January-February 2018

“Setting the Record Straight on ­Prosecutorial Misconduct”—five years later

Rob Kepple

TDCAF and TDCAA Executive Director in Austin

Five years ago, the Texas District and County Attorneys Association issued a ground- breaking report titled “Setting the Record Straight on Prosecutorial Misconduct.” (If you haven’t read it, I highly recommend that you do. Click HERE to be redirected to it.) It was ground-breaking because it represented the product of a self-examination of our profession that hadn’t happened anywhere in our country. As prosecutors, we all are used to keeping our heads down and doing the job, but there was a growing sense that our profession was a step behind—on exonerations, wrongful convictions, the use of developing forensic science, and responding to attacks on our core functions.  
    It was time for introspection. The TDCAA leadership appointed a committee whose job was to investigate prosecutors’ role in preventing wrongful convictions and make recommendations on how our profession could take the lead in bolstering the public’s confidence in the criminal justice system. The committee examined exonerations based on forensic science, eyewitness misidentification, and prosecutorial misconduct (including failure to disclose exculpatory evidence). They interviewed prosecutors, defense attorneys, law professors, and law enforcement officials in their quest to better appreciate the problems in these areas and to look for ways TDCAA might enhance training and other support services for the benefit of the profession. We were determined to go where the investigation led us.
    In the end, the committee made 10 findings and followed up with a number of recommendations to restore our profession to a leadership role in the criminal justice profession.
    How have we done in these last five years? Here are some key advances.

Conviction integrity
Prosecutors recognize that—with no bad intentions—a person can be wrongfully convicted. We have spent a lot of time re-examining cases in light of new science, and everyone has taken a second look at eyewitness identification (more on both of those in a bit). Prosecutors rolled up their sleeves and led the way in conviction integrity, even on a national level.1 Additionally, prosecutor offices in Bexar, Dallas, Harris, Tarrant, and Travis Counties have established conviction integrity units to examine past cases. Even without an established “unit,” modest-sized and small offices have devoted time and energy to reviewing cases that deserve attention.

Forensic science
Advancement in the science of DNA has allowed us to take a closer look at past cases. In the last few years, prosecutors have not shied away from DNA testing when it can make a difference in evaluating a prior conviction. Indeed, when scientists raised questions about the proper interpretation of “mixture DNA” evidence, Texas prosecutors took the lead in a statewide review of every conviction that may have been supported by a mixture DNA analysis. You might recall Galveston County CDA Jack Roady speaking at a number of TDCAA courses about the need to get in front of this issue and be proactive. (You can read an article about the topic from his first assistant, Kevin Petroff, at www.tdcaa.com/journal/changing-state-dna-analysis.) That process is still ongoing, and prosecutors continue to be involved.  
    Texas prosecutors have taken a leadership role in forensic science. We are lucky to have the Texas Forensic Science Commission, which advances the use of science in our courthouses in an organized fashion. Prosecutors, including Brazos County DA Jarvis Parsons, have been deeply involved in the commission’s work.

Eyewitness identification
The Innocence Project and others have argued that up to 80 percent of wrongful convictions were due at least in part to inaccurate eyewitness identifications. As a result, TDCAA continues to train on eyewitness identification protocols and best practices. In addition, prosecutors were very involved in recent statutory changes that enhance the courtroom scrutiny of eyewitness testimony. House Bill 34 (85th Regular Session) was the culmination of the Timothy Cole Exoneration Review Commission’s efforts. Staley Heatly, the DA in Wilbarger, Hardeman, and Foard Counties, sat on the commission and was instrumental in developing the bill’s language regarding procedures and protocols for eyewitness identifications. Importantly, the bill as passed reflects the evolving science surrounding eyewitness testimony, and it would not have received proper scrutiny without prosecutor involvement.   

The committee recognized that although prosecutorial misconduct was rare, most claims were based on assertions that the prosecutor had not disclosed exculpatory or impeaching evidence. At the time, TDCAA committed to doubling down on our Brady training efforts (which had been in full swing for five years before our report was issued), and we committed to examining best practices and laws around the country.   
    In 2013, the Legislature passed a bill drafted by then-Bexar County Criminal District Attorney Susan Reed mandating that every prosecutor take a course on Brady every four years. TDCAA implemented that mandate in 2014 when, with funding from the Texas District and County Attorneys Foundation (TDCAF) and the Criminal Justice Section of the State Bar, we produced an hour-long Brady training available to all lawyers on our website free of charge. (That course remains online [you can view it at http://tdcaa.litmos.com/online-courses], but now that we’re at the four-year mark, we’ll be updating it sometime this year to reflect the Michael Morton Act and cases interpreting it.)
    Speaking of, that same year, the Texas Legislature also passed sweeping discovery reform known as the Michael Morton Act. The act goes well beyond Brady in its requirements for disclosure, and it is behind only the discovery law in North Carolina in its breadth. Texas prosecutors participated in the development of that statute, and although the implementation has not been without challenges, we have earned praise from Michael Morton himself for our dedication to effective discovery for the defense.
    Many of you were in the audience at TDCAA’s Annual Update in 2013 when Mr. Morton delivered the keynote address. He humbly observed that the job you do is important—wryly noting that he had spent 27 years locked up with scary people who had been rightfully convicted—and that prosecutors had to be dedicated to doing their jobs right. As you recall, we gave him a standing ovation. I believe our profession took his words to heart.

Cognitive bias
Another recurring theme in wrongful convictions is cognitive bias. “Cognitive bias” means that people tend to believe what fits their preconceived notions. It’s not bad; it’s actually how we learn. But it can lead to inaccurate beliefs when our notions are so strong that we discard ideas and evidence to the contrary. We can see how this is dangerous in prosecution: If a law enforcement officer or prosecutor comes down with a bad case of “tunnel vision” early in a case, he risks ignoring evidence that points to innocence, and he might not recognize something exculpatory staring him right in the face.    
    To be forewarned about this danger is crucial, and we have had the benefit of presentations by Alafair Burke, a professor at Hofstra School of Law and former prosecutor, on the subject. Professor Burke has argued that too often prosecutor conduct has been “viewed through the lens of fault, blame, and intentional wrongdoing.”2 Instead, Burke believes the present climate presents “an opportunity for prosecutors themselves to counter the traditional fault-based narrative and to become partners in the emerging movement to prevent wrongful convictions.” It appears that Texas prosecutors are embracing that approach. We agree with Professor Burke that training on the dangers potentially posed by cognitive bias is essential. You will be seeing more of it in the future.  

During its research phase, the committee spent quite a bit of time discussing accountability for wrongdoing. One narrative floating out there five years ago was that Texas prosecutors were not held accountable for their conduct. This was a tough area to delve into because it meant doing something uncomfortable—talking about the past missteps and misconduct of Texas prosecutors.
    Nonetheless, the committee researched the topic and discovered that there is indeed plenty of accountability for Texas prosecutors, from State Bar discipline and criminal investigation, to removal from office and courts of inquiry.
    Even so, there have been additional developments in the discipline of prosecutors since the report was issued. In 2013, the Texas legislature passed a bill mandating that all discipline for prosecutors relating to Brady violations be public. The bill also removed any statute of limitations for such disciplinary actions.3 In addition, the State Bar president took the unusual step of declaring that the Bar would be actively pursuing prosecutors.4 As far as I can tell, the Bar has been true to its word with the disbarment of the prosecutors in the Morton and Graves cases, as well as several other Bar actions.5 
    As I have mentioned before, an active Bar process is a good thing as long as it is fair and even-handed and gives all segments of the Bar equal attention when it comes to allegations of misbehavior. We shall see how it plays out in the future.
Management training
The report hammers home the need for professionalism among prosecutors, as well as continual training on how to seek justice. These recommendations, while not directly calling for it, planted a seed for a new type of prosecutorial training: management skills.
    The genesis of the Prosecutor Management Institute (PMI) was the recommendation that TDCAA design Brady training that met the needs of the different “strata” within an office: elected prosecutors, mid-level supervisors, new prosecutors, support staff, and investigators. As well-intentioned as an elected may be in leading her office in an ethical manner, most courtroom justice is accomplished by the prosecutors in the trenches. Are prosecutor offices good at making sure the elected prosecutor’s vision makes it all the way down to the newest hire? Though every major industry has management training programs to ensure quality, safety, and success, the same is not true for prosecution. Someone becomes a manager or court chief because he tried a lot of cases well, not because he’s an especially gifted leader.
    With the support of the TDCAF, in the last two years, the TDCAA staff and Training Committee have developed the first module of the Prosecutor Management Institute meant for new supervisors. It is the first of its kind in the nation, and the Fundamentals of Management course has been enthusiastically received. (Read more about it from TDCAA’s Training Director, Brian Klas, at www.tdcaa.com/journal/long-last-management-training-masses.) Our next step is to build up our capacity to offer the course all over the state on a consistent basis. In the long run, this course promises to revolutionize the operations of a typical prosecutor office and may be the most significant endeavor to come from the work of the committee five years ago.     

Times have changed. Five years ago, it seemed our profession was a step behind. Not today. I am proud to see how Texas prosecutors humbly took time out to do some real introspection about our profession. Now, here we are, and I believe Texas prosecutors are a step ahead in the search for truth and justice. I’m honored to work for you.     

TDCAA leadership for 2018
On December 6, the TDCAA held its annual business meeting to elected our board for 2018. Randall Sims (DA in Potter and Armstrong Counties) will serve as Chair of the Board; Jennifer Tharp (CDA in Comal County) will take the reins as President; Jarvis Parsons (DA in Brazos County) was elected as the President-Elect; and Kenda Culpepper (CDA in Rockwall County) was elected as Secretary/Treasurer. Additionally, Teresa Todd (CA in Jeff Davis County) will serve as County Attorney-at-Large and Greg Willis (CDA in Collin County) will serve as Criminal District Attorney-at-Large. Dusty Boyd (DA in Coryell County) will serve as District Attorney-at-Large, and Justin Wood (ADA in Travis County) will serve as Assistant Prosecutor-at-Large.
    For 2018 you will be served by the following Regional Directors:  Region 1, Landon Lambert (CA in Donley County); Region 2, Dusty Gallivan (CA in Ector County); Region 3, James Hicks (CDA in Taylor County); Region 4, Stephen Tyler (CDA in Victoria County); Region 5, Jack Roady (CDA in Galveston County); Region 6, Patrick Wilson (C&DA in Ellis County); Region 7, Kriste Burnet (DA in Palo Pinto County); Region 8, Julie Renken (DA in Washington and Burleson Counties.  Thanks to this great group for stepping up to serve!

Public Service Loan Forgiveness program in jeopardy
My guess is that a number of prosecutors reading this column have enrolled in the federal Public Service Loan Forgiveness (PSLF) program. For those of you who don’t know about it, it started 10 years ago by President George W. Bush. Under the plan, once enrolled, a person could work in any number of public service jobs, including prosecution, for 10 years—all the while making payments on his student loans—and the balance of those federal student loans would be forgiven after 120 payments. Sounds great, right? Of course, for the last 10 years, the government has not had to forgive any loans, but the bill is coming due this next year.
    Yes, you guessed it, now the federal government may renege on the promise. You can read about it here: www.forbes.com/sites/andrewjosuweit/2017/08/18/is-this-the-end-of-public-service-loan-forgiveness. In the next budget, the bill for relief under the PSLF would be $24 billion. As you might imagine, it is a target for budget hawks this year, especially in light of the move to pass tax reform.
    In response, the American Bar Association and other trade groups have created a coalition to bird-dog this issue. Our friends at the National District Attorneys Association are paying close attention, I promise. If you need more information or want to get involved, contact me and I will put you in touch with the coalition leadership.     

You’ve got what others want
OK, so you didn’t get an offer at a deep-rug law firm and instead took a job at a prosecutor office. You work long hours, earn a government salary, and never feel like you’re prepared enough. But you’re also trying cases in front of judges and juries, getting satisfaction that you are doing important work, and learning how to seek justice. Not a shabby way to spend a workweek.
    Turns out some folks in the deep-rug firms long for your job, and a few get a chance to do it under a “loaner lawyer” program operated in the Dallas County Criminal District Attorney’s Office. Texas Lawyer magazine recently published an article about Akin Gump attorney Kendrea Tannis. (Read about her here: www.law.com/texaslawyer/sites/texaslawyer/2017/11/01/a-promising-young-litigator-gains-trial-experience-by-volunteering-to-be-a-misdemeanor-prosecutor-at-the-dallas-das-office.) Kendrea is on loan from Akin Gump to the DA’s Office so she can gain trial experience while helping with the prosecutor office’s caseload. The Akin Gump partner who chose Kendrea for the program, Scott Barnard, had some great things to say about the work of a misdemeanor prosecutor, having done the lawyer-loaner program himself years ago: “It was the most fun I ever had as a lawyer.  It’s like going back to college, in a way, because they’re training lawyers on the fundamentals of misdemeanor trials.”  
    If you feel like there are not enough hours in the day with your misdemeanor cases set for trial, I hope you remember that you are getting something that is pretty unusual in the practice of law: jury trials. Add in that you are seeking justice, and you may realize why so many lawyers who were ever prosecutors say it was the best time in their professional lives.


1  https://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/v31/chandler.authcheckdam.pdf.

2  Burke, Neutralizing Cognitive Bias, Hofstra Legal Studies Research Paper Series, Research Paper No. 07-4, 2007, at 2. https://papers.ssrn.com/sol3/papers.cfm.

3  See Tex. Gov’t Code §81.072. 

4  Apfell, Trey. “Modern Musings,” President’s Opinion, Texas Bar Journal, December 2014.

5  See “Just Disclose It,” The Texas Prosecutor, March-April 2016.