March-April 2016

Teaming up with the DA’s office

Dusty ­Gallivan

County Attorney in Ector County

How can assistant county attorneys get trial experience when the vast majority of misdemeanor cases never go to court? By partnering with the local DA’s office, that’s how. Here’s how Ector County came up with a win-win-win situation for both offices and the county as a whole.

Prosecutors want to try cases—that’s why we became prosecutors. There is no experience like being in trial! If we wanted to sit in our offices and push paper all day, we would be civil lawyers. But in an office that had only five jury trials last year, how can six attorneys go to court often enough to gain experience and hone their skills?
    We in the Ector County Attorney’s Office in Odessa file approximately 5,500 misdemeanor cases a year, but we had only five trials in 2015. That means that 99.9 percent of cases ended with a plea bargain, dismissal, or the defendant absconding.1 There are several reasons for this low number of criminal trials. Many of our defendants are pro se and just want to resolve their cases. We make fair plea offers, which they often accept so there’s no trial. And because our jail has been overcrowded, we make low jail offers for those defendants in custody, also reducing the number of trials. And affecting our number of trials specifically in 2015, a new county judge was appointed in October, so we were unable to have jury trials in his court the last three months of the year. In addition, the district courts have increased the number of felony trial weeks, which means that many of our county’s defense attorneys are in felony court, whereas in past years they might’ve been in county court on misdemeanor cases instead.
    As the elected county attorney, one of the things I miss most is trying cases. Sure, I could pick up any case I want and try it, but that would mean taking a case from one of my assistants­—what would that do for morale? They want to try cases too. And when we try so few cases, we miss out on all that excitement from a jury trial.
    By contrast, in our county’s DA’s office (headed by the elected District Attorney Bobby Bland), more than 3,000 felonies were filed last year, and more than 20 of them ended up in court. I wondered if the larger number of felony trials might be an opportunity for our assistant county attorneys to get trial experience. What if we in the County Attorney’s Office helped the prosecutors in the District Attorney’s Office with their felony trials? We could sit second chair with the first-chair ADAs and be another set of eyes and ears. I figured this partnership would accomplish two goals: give ACAs more trial experience and help the ADAs with their preparation and trials in the process. It turned out to supply those benefits—plus a few more unexpected ones.

Pitching the idea
I brought up the idea at one of our office meetings, asking the attorneys if they would be interested in assisting the DA’s Office on felony cases. The response was an overwhelming yes. Although half of us have tried felonies in the past, we welcomed the opportunity to work on different types of cases from our usual. Normally, about 20 percent of our misdemeanors are DWIs, another 20 percent are possession of marijuana, 10 percent are theft, and 9 percent are family violence (FV), with miscellaneous other crimes making up the balance. We welcomed the idea of trying aggravated robbery, aggravated assault, felony DWI, and felony FV cases. Many of the elements are similar, so it seemed like a natural transition.
    About this same time, in October 2015, the District Attorney’s Office was authorized to hire two additional prosecutors due to the increase in felony cases. Although West Texas is a great place to live and work, it can be difficult to convince attorneys to move here from larger areas. Knowing this and knowing the DA’s office could use a little assistance handling the extra caseload, I approached Bobby Bland with my idea. I had worked as an assistant under him before I was appointed county attorney, and many years before, Bobby and I were both ADAs in that office. I asked him what he thought about me trying a case with one of his prosecutors because I missed trying cases. He laughed and said sure. Then I asked if all of our attorneys could help try felony cases. Bobby liked the idea and let his ADAs know that if they had a trial coming up and wanted any additional assistance, they could just call the County Attorney’s Office. And within a couple of days, we got such a call.
    Lisa Borden, an experienced felony prosecutor in the 244th District Court, called and asked Kortney Williams, an ACA, to assist her in an upcoming aggravated assault trial. Kortney quickly agreed to help. Kortney normally has a caseload of about 400 cases, all at different stages (intake, waiting to be set for trial, and her trial docket; Kortney also handles the juvenile caseload). We had envisioned that the experienced felony prosecutor would do the heavy lifting and we would just help out, but since Kortney is eager to learn and Lisa is a fantastic teacher, Lisa let her handle some witnesses and the closing. The case resulted in a conviction (after 11 minutes of deliberation). It was great for both attorneys.
    “The stakes were higher, definitely,” Kortney says of the experience, “but the court procedures were not any different. The defendant was facing 99 years or life, and the minimum was 25 years—we don’t see anything like that in county court. I definitely learned some things I will use during my next misdemeanor trial.” For example, she discovered that the preparation for a felony trial is very similar to that of a misdemeanor trial—there is just more evidence to prepare. And her stress level was higher because the stakes were higher. It was also a great confidence booster!

Other benefits
Gaining experience for my assistant prosecutors is a wonderful result of this partnership, but it’s hardly the only one. Like many counties our size, we have a jail population problem. We just can’t move cases through the system as fast as we would like for a variety of reasons. One step the district judges took was to add 10 jury weeks to the calendar, and while doing so will help move felony cases, it puts an extra burden on an already-taxed DA’s Office and staff. Although the DA’s Office has two attorneys assigned to each court plus a sexual assault prosecutor, prepping cases for trial and having three trial weeks a month is difficult without increasing manpower. Our partnership gave the DA additional resources to move jail cases and ultimately save taxpayers money.
    Additionally, I am a firm believer that as the elected county attorney, it is my responsibility to train the staff not just to be competent at their current jobs but also to be prepared for their next jobs. Having come from private practice, I know how expensive it is to have employees who are untrained or—worse—employees who leave because they aren’t being challenged. Zig Ziglar said it best: “The only thing worse than training employees and losing them is to not train them and keep them.”
    As electeds, it is our responsibility to provide the best possible prosecution of criminal cases in our jurisdictions. To do so, we need to provide our assistant prosecutors with time in the courtroom. Many misdemeanor prosecutors have little experience and take these jobs to gain the expertise they need to later become felony prosecutors. I consider our office as a training ground for new attorneys. Although we are fortunate to have over 75 years of experience, we do have a couple of newer attorneys, and most new hires are young lawyers. If we are able to train attorneys to be good prosecutors who can then move into felony work, it’s a win-win for my office as well as Bobby’s. Turnover is expensive, both for the office and for the county. If an attorney can transfer from our office to the DA’s Office, not only have we done a service to the district attorney (he will be getting an experienced prosecutor who knows how the county operates), but we have also done a service to the community we represent (that attorney with expertise and talent has stayed in Ector County rather than moving elsewhere). Plus, instead of there being two open attorney positions (one in each office), we need to fill only one.
    This program may not work for every county. For example, if you are in a Criminal District Attorney’s Office, you already have the ability to train on both misdemeanor and felony cases. For those counties with separate offices for the county and district attorney, success will depend on the ability of the two elected prosecutors to work together for the benefit of their assistants. The biggest factor in the success of this program is the relationship between Bobby and myself. Because we can work together, we are able to accomplish so much more than in the past. We both see the benefits to our respective offices, as well as for the individuals we lead.

To serve our many different constituents, we need to think of creative programs. Just because we’ve never done something in a particular way doesn’t mean we shouldn’t give it a try. Sometimes we must break out of the status quo to make an office or situation work better. If we serve the individuals we lead, we will always move forward.


1 Editor’s note: We checked with three other county attorney’s offices of similar size to see how their number of trials measure up to those in Ector County. The Hood County Attorney’s Office, for example, tried several more cases (17) in 2015, but both Burnet County (two) and Parker County (four) had fewer.