May-June 2016

Schultz v. The State Bar

Rob Kepple

TDCAA Executive Director in Austin

In the last edition of The Texas Prosecutor journal, you read Melissa Hervey’s cover story entitled, “Just disclose it.” In it, Melissa, an assistant district attorney in Harris County, does a great job of walking us through the Schultz v. Commission for Lawyer Discipline of the State Bar of Texas opinion, a must-read for every Texas prosecutor.
    In this edition of the journal, we offer additional thoughts on the implications of the Schultz opinion for Texas prosecutors (see The President’s Column on page 7 and the Q&A on page 40) and hope that you find the insights helpful.
    I am reminded of something one of our most experienced district attorneys, Jaime Esparza, the district attorney in El Paso County, once said when he described the job of a prosecutor: “Our job is as simple as right and wrong—and also that complicated.” We go into prosecution with good intentions and a dedication to justice, but it can get complicated. In the big picture, our profession continues to demonstrate dedication to ethical conduct and the search for the truth, and with that spirit we will continue to learn and move forward.
    I do have one question for Texas prosecutors as we go from here. Would it help if Texas had reciprocal discovery, like virtually every other state and the feds? If the defense bar complains of the non-disclosure of those facts particular to a defense they will raise, such as alibi, would it help prosecutors in discharging our duties under Brady, the Michael Morton Act, and Rule 3.09 of the Texas Professional Rules of Disciplinary Conduct to have notice of that defense? Email me with your thoughts at [email protected]

Never give up!
This lesson in tenacity and Criminal Procedure 101 comes to us from Walker County Assistant Criminal District Attorneys Shanice Newton and Christina Lee, who recently tried a defendant for terroristic threat. The defendant had made a serious threat with a firearm (apparently against some drunk cousins, and it involved pornography on a cell phone … yeah, sounds like a juicy story). When all was said and done the jury foreman announced the verdict: not guilty.
    After the verdict was read, the judge asked the prosecutors if they would like to poll the jury. That’s not very common, but Newton said yes. When asked if that was the verdict of the individual jurors, Juror No. 6 shocked everyone in the courtroom when he announced, “No!” The judge sent the jury back to continue deliberations, and when jurors sent out a note a couple of hours later, asking for a clean verdict sheet, people were stunned. Yes, the jury had flipped the verdict to guilty!
    The moral of the story? When that verdict comes in, don’t fear asking the jurors just how stuck they are on “not guilty!”
First civil commitment case outside of MoCo
On September 1, 2015, the duty to seek the civil commitment of sexually violent predators (SVPs) shifted from the Special Prosecution Unit (the SPU, based in Huntsville) and a particular district court in Montgomery County, to local felony prosecutors in the jurisdiction where the predator’s most recent conviction for a sexually violent offense occurred. These cases represent a short-term training and staffing challenge for prosecutor offices as we learn how to handle them, as well as a long-term resource problem as we look for funds to pay for the attorneys and expert witnesses.
    From what we can tell, offices have been doing a good job of preparing for this new type of civil case, and the Special Prosecution Unit, guided by Executive Director Jack Choate (formerly TDCAA’s training director) has pulled out all the stops to offer assistance and guidance as the baton is handed off. (In fact, Erin Faseler, the Civil Division Chief for the Special Prosecution Unit and an expert in these civil commitment cases, wrote a primer on how to try them in this issue—check it out on the front cover.)
    We’ve also gotten news of the first such commitment case tried locally (at least the first we’ve heard of): Congratulations go to the Tarrant County Criminal District Attorney’s Office, which successfully sought the civil commitment of a sexually violent predator who was set to return to Tarrant County on parole without the treatment and supervision the commitment program offers. Tarrant County Assistant Criminal District Attorney Bill Vassar joined with SPU prosecutor Marc Gault to prove that the SVP suffered from a behavioral abnormality that justified his civil commitment. Under the terms of his commitment, this person will go to a treatment facility in Littlefield to begin the program. Congratulations, Bill and Mark, for showing how this hand-off to local prosecutors will work.
Tarrant County’s Annual Report
Many of you may have already seen the 2015 Annual Report issued by the Tarrant County Criminal District Attorney’s Office (pictured below). If not, you can view it at Publishing such a report is really a terrific way to educate the public about what an office does and what the staff accomplished the year before. I particularly like the section that highlights the high-profile prosecutions from 2015, as well as the simple and elegant mission statement on the back cover: “The mission of the Office of the Tarrant County Criminal District Attorney is to enhance public safety through vigorous enforcement of criminal and civil laws in an ethical, honest, and just manner.” Judge Sharen Wilson, the elected CDA, tells us the report was produced by Samantha Jordan, the office’s public information officer—a job well done!

Crime and Consequences blog
In the last Texas Prosecutor, I wrote about our criminal justice system and even showed some graphics to support my argument that the system is not “broken.” Finding those types of resources can be catch-as-catch-can, but there are a couple places we can find them on a regular basis. The first is TDCAA’s twitter feed (@TDCAA, run by our Director of Governmental Relations Shannon Edmonds). If you do not follow his feed, now is a good time to hop on board.
    Another good blog to read is Crime and Consequences at www As with most blogs, there is some random stuff that might not interest everybody, but overall it appears to be a consistent source of articles, studies, and information that balances out some of the “end mass incarceration” viewpoints in the general media and advocacy blogs. For instance, something you may not have heard much about yet: the California assistant prosecutors’ association view that Prop 47, that state’s penalty “realignment” (read: decriminalization) from a couple years, ago, has spurred a huge increase in crime. Take a look here: .html.

“Well, don’t use the ­camera for that.”
Many of our police departments are grappling with policies regarding the technology and use of body cameras, and prosecutor offices are dealing with all of the video those cameras produce. It has been interesting to watch various public advocacy and civil rights groups urge the adoption of the technology to document bad police behavior and at the same time argue among themselves about how the cameras will necessarily infringe on citizens’ privacy interests.
    And now another twist in the saga: Peace officers have come to appreciate the protection cameras can afford when they are accused of misconduct. Does it come as any surprise to a defense attorney, who is trying to question a cop in the hallway of his local courthouse, that the officer’s body camera is recording the whole incident? That is just what happened in Florida recently, and you can read all about the screams and howls of the defense bar here: nationworld/national/article68531277.html. But in my view, if you give a cop a camera, he’s gonna use it.

TDCAA staff panics
When you read my column on TDCAF News in this issue, you will learn about our ground-breaking initiative to create the Texas Prosecutor Management Institute. This new training curriculum is under development thanks to funding from the Foundation and with the help of Bob Newhouse, a Houston-based management specialist who’s also a lawyer who once worked in the oilfield industry.
    One of the insights I took away from our inaugural management training in early March is that everyone brings a different set of skills to an office. If everyone is encouraged to bring his or her own strengths to the table, just about every problem can be solved and every job done right. The manager’s duty is to recognize people’s strengths, honor them, and let your folks use those strengths for the benefit of the team.
    So how can you get to know your team’s strengths? Well, we here at TDCAA discovered a bunch of them at the Austin Panic Room. Billed as “the original escape game experience,” the panic room entails being locked in a room with a series of puzzles inside. Solving the puzzles requires the communication and help of your teammates, and the goal is to escape the room within an hour. Our staff is big enough that we split into two teams; one was locked in a “jail” and the other in an “abandoned schoolhouse.”
    Both groups went through lots of trying and failing—but that was OK. Indeed, each person brought critical skills and work as we moved through the clues. It was tougher than I expected, and I must report failure: Both teams got to the final puzzle but couldn’t complete it within the 60-minute limit. (Our guide, Doug, who stayed in touch via closed-circuit cameras and a walkie-talkie, told us that only 30 percent of groups escape in the allotted hour.) But I call it a success for two reasons. First, everyone got to know each other a lot better and learned to rely on each other. Second, as the leader, I realized that I need more management training—if I were a better manager, both teams would have escaped! Well, maybe not, but the exercise did help me appreciate why it is so important that managers put together a team that’s empowered to use each individual’s strengths for the benefit of the whole.

Diary of a killer
You are a superhero. Did you know that? You take the skills that God gave you and the powers granted you by the Texas Constitution and the laws of our great state, and you use them to protect your friends, family, and community. And make no mistake: Whether you are a civil practitioner, victim assistant, misdemeanor prosecutor, receptionist, felony chief, or investigator, using your powers to protect people is an absolute good. It is just that simple.
    And it’s also just that necessary, because evil does indeed lurk out there, and sometimes we even get a rare glimpse inside of its mind. Take this chilling diary entry, published in the Austin news and written by a woman who stabbed another woman in a brutal and completely random knife attack:
    “So, OK, I’ll start with the exciting bit. I stabbed an innocent woman to death earlier today (well yesterday since it’s 1 a.m.). … It was absolutely fantastic. Murder gives me a high unlike any other, it feels like this crisp unreality, flashing and sparkling, adrenaline and shock. Fight or flight mode. How do I even go about describing it. The whole thing was unreal. I’m so proud of myself. I stabbed her like 20 times. Maybe more. … She screamed and grabbed at me, saying ‘What the [expletive]?! Help! Leave!’ For now I should explain why. Other than the fact that I’m a homicidal psychopath. I have a deep hatred towards people right now … yesterday I lost my other gold ring I’ve worn all my life on a chain around my neck as it was ripped off by a girl I was murdering. Fate is weird.”
    Reading about this horrific attack chilled my blood. Let’s forget for a moment all the people who might find fault with prosecutors for one thing or another. Prosecutors do a hard job for all the right reasons, and when you meet a person who is capable of committing such atrocities and then writing about them in her diary with such callousness, you must be at your best. We at TDCAA want to do our part to make sure you are.