September-October 2017

TDCAA Board service

Rob Kepple

TDCAA Executive Director in Austin

The key to TDCAA’s success is that we are a member-driven organization. Our training and services are developed by committees of our members, all guided by a series of five-year, long-range plans. And it all comes together under the guidance of TDCAA’s board of directors. TDCAA has a strong board made up of the executive committee, at-large positions, and regional directors who represent a good cross-section of our profession; both rural and urban; felony, misdemeanor, and civil practice, and from across the state.
    Elections for the board are held at the Elected Prosecutor Conference in December, with two-year terms that begin January 1. The executive committee and at-large positions will be nominated in the fall by the Nominations Committee. Here are the positions up for election this fall, with the current officer-holder in parentheses: Secretary-Treasurer (Jarvis Parsons, DA in Brazos County); District Attorney At Large (Julie Renken, DA in Burleson and Washington Counties); Assistant Prosecutor At Large (Woody Halstead, ACDA in Bexar County); Region 3 Director (Rebekah Whitworth, CA in Mason County); Region 5 Director (Steve Reis, DA in Matagorda County); Region 6 Director (Kenda Culpepper, CDA in Rockwall County); and Region 8 Director (Dusty Boyd, DA in Coryell County).
        If you have an interest in running for election, call one of your board representatives or me for more information. We need your energy in TDCAA leadership for the good of the profession!

Update on the statewide mixture DNA review
We are well into the second year of the mixture DNA review process. It has been a Herculean effort for many of you to go back and identify all of the convictions based at least in part on the now-questioned mixture DNA tests using the combined probably of inclusion (CPI) analysis without the stochastic threshold. (Find a refresher on this issue HERE.)
    I want to take a moment to thank Bob Wicoff, the Appellate Chief of the Harris County Public Defender’s Office, who took on the task of operating the “triage unit” for communications with prosecutors whose convictions may have been tainted by a now-suspect CPI calculation. Bob has filled a gap in the process by re-evaluating these old cases when a convicted person has requested it. I have heard time and time again from y’all that Bob has done a great job of working with you, and he has earned high marks for his even-handed approach.
    Remember that we started with a list of about 25,000 cases from DPS. By now prosecutors have sent out letters to almost everybody who may have a conviction based at least in part on an old CPI calculation. Of those, Bob’s unit has reviewed around 2,800 cases and closed about two-thirds of them. Not surprisingly, it would appear that many of the cases have lots of additional evidence that supports the conviction with no further DNA re-testing warranted. We are far from concluding the process, but so far we have not had a cascade of cases in which the conviction is seriously undermined by a DNA re-calculation. It will be interesting to see how the numbers stack up at the conclusion of the project. But before you chafe about how this might end up being a big waste of time, remember that we have that continuing duty to the public to show we are always going to get it right. Even if we don’t find a single wrongfully convicted person in this mix, I would still argue that this is an important operation in the name of good government.

Conviction integrity update
Now that you just read the previous paragraph and remembered all the work you did to pull cases and send letters in DNA mixture cases—which will likely amount to nothing—note that it appears our nation is paying attention to your efforts to deliver justice, even if it means laboriously reviewing old cases to be sure justice was served. The Atlantic magazine just published a lengthy article on the status of prosecutor conviction integrity units around the country; read it HERE. The article goes out of its way to recognize Texas offices as pioneers and leaders here.
    Of course, we have many prosecutor offices in Texas, and most aren’t large enough to dedicate multiple employees to such an effort. But I believe that the mindset of Texas prosecutors is correct: You are dedicated to the truth wherever it leads. (Which is why you sent out all those mixture DNA letters.)

Eyewitness evidence is better than you think
We’ve been conditioned over the last decade to question eyewitness identification and turn to hard science, such as DNA, to prove who committed a crime. After all, we know than incorrect eyewitness identification contributed to many wrongful convictions.
    But wait! It appears that eyewitness evidence may not be as inherently suspect as we have been told. In a recent article in The Scientific American magazine, researchers argue that if eyewitness evidence is properly obtained and evaluated, it can be plenty reliable. (Read it HERE.)
    Researchers discovered that there is a difference between malleability—the ability to contaminate a memory of an event—and reliability. Once that difference is appreciated, the researchers argue, procedures can be put in place to minimize “contamination.” After all, we have learned through our DNA mixture exercise that evidence comes in different strengths. If the proper protocol is followed, the evidence is reliable. What is true for DNA is true for eyewitness evidence, too.
    Researchers identified three key components to a good eyewitness protocol. First, the initial eyewitness identification is the most important—after all, any subsequent ID (like in court months later) can be viewed as contaminated by earlier events. Second, that initial lineup must be fair. Third, the witness’s confidence in the identification must be recorded. The bottom line is that a proper lineup with a “high confidence” report from the eyewitness turns out to be highly accurate.
    At this point you might be thinking to yourself, “Wait, didn’t I just hear at TDCAA’s Legislative Update earlier this summer that there were significant changes to how lineups are to be done in Texas?” Yes, indeed. Article 38.20 of the Code of Criminal Procedure has been amended, effective September 1, 2017, to seemingly reflect the very research reported in the Scientific American article. First, lineups must follow evidence-based practices for selecting participants to be sure that the alleged perpetrator does not stand out. Second, a witness who makes an identification in a photo or live lineup shall immediately state in the witness’s own words how confident he is in the selection. Finally, if there was an earlier out-of-court identification, an in-court identification is admissible only if all of the details of prior identifications are offered (remember the word “contamination” from the article?). It is nice to see that the legislature was in sync with developing research on this important issue.  

Congratulations, Tuck McClain
Congratulations to Tuck McClain (DA in Grimes County) on his appointment to the newly created Grimes County Court-at-Law. Tuck had served as the DA for over 20 years and is going to make an excellent judge. Thanks, Tuck, for your service to TDCAA and the profession!

Straight into the frying pan
I would like to take a moment to recognize one of our county attorneys, Kira Talip (CA in Kleberg County), for her calm and resolve under fire. When Kira first took office, it wasn’t long before she was bumping up against her county court-at-law judge, Alfred Isassi. You might vaguely recall that name, as Isassi was a county attorney who back in 2008 was convicted of improper influence for trying to cut off the investigation and prosecution of a family member. Lo and behold, years later he reappeared as a judge.
    Imagine as a new elected prosecutor, just getting up to speed at the job and looking at a case dismissal form with your signature on it—that you never signed. As uncomfortable a position as she was in, Kira forged ahead with an investigation that led to a special prosecutor, testimony in court, a conviction, and ultimately Isassi’s recent disbarment. It is tough to go against a judge with serious accusations early in your career, and it was probably not what Kira thought she had signed up for—but then again, many of you face challenges that you never thought would come with the job of criminal prosecution. Well done, Kira.

Rejuvenated journal
You may have noticed upon receiving this issue of the journal that it looks different—that’s because the editor, Sarah Wolf, TDCAA’s communications director, has spent the last couple of months redesigning it. (In her words, “It was screaming for a makeover.”) Some new fonts, an airier layout, and lots of trial and error later, the redesigned journal is now in your hands.
    Please also look for the first appearance of some new columns in this issue. We plan to publish book reviews; columns on management and leadership, as well as TDCAA training; and a regular treatise from Bill Wirskye, First Assistant Criminal District Attorney in Collin County, from now on. We hope you like the changes!

A sobering situation
Being a lawyer is a stressful job. Heck, working in a prosecutor office can be a stressful job for anyone—as one of my prosecutor friends says, “you have your hands in the wounds.” So when I recently came across this article about a lawyer who got into trouble (read it HERE), I thought it was worth sharing. It is about a “high-powered Silicon Valley attorney,” yes, but his situation has nothing on prosecutor office work. I am hopeful that y’all are taking care of yourselves. And if you are feeling the weight of the stress, I am also hopeful that you will take time to access the resources offered by our State Bar through the Texas Lawyers Assistance Program. You can check it out at THIS LINK.