The Texas Prosecutor, November-December 2018

Thanks to those who have served

Being an elected prosecutor is a tough and rewarding job. You are sent into a courthouse with a mission to simply do justice, which is both the simplest and the hardest job in the world. I admire everyone who steps up to take on this challenging and at times thankless job. So thanks to my friends who will be leaving their posts at the end of the year: Matt Bingham (CDA in Smith County); Carl Dorrough (CDA in Gregg County); John Healey (DA in Fort Bend County); Steve Hollis (CDA in Jasper County); Nico LaHood (CDA in Bexar County); Randall Lee (CDA in Cass County); Chris Martin (CDA in Van Zandt County); Matt Powell (CDA in Lubbock County); Abel Reyna (CDA in McLennan County); Maureen Shelton (CDA in Wichita County); Coke Solomon (CDA in Harrison County); Steve Tyler (CDA in Victoria County); and David Weeks (CDA in Walker County).

Highlights of the Annual Update
Nearly 1,000 Texas prosecutors and staff gathered at the Moody Gardens in Galveston for our Annual Criminal and Civil Law Update. By all accounts it was a terrific training—and when all the training rooms were full at noon on Friday, we knew it was a valuable event! At the top of the list was Michigan Assistant U.S. Attorney Kevin Mulcahy’s keynote presentation, “Randy and Me,” which offered insight into the thoughts, emotions, and pain of a victim of childhood sexual abuse. Kevin reminded everyone in the room that prosecutors have the opportunity to be heroes to scared children facing their abusers in court.
    A close second was Friday’s final session about Brady and discovery compliance. Kevin Petroff (First Assistant CDA in Galveston) and TDCAA’s own W. Clay Abbott offered insights into how to handle issues of compliance with Brady, Rule 3.09(d) of the Texas Disciplinary Rules of Professional Conduct, and the Michael Morton Act. Attendees also thought that the case studies presented throughout the seminar were very valuable.
    Although helpful for most, some folks said the presentations were “too basic” while others said “too advanced.” Hitting that “sweet spot” of the experience level in trial advocacy sessions is always the challenge for the Training Committee in designing the Annual course, but rest assured that we continue to work on it.
    Finally, one of the most important sessions for some was the Diversity, Recruitment, and Retention Committee’s roundtable discussion on Friday morning (complete with breakfast tacos!). The committee members, directed by Sharen Wilson (CDA in Tarrant County) and moderated by Jeremy Sylestine (ADA in Travis County), engaged TDCAA members in energetic roundtable discussions that explored race and gender issues within prosecutor offices and our criminal justice system as a whole. The discussion was a great way to continue the dialogue about increasing diversity within our profession and addressing race and gender issues. It is a challenging and long-term project to be sure, and you will see more work on it in the near future at TDCAA trainings.

Student loan forgiveness
Some of you might recall that in 2007 the federal government created the Public Service Loan Forgiveness Program. The concept was simple: reward people who dedicate 10 years of their life to public service (such as prosecution) by forgiving their federal student loans at the end of that time period.
    But it appears that the program has not been meeting expectations. You can read about it here: https://slate.com/business/2018/09/public-service-loan-forgiveness-program-applicant-rejections.html. My question is, how many Texas prosecutors have enrolled, and has anyone actually received forgiveness? If you have experience with this program, please share it with me at [email protected]. I will report what I have heard in an upcoming issue of this journal.
 
Outgoing Board members
TDCAA enjoys the work of a very active board of directors. I’d like to personally thank the board members who will be concluding their service at the end of the year: Randall Sims (DA in Potter & Armstrong Counties); Greg Willis (CDA in Collin County) Teresa Todd (CA in Jeff Davis County); Landon Lambert (CA in Donley County); Dusty Gallivan (CA in Ector County); Steve Tyler (CDA in Victoria County); and Kriste Burnett (DA in Palo Pinto County).
    For those who wish to serve, there is always a place, so we will be counting on your leadership in the future!

Congratulations to Mike Snipes
Congratulations to Mike Snipes (First Assistant CDA in Dallas County) on his recent recognition by the Texas Lawyer magazine as a Litigator of the Week. Mike prosecuted a Balch Springs police officer for the shooting death of 15-year-old Jordan Edwards. You can read about it at www.law.com/texaslawyer/2018/09/05/litigator-of-the-week-a-rare-murder-conviction-of-a-police-officer. By all accounts it was a tough case for the prosecution, but Mike was willing to lead by example and take it on himself. Why? Mike explains in the article: “I can’t overemphasize this,” Snipes said. “To me, Mike Snipes, the case was never a political case. It wasn’t about white vs. black or Democrat vs. Republican. I didn’t do it because of that. I did it for the kid. If you knew the kid like I did, you would love him.”

MADD honors ADA Chari Kelley
Mothers Against Drunk Driving have honored Chari Kelly (Assistant DA in Travis County) as its 2018 Prosecutor of the Year. The award recognizes a prosecutor who has gone above and beyond in prosecuting DWI cases and ensuring that those who drink and drive face appropriate consequences for their actions. In particular, Chari was recognized for her 2017 prosecution of Joseph Cantu, who killed University of Texas track athlete Philip Wood in a hit-and-run collision. Congratulations on a well-deserved recognition!

Prosecutors honor Joan Huffman
Recently some prosecutors gathered in Austin to thank State Senator Joan Huffman for her efforts in the last legislative session. Senator Hufman, a former Harris County Assistant District Attorney and district judge, had a very active session. She passed some significant legislation, including SB 227 (the “Adderall fix”), SB 1232 (bestiality), SB 1264 (grand juror counseling), SB 1298 (larger grand jury panels), and SB 1329 (omnibus new courts bill). She also sponsored some House bills in the Senate, including HB 29 (omnibus trafficking bill), HB 281 (rape kit tracking system), HB 2529 (coercion in trafficking cases), HB 2552 (prostitution and trafficking), and HB 2612 (civil liability for providing synthetic drugs). That is a lot of work in one session!

Carol Vance, a progressive ­prosecutor
I fear that many of our younger prosecutors may not know Carol Vance, a former Harris County District Attorney and partner at the law firm now known as Bracewell LLP. Carol is a leader in our profession, having been the driving force to obtain grant funding that launched TDCAA’s training efforts in the 1970s. He led by example during his tenure, but even more impressive is his continued devotion to the rehabilitation of incarcerated individuals.
    Carol recently sent his regrets that he could not attend our annual conference, and his RSVP email to me tells you everything you need to know about this true Texas hero: “Rob, I cannot make the TDCAA meeting as I am starting a new bible study at the Carol Vance Unit that very night. By the way, I am starting class No. 67 and have been doing this about 20 years. Our recidivism rate for our graduates is only 8 percent (not 24 percent for similar inmates) so I am still trying to cut down on crime. Let me congratulate you for the wonderful work TDCAA does for all the prosecutors in Texas. As one who had a little something to do with the start-up, let me say thanks. Keep up the great work. I still read the articles in the journal. They are excellent. Wish we had had all this good education back in my eight years as an assistant and 14 more as Harris County DA. You all done good. Keep me on the list.”
    Thank you, Carol. You are an inspiration.

A crime writer update
We have some talented fiction authors in our membership, and I like to keep you up-to-date on their work. Jay Brandon, an appellate prosecutor in the Bexar County CDA’s Office, has written by our count 19 books, most of them mysteries. His latest, Against the Law, is terrific. The protagonist is a former prosecutor, Edward Hall, who goes back to court to defend his sister when she is accused of killing her husband. The mystery keeps you guessing until the end—Jay does a terrific job of setting up several possible perpetrators.
    As a professional writer in his day job, the book is (unsurprisingly) really well-written. And the story is set in the Harris County Criminal Courts Building, pre-Hurricane Harvey. Jay’s characters are well-developed, and the story is a page-turner. Best of all, his publisher just gave Jay a contract for a sequel.
    You can buy Against the Law on Amazon. My favorite line: “Secretly criticizing is an addiction. You can’t restrict it.”

Criminal Justice Reform Phrase Guide
Another regular update I like to offer is on trends in criminal justice language. Popular phrases from the recent past include “evidence based,” “evidence informed,” and “deep dives.”
    Well, turns out someone has just printed a guide to politically correctcriminal justice phraseology. You can find it at https://opportunityagenda.org/explore/resources-publications/criminal-justice-reform-phrase-guide. The guide offers a way to take some normal criminal justice vernacular and turn it into a “people first” term, which is a current effort in all corners of our culture, including at the Texas legislature. So “ex-cons” become “people who have paid their debt to society.” “Bad guys” are now “people charged with or accused of a crime.” A “prostitute” is a “sex worker.” You get it; people-first language tries to avoid judgment.
    Some of the recommendations are a little more nuanced. For instance, the author suggests that people should avoid making distinctions between violent and non-violent crime, as that will slow down broad-based reform efforts. So, instead of talking about “nonviolent drug offenses,” people who are reformed-minded (see what I did there? I’m using people-first language!) should talk instead about “appropriate offenses and less serious offenses.” And we should avoid talking about “law and order,” and instead speak of “accountability, rehabilitation, restoration, equal justice, and due process.” I think this last group of suggestions is going to take more time to “unpack.”
    
Square One Project
And trading on the phraseology theme, a new nonprofit called the Square One Project promises to “re-imagine” criminal justice. (Read about it at www.squareonejustice.org.) This is a new effort by the established reform organizations in criminal justice, the John D. and Catherine T. MacArthur Foundation and the Laura and John Arnold Foundation, and it starts with an intriguing question. “If we start over from ‘square one,’ how would justice policy be different?” I’m in. It sounds like a great way to look at issues that the system has struggled with for years.