The Texas Prosecutor, May-June 2018

SBOT Committee on Disciplinary Rules

As part of the Sunset review and re-authorization of the State Bar of Texas, the legislature created a new Committee on Disciplinary Rules and Referenda. The committee’s job is to consider and propose new disciplinary rules and amendments to existing rules. Read the entire statute at Tex. Gov’t Code Chapter 81, Subchapter E-1.   
    The State Bar and the Chief Justice of the Supreme Court were responsible for picking the members of this new committee. They made their picks—and there are no prosecutors on it. In my view that is a major problem: A proposed new rule impacting the duties of prosecutors could be unveiled way too late in the process for our profession to have meaningful input on the proposal.  We have asked that a prosecutor be allowed in the room and be available as a resource to the committee during the process.    
    As this edition of The Texas Prosecutor goes to press, we are waiting for clarification of the role prosecutor(s) can play here. We will do our best to keep you informed, but for the time being we encourage you to keep an eye on the work of this committee. It could impact your bar card.

Investigator Section by-law revision
As a member of a prosecutor office in Texas, you are well-represented by your leaders. They are constantly looking at improving how your association serves you and leading the profession to excellence.   
    I am proud to let you know that the Investigator Board is moving to amend its by-laws to better represent investigators around the state. First, it will expand the board terms from two to three years. It turns out that two years simply isn’t enough time or enough meetings to have an impact. Second, the current board will consider combining some regions with modest numbers of investigators while preserving the size of the board with at-large positions.  That way, the board can stay a truly representative force for the section.
    The board intends to iron out a plan this year  for consideration at next year’s Investigator School. If you have any questions or input, feel free to email me at [email protected], or call me at 512/474-2436. I’d be happy to talk with you about it!
Thanks to David Simon
Speaking of TDCAA investigators, I want to give a shout-out to David Simon, an investigator with the Galveston County CDA’s office. While we were at the Investigator School in Galveston this February, one of our attendees got sick and had to be taken to the hospital. By the time I got to the ER, David was already there, communicating with the sick person’s office (on the other side of the state) and with his family and friends. It was impressive to see someone take charge to be sure one of our own was safe and sound.
    But as I well know, that is so typical of a TDCAA investigator. You all are the most reliable people I have ever met. When there is a job to do, investigators get it done. Thanks, David, and thanks to you all.   

The Lord’s Work
I had the good fortune to prosecute at the Harris County DA’s Office in the 1980s. The plum assignment for anyone wanting to try cases was the 228th District Court with Presiding Judge Ted Poe. Judge Poe was known as a great prosecutor in his own right, and you knew you were in for a ride if you were assigned as the No. 2 in that court—which I was for a year. I was not a natural at trial, but after trying three aggravated robbery trials in one week (which I think the judge liked to do just to see if you could handle it), I hit my stride and never looked back. And as demanding as the judge (as a former prosecutor) could be on prosecutors, we never took it personally when he grinned and suppressed all of our evidence.
    That’s because if you were a prosecutor back then you undoubtedly went to TDCAA’s Prosecutor Trial Skills Course and heard Judge Poe’s talk on “The Lord’s Work.” There has never been a finer inspirational speech for prosecutors, and it was the final talk of the week that sent young prosecutors back to their courts energized to fight for victims of crime. Yes, Judge Poe could be hard on us, but we knew that was because we had a sacred duty to discharge and there was no room for shoddy work. He had convinced us of that as a “baby” prosecutor.
    I had the pleasure of recently visiting with Judge Poe, now a long-time Congressman from Texas’s Second District, when I was in Washington,  D.C. I had no problem finding his office in the massive federal building because the Gonzales “Come and Take It” battle flag hangs in the window. I’m happy to report that Judge Poe is retiring at the end of the year after a great career in Washington, and he is coming home to Texas. My guess is he won’t be sitting on a bench any time in the near future, but I sure wouldn’t mind hearing “The Lord’s Work” again!  Thanks, Judge, for what you have done for me and our profession.

Andy Schuvalov
I am saddened to tell you of the passing of a great friend of the profession, Andy Shuvalov. Many of you never met Andy. He was a former CDA in Deaf Smith County, and most notably, the Director of the Texas Prosecutor Council, which was a state agency abolished (one of the few) in 1985.   
    The council was established in 1977 after a district attorney was disbarred but refused to resign from office. The Legislature responded to that difficulty by creating a state agency to both discipline and train prosecutors. The council, made up of prosecutors and laypersons, sponsored prosecutor training and assistance and actively reviewed complaints about prosecutor conduct.  The council doled out reprimands and filed removal actions when warranted. In its last year of operation, for instance, the council reviewed 119 complaints, dismissed 75, issued three reprimands, and filed one removal lawsuit (which resulted in a resignation).
    Andy had a tough job. Over time, people began to appreciate that the dual role of both a “helper” and a “hammer” set the agency up for irreconcilable conflicts. With the emergence of TDCAA as prosecutor training outfit and the State Bar as a disciplinary organization, the council did not survive sunset review in 1985.
    Until his passing, Andy was nonetheless proud of his work in advancing the profession of prosecution, and he had the right to be. Texas was well-served by his dedication to our profession.

Congratulations to Joe Brown  
Joe Brown, the former Grayson County Criminal District Attorney, was sworn in in late February as the United States Attorney for the Eastern District of Texas. Joe had been the CDA in Sherman for 17 years, he is a past TDCAA board member, and he served on the Texas Juvenile Justice Board. We have long enjoyed Joe’s strong leadership and support. Something tells me that will continue in his new role!    

It was the mayors—who knew?
There is still plenty of discussion about exactly who and what gets the credit for the drop in crime rates since the mid-1990s. Most people acknowledge that longer sentences for violent offenders plays a part in it; others talk of everything from better supervision and rehabilitation programs to the abolition of lead paint in nurseries.   
    But this opening sentence in the announcement of yet another “smart on crime” group caught my attention: “National crime statistics have been trending downward since 1991, due in large part to the efforts of mayors and city leaders.” Now that is a new one.
    Notwithstanding the eyebrow-raising claim to the past success in reducing crime rates, the newly formed Mayors for Smart on Crime may be onto something. After all, for the longest time people talked about how solving crime necessitated addressing its root causes. It seems no one has mentioned that in a long time—instead, people have focused on criminal justice (what happens after the crime has been committed) and more recently on prosecutors. Undoubtedly there is much prosecutors, as leaders in the criminal justice arena, can do, but when mayors and local leaders also talk about broader issues, such as mental health and investment in the community, my guess is our profession is all in.   
    For more on the new group, go to https://www.smartoncrime.us.