mass murder of children by Anders Behring Breivik at a summer camp in 2011, the nation has not had to deal with an armed gunman with evil intent or the aftermath of that crime within the criminal justice context. Heck, their cops don’t carry guns or seem to have a need to. It is reported that their new maximum security prison cell looks a lot like a college dorm room, complete with a mini-fridge, sunny private suite, flat-screen TV, private bath, and privileges at the tanning beds, recording studio, and rock-climbing wall.  When someone commits a crime, the first instinct is to do some societal soul-searching for what they did wrong to cause this to happen. And so far for their culture, that all seems to have worked just fine. 
    So high crime rates can be very confusing for a small, homogeneous, and relatively affluent country. We can appreciate why it would be hard for Norwegians to view the death penalty as a reasoned moral response to crime. After all, they never had the crime rates of large metropolitan areas in the 1980s where it seemed that every weekend saw a couple innocent store clerks killed in robberies. They have never had a Texas magazine put the picture of a serial murderer on the front cover with the caption “Monster.”
    I will say this: After sharing the Texas experience with crime, they did appreciate why Texans are a little disturbed that the summer camp gunman will be in one of those “maximum security” facilities for 21 years. I am not sure our guests were entirely comfortable with the brevity of that sentence either, as they were quick to note that the courts can keep him longer at the end of his term by extending it in five-year increments. I don’t think our Norwegian friends will be looking to Texas for any criminal justice advice in the near future, but maybe they have a little better appreciation for our state.

Congratulations to Life Member Craig Hill
The entire TDCAA Board of Directors was thrilled in December to award Craig Hill, a former Nueces County District Attorney’s Investigator, with lifetime membership in TDCAA. This is indeed a rare honor; the list of life members is very short. But Craig, a regular dues-paying member of the association since 1977, has been a true leader of the Investigator Section of TDCAA. He is one of the folks who helped galvanize the investigators in prosecutor’s offices into a cohesive group of professionals dedicated to serving the people of Texas. His loyalty to his office and his fellow investigators is remarkable. I want to thank the entire Investigator Board, led by Dale Williford, for forwarding this nomination.   

Welcome to some new prosecutors
Since the last edition of The Texas Prosecutor went to print, we have had some changes in prosecutor leadership. I’d like to welcome Omar Collin, County Attorney in Kingsville; Ben Smith, District Attorney in Snyder; Courtney Tracey, Criminal District Attorney in Newton; and Thomas Duckworth, County Attorney pro tem in Kermit. Glad to have y’all in the profession!

And farewell to one of our finest
Tom Maness, the Criminal District Attorney in Beaumont, retired on December 31st after a distinguished career in criminal justice. Tom had been in the business for 42 years:  seven as an assistant prosecutor, eight as a county court-at-law judge, and 27 as the criminal district attorney. Tom is one of many folks who went into prosecution with the intention of learning to try a case so he could go into private practice, only to look back 42 years later at a distinguished career serving the public and fighting for justice. Tom has been a great leader of both our association and our profession. Thanks for your service, Tom—you will be missed.

Your new research attorney
Next time you call TDCAA for some legal help, you will probably be talking with our new research attorney, Jon English, pictured below. Jon is a recent graduate of St. Mary’s University School of Law. We’d like to think he got his taste for criminal law during his tenure as the Chief of Staff for Representative Debbie Riddle over four legislative sessions. During that time Jon’s boss passed numerous criminal justice bills, including “Jessica’s Law,” which created the continuous sexual abuse and super-aggravated sexual assault statutes. So next time you call the TDCAA research attorney and ask, “What the H-E– double–L was the Legislature thinking when they wrote that statute?!” Jon might actually know the answer!