July-August 2011

TDCAA Annual Business Meeting

Rob Kepple

TDCAA Executive Director in Austin

Our association will conduct its annual business meeting in conjunction with the Annual Criminal and Civil law Update in Corpus Christi. The meeting will be held at 5 p.m. on Wednesday, September 21 in the ballroom of the Omni Bayfront hotel.

    At the meeting the membership will elect the TDCAA executive committee leadership for the 2012 calendar year. In addition, there are three regional director spots open, listed here with the name of the current regional director: Region 3 (Eddie Arredondo, County Attorney in Burnet County); Region 6 (Doug Lowe, Criminal District Attorney in Anderson County); and Region 8 (Larry Allison, County and District Attorney in  Lampasas County). If you are thinking about running for a spot, give us a call for more information.

Houston prosecutor ­featured in Glamour

So I was thumbing through my June 2011 edition of Glamour magazine—it’s the “summer secrets issue,” in case you haven’t gotten yours in the mail yet—when I came across an article honoring one of our own, Alicia O’Neill, who is recognized for her work at the Harris County District Attorney’s Office post-conviction section, where she works to evaluate claims of innocence. The story is part of a regular feature called “Real Stories (the lives, dramas, and triumphs of women just like you),” but I could make a pretty good argument that prosecutors like Alicia, and everyone reading this, are not just like other folks. After all, prosecutors and their staffs have decided to use their gifts for the good of their communities. But it’s nice to see recognition in a publication of general circulation. Congratulations, Alicia!

Meeting planner lauded

And in another glamorous magazine, Texas Meetings and Events, our own Manda Helmick was featured as one of four outstanding meeting planners. Of course she would be, because she has done an outstanding job for y’all the last three years.

    She also takes time in the article to praise you, the TDCAA membership, on how appreciative you are of her and the association’s efforts to meet your needs. It is indeed a far cry from her previous job in New York City working as an assistant for a high-maintenance MTV executive (picture Meryl Streep in The Devil Wears Prada). Just ask Manda about the time she got a call from her boss in the middle of the night demanding that Manda phone in a room-service order for her. (The boss was hungry. And at a hotel. In London.) Indeed, I think our membership is a tad less needy and a lot more fun. To read the article, go to http://tx.meet-ingsmags.com/article/four-planners-four-paths.

Prosecutorial misconduct vs. prosecutorial immunity

You may have noticed an uptick in the use of the term “prosecutorial misconduct” in the mainstream media. Indeed, it appears that there is a concerted effort in some corners of the criminal justice community to paint prosecutors in a bad light. You’d think that Mike Nifong, the North Carolina DA disbarred for his disastrous prosecution of four Duke University lacrosse players falsely accused of rape, was a Texas prosecutor in your courthouse given the way some folks whip out his name to put you on the defensive.

    So why? To undermine prosecutors’ immunity from a civil lawsuit, that’s why. Detractors were pretty disheartened when the Supreme Court of the United States ruled to preserve prosecutorial immunity in Connick v. Thompson, 2011 WL 1119022 (March 29, 2011). (See this link for the opinion: www.su-premecourt.gov/opinions/10pdf/09-571.pdf.) Take a look, for instance, at an article in the National Law Journal written by a law school dean. In it, Dean Erwin Chemerinsky at the University of California at Irving accuses the Supreme Court of being oblivious to “study after study” demonstrating serious prosecutorial misconduct. (To read the editorial, go to: www.law.com/jsp/nlj/Pub-ArticleNLJ.jsp?id=1202491215314 &slreturn=1&hbxlogin=1.)

    But those studies invariably lump together all sorts of regular trial error, rebadged as “prosecutorial misconduct,” in an effort to beef up their claims. Some studies are based on a simple computer search of caselaw and a tabulation of the number of times the term “prosecutorial misconduct” appears in print.

    We need to be sensitive to this issue because others certainly are. During this last legislative session, a bill that rolled back prosecutor immunity to a qualified immunity surfaced in an amended form. The bill didn’t move out of committee, but you can bet we will see it again.

A novel solution to ­prosecuting barratry

In a typical session, the legislature generally fights crime by enhancing punishments and putting little doodads into the Penal Code. But every now and then, legislators pass some new criminal statute that is practical and useful to prosecutors. This session, the legislature did something unexpected to fight crime: It turned to the civil statutes.

    The problem is barratry:  runners for lawyers aggressively recruiting potential clients, which violates the law. It is a difficult case to make because often the “victim” gets a satisfactory outcome thanks to the lawyer who got the case because of the barratry. And when we do get a victim willing to testify, it is generally because he is the disgruntled loser in the civil case at issue—not exactly sympathetic.

    Enter SB 1716. This bill does not fight the problem with an enhancement or other criminal law amendment but rather recruits a new type of prosecutor: the civil bar. In this new civil statute, a victim of barratry, after the successful conclusion of the civil suit at issue, can turn around and void the contract with the original lawyer and recover all legal fees and costs, along with a hefty civil fine. In addition, that original “victim” can hire a lawyer to sue the original lawyer, and the new lawyer may recover fees and costs.

    Empowering lawyers to shut down the illegal conduct of other lawyers by using a profit motive? Brilliant.

Session thanks

Since the original Texas Penal Code was passed in 1974, the legislature has requested the presence and the input of the attorneys for the state. Not every legislator has liked what you had to say, of course, but they desperately need your input lest they make a serious mistake in our criminal law.

    As we begin our summer Legislative Update series, I want to thank some prosecutors who made it a priority to work with the legislature during the session. Thanks to Judge Pat Lykos (District Attorney in Harris County), Judge Susan Reed (Criminal District Attorney in Bexar County), Joe Shannon (Criminal District Attorney in Tarrant County), and Craig Watkins (Criminal District Attorney in Dallas County) for sending folks to Austin to work with the legislature. And thanks to their assistants in the trenches: Kevin Petroff (former Assistant District Attorney in Harris County, now in Galveston County); Katrina Daniels (Assistant Criminal District Attorney in Bexar County); Darrell Davila (Assistant Criminal District Attorney in Tarrant County); and Mike Ware (former Assistant Criminal District Attorney in Dallas County). Great work for the people of the state!

The problem of deployed witnesses

In the last 10 years missing witnesses—deployed to battle zones all over the globe—has been a real problem for prosecutors. As you may know, quite a few peace officers also serve in our armed forces and have done multiple tours of duty. This causes a big problem when it is time to call that officer-cum-soldier to the stand.

    Montgomery County Assistant District Attorney Warren Diepraam solved the problem using Skype, a common software program that allows desktop computers, equipped with small cameras, to transmit audio and visual images of both sides of the conversation no matter where in the world the two parties are. Using this technology, U.S. Army Texas National Guard Sergeant Tom Taylor, a Conroe crime scene investigator, was able to testify in a Montgomery County courtroom. The defense attorneys objected, but after arguments the court found that the procedure properly guarded the defendant’s right to confront the witness. Apparently the only hard part was getting the witness to the “stand” in Iraq; his testimony was delayed once because of rocket attacks.

A towering figure

I would like to take time to honor a friend and former Harris County prosecutor who passed away last month, Joe Roach. Although Joe had dwarfism, those who knew him never really noticed because he had a powerful presence in the room. As you might imagine, criminal defendants had a tough time telling a sob story to the jury when Joe, standing on the stool he carried to court, prosecuted a case. (Joe had asked for permission to stand on his table when he spoke because he thought that would be fun, but judges uniformly denied that request).

    I think it was tougher on Joe than we thought. Joe told me of a question asked of him during an interview for his job, in which a black prosecutor asked him if he felt discrimination for being a little person. His answer, which was telling, went something like this: “Your people were sold into slavery, but my people were given away as gifts.” I learned that many little people fail to gain traction in this world, and Joe, as a leader of the national little people community, struggled to improve the public’s perception—and their own vision—of their value to the community.

    I’ll never forget his response to a rude guy on the street who came up to Joe and asked, “Man, how tall are you?” Joe’s reply? “Tall enough.” Indeed. Rest in peace, Joe.