Texas Prosecutor, September-October 2018

TDCAA leadership transition

I am proud that our association is truly member-driven. Your board of directors, made up of an executive committee, at-large members, regional directors, and a few ad hoc positions, meet quarterly and otherwise as needed to keep us on track. Following our long-range plan, we use committees to develop the training and services you need.  
    Board elections are held in conjunction with the Elected Prosecutor Conference and will happen this year at 5 o’clock p.m. on Wednesday, November 28, at the Embassy Suites in San Marcos, for terms that begin on January 1, 2019. The positions that are up this time are as follows (with the current officeholder in parentheses): Secretary/Treasurer (Kenda Culpepper, CDA in Rockwall County);  Criminal District Attorney at-Large (Greg Willis, CDA in Collin County); County Attorney at-Large (Teresa Todd, CA in Jeff Davis County); Region 1 Director (Landon Lambert, CA in Donley County); Region 2 Director (Dusty Gallivan, CA in Ector County); Region 4 Director (Steve Tyler, CDA in Victoria County); and Region 7 Director (Kriste Burnett, DA in Palo Pinto County). A map of the TDCAA regions is below.
    If you have an interest in one of these positions, just call a board member or me here at TDCAA (512/474-2436) for more information.

Brumley chairs Risk Management Pool
Congratulations to C. Scott Brumley, CA in Potter County, for his selection as the Chair of the Texas Association of Counties Risk Management Pool. The risk pool, which currently enjoins the membership of 85 percent of Texas counties, is an invaluable resource to help our counties protect against market fluctuations in the cost of insurance. It is also a great source of protection for many elected and assistant prosecutors who from time to time face lawsuits stemming from your work.
    If you haven’t thought about your coverage in case you are sued, these are the folks who likely cover you. You may wish to talk with your office or county human resources department for more information. And it is very important if you are a district attorney that you know who represents you in court when you are sued—and who will be footing the bill. In many circumstances, your absolute immunity allows you to exit a lawsuit early in the process, but there is still a legal bill for that!    

Prosecutor exceptionalism and immunity
Speaking of prosecutorial immunity, recently the Seventh Court of Appeals issued a nice opinion discussing and reaffirming prosecutorial immunity. In Hesse v. Howell, the appellate court affirmed the dismissal of a lawsuit against an assistant DA who was prosecuting a criminal contempt action against a defense lawyer. It is an important opinion in these times because more than one criminal justice reform outfit has suggested that prosecutorial immunity be stripped away as a way to control “bad” prosecutors.  
    The Amarillo court cites the seminal case regarding prosecutorial immunity, Imbler v. Pachtman. The facts of that case vividly illustrate why immunity is vital to the work of prosecutors and why any diminution of those protections would be a huge mistake. Pachtman prosecuted Imbler for capital murder and obtained a conviction and a death sentence. After the trial, Pachtman discovered evidence that corroborated the defendant’s alibi and undercut the conviction. He did what prosecutors do: He notified the right people and cooperated with the defense in the habeas process that ultimately reversed the conviction. Indeed, in one brief, Imbler’s attorney lauded Pachtman’s work as “in the highest tradition of law enforcement and justice.”  
    Then, in the ultimate display of ingratitude, Imbler sued Pachtman and loaded up the lawsuit with all sorts of allegations of prosecutorial misconduct. But the United States Supreme Court made it clear that prosecutors must be free to take courageous action without the fear of civil lawsuits. The Court opined that unfounded litigation would cause a deflection of the prosecutor’s energy from public duties and would cause the prosecutor to shade decisions instead of exercising the independent judgment required by public trust. And in Imbler’s case, what kind of message would it send to a prosecutor who found exculpatory evidence after trial and immediately disclosed it?  
    I suggest you keep the facts of Imbler v. Pachtman in mind the next time someone argues that prosecutorial immunity should be undermined. The job of the independent prosecutor is truly exceptional, and that independence is essential if we are to do justice, including protecting innocent defendants.

Recruitment, law schools, and prosecutors  
The TDCAA Diversity, Recruitment and Retention Committee, chaired by Sharen Wilson (CDA in Tarrant County), has been discussing how we can better position our profession in law schools.  After all, your offices offer something unique to new lawyers: the chance to be a minister of justice. Even more appealing to some newly minted lawyers is that you give them the chance to actually try cases and develop courtroom skills, something that Big Law can’t do anymore.
    To get the word out about how great prosecution is as a profession, we will be spending time getting to know the career services folks at all the Texas law schools and the various affinity groups who may be interested in knowing more about prosecution.
    One school is not waiting for us to come to it: Baylor School of Law. Brad Toben, dean of the school, is justifiably proud of Baylor’s robust trial skills program, so much so that the school is reaching out to prosecutor offices to trumpet its students and the skills they are developing. Its first outreach event is a reception to be held Thursday night at TDCAA’s Annual Criminal and Civil Law Seminar in Galveston. This is a great idea and a way for you to connect with talented new lawyers. I hope everyone has a chance to stop by!      

Criminal defense versus social justice
We all follow different criminal justice-related Twitter feeds and blogs. I was recently introduced to a blogger who describes himself as a lawyer representing indigent offenders on appeal. You can read his blog at https://appellatesquawk.wordpress.com. It is healthy to read differing views on the criminal justice system, and this blogger brings some entertaining twists to the online chatter.
    Take, for instance, his recent post on criminal defense versus social justice. The blogger bemoans a memo from his HR department that announced that the office was branding itself as a “social justice organization” dedicated to the interests of “the most vulnerable.” He chafes at this, because although there are times when he believes his clients are innocent, most often they hardly qualify as vulnerable. Indeed, most of the time his office is defending clients against justice. He offers this entertaining example of how this new office mantra might play out in court:

Defense counsel: I move to preclude any testimony about my client’s prior record, pursuant to People v. Rodriguez.
Court: What does Rodriguez say?
Defense counsel: How should I know? The point is, my client belongs to a marginalized, powerless, historically underrepresented group.
Prosecutor: So does the victim.
Defense counsel: Oh, yeah? What supposedly powerless group does your so-called victim belong to?
Prosecutor: Dead people.
Defense counsel: Oh. OK, you win.

Scott Durfee is The Man
For many years, Texas prosecutors have enjoyed and benefited from the many ethics and civil law-related presentations by Scott Durfee, an assistant in the Harris County DA’s Office. Scott is a great teacher, and we all enjoy his mild-mannered and self-effacing style.
    So who would expect that in his spare time Scott mixes it up in the dog-eat-dog world of poker? The World Series of Poker, to be exact. Scott has played for many years on the circuit, and according to the authoritative Hendon Mob Poker database, Scott is ranked 3,123 in all-time poker winnings for Texas players. That puts him on the list with the legendary Amarillo Slim, the 1972 WSOP winner, and “Texas Dolly” Doyle Brunson, two-time WSOP winner.  Indeed, Scott has made it “to the cash” in WSOP tournaments five times in the last couple years, and he finished eighth a couple years ago in the Oklahoma event.
    For me, here’s the best part: Scott’s poker persona. You’ve seen the tournaments on TV: All the players have a “thing” that they do.  Scott chooses to respect the traditions of Vegas by going as a member of the Rat Pack (think Frank Sinatra and Sammy Davis, Jr.), complete with black suit, white shirt, and skinny black tie. Classic Scott Durfee!    

Death By Injection
It has been awhile since we have had Death By Injection at a TDCAA event so you may not know them, but the Houston Chronicle newspaper recently published a feature about what David Mitcham, an ADA in Harris County, has dubbed the “preeminent lawyer band in Harris County, at least in the latter part of the 20th Century”: Death By Injection. It’s a band made up of people who at one time or another put people in prison. (You can read the article at  www.houstonchronicle.com/entertainment/music/article/Death-By-Injection-....)  It has been around since the 1980s, and most members, both former and current, were at one time prosecutors: David Mitcham and Scott Durfee (ADAs in Harris County), Bill Delmore (ADA in Montgomery County), Don Clemmer (ADA in Travis County), Brian Johnson (Assistant Attorney General in Austin), Dick Bax, Glenn Gotschall, Clay Rawlings, R.K. Hansen, and Doug O’Brien (former ADAs in Harris County) and retired Houston homicide detective Hal Kennedy. The Chronicle article is a great read about musicians who were wise not to give up their day jobs but who are wildly entertaining. (I don’t think I am offending them; they say worse about themselves in the article!)
    By the way, you can get their album, Down at the Courthouse, on iTunes. I am listening to it as I write this column. The album title was apparently inspired by Scott Durfee getting hit by a bus as he crossed the street in front of the courthouse. (You can’t make this stuff up.)
    And the band’s name? They have tried to ditch the name a few times—the name was not picked by the band but apparently given to them by someone who opined that listening to them was like death by injection. They candidly admit that the name has contributed to the band’s continued success and notoriety—I talked to the Chronicle reporter shortly after the article came out and asked if she would have written the story because of their musical talent if they had a boring name. “Nahhh,” was her reply. I’ve been reminded how fun it is to have “DBI” at a TDCAA event, and we will be entering into negotiations with the band’s booking agent soon (David, I think that is you).

Congrats to Kenda Culpepper
Congratulations to Kenda Culpepper (CDA in Rockwall County) on her selection as the chair of the Criminal Justice Section of the State Bar. This is a terrific honor and a great thing for our profession. You can read more about the Section’s activities in TDCAF News on page 4.

Endnotes

1  No. 07-16-00453-CV (Tex. App.—Amarillo, June 7, 2018).

2  424 U.S. 409 (1976).

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