January-February 2011

Thanks to those who have served

Rob Kepple

TDCAA Executive Director in Austin

November led to many changes in our state’s political leadership, as well as some changes in the state’s prosecutor leadership. Criminal district attorneys run in gubernatorial election years (whereas district and county attorneys run in presidential election years), and so through retirement, the election, or the special election process, a number of prosecutors will step down at the end of December. They deserve our thanks for their work protecting the public: Geoff Barr (CDA in Comal County); Bill Bennett (CDA in Madison County); Joe Black (CDA in Harrison County); Richard Clark (CDA in Yoakum County); Leslie Poynter Dixon (CDA in Van Zandt County); Rick Harrison (CDA in Kaufman County); Anna Jimenez (DA in Nueces County); Barry Macha (CDA in Wichita County); Judge John Roach (CDA in Collin County); John Segrest (CDA in McLennan County); and Kurt Sistrunk (CDA in Galveston County).

And another farewell to Joe Grubbs (C&DA in Ellis County) and Bobby Lockhart (CDA in Bowie County), both of whom are taking a seat on the bench in their respective jurisdictions.

We hope that you all will continue as associate members of the association and honored alumni!

And welcome to these newly elected prosecutors

A number of new prosecutors will take office in January: Richard Countiss (CDA in San Jacinto County); Bill Helwig (CDA in Yoakum County); Christopher Martin (CDA in Van Zandt County); Michael McLelland (CDA in Kaufman County); Abelino Reyna (CDA in McLennan County); Brian Risinger (CDA in Madison County); Jack Roady (CDA in Galveston County); Jerry Rochelle (CDA in Bowie County); Maureen Shelton (CDA in Wichita County); Mark Skurka (DA in Nueces County); Coke Ward Solomon (CDA in Harrison County); Jennifer Tharp (CDA in Comal County); and Gregory Willis (CDA in Collin County). I also want to congratulate Jo Anne Bernal (CA in El Paso County), who has been appointed to replace Jose Rodriguez, who will begin his first term in the Texas State Senate. If you haven’t already done so, take time in January to welcome the new prosecutors in your neighborhood. I am sure it will be appreciated, and I bet there will be a few questions for you as the new folks get their offices running at full speed.

The Prosecutors’ Encyclopedia

Our prosecutor friends at the New York Prosecutor Training Institute (NYPTI) have been working on technology to support their prosecutor community through the Web. As their project developed in the last couple years, they realized that their vision of a Web-based home for prosecutor resources was bigger than just one state.

This fall NYPTI has launched the Prosecutors’ Encyclopedia, which you will find at www.MyPros-ecutor.com. The PE is a free resource to prosecutors in the “wiki” format, with two major differences: It is open only to prosecutors, and it cannot be edited anonymously.

To date, the PE contains thousands of expert witness transcripts, commentaries from fellow prosecutors, cases summaries, discussion forums, and briefs. The key, of course, is that any prosecutor can add additional information to be shared across the country.

The Web platform is powerful. The Prosecutors’ Encyclopedia contains every federal and state criminal case since 1970 in a searchable format powered and updated by VersusLaw; features a database of expert witnesses with videos of actual testimony; auto-detects case citations in any articles, memos, or briefs uploaded to the site; and serves as a nationwide directory of prosecutors and expert witnesses.

To join the PE, go to the website and click on “request an account.” You will need to complete the user information as instructed. Once you have logged in and given it a spin, let us know what you think!

DWI Summit in review

On November 12, TDCAA, with the generous partnership and work of folks at the Anheuser-Busch Companies, put on the second DWI Summit, Guarding Texas Roadways. This live and interactive training took place all around the state at local Anheuser Busch facilities that had the Busch Satellite Network feed, and more than 1,100 Texas prosecutors and law enforcement officers attended. In addition, this year’s summit included some 400 prosecutors and cops in New Mexico and Missouri.

As many of you recall, the first summit in 2008 energized folks across Texas to be more proactive in DWI enforcement and to actively explore blood draws in securing vital evidence of suspects’ intoxication. The 2010 summit built on the success of the first, with our faculty focusing on the growing strategy of no-refusal weekends and best practices to fight DWI as we head into the holiday season.

I want to thank W. Clay Abbott, TDCAA DWI Resource Prosecutor, Richard Alpert, assistant CDA in Tarrant County, and Warren Diepraam, assistant DA in Montgomery County, for doing an outstanding job in front the cameras. And I want to extend a big thanks to Sarah Wolf, our communications director; Michael Bomar, assistant meeting planner; Dayatra Rogers, registrar; and Andrew Smith, book sales manager, for flawlessly executing the game plan that registered attendees, shipped off books and supplies, and readied the “talent” for broadcast. It was a monster job, and they made it look easy! Y’all have a great team working for you.

Thanks, Michael

The one downside to having such a talented group around here is that they tend to get noticed and snatched away. It didn’t take long for the folks at the Wichita Falls Anheuser Busch distributorship to notice that their hometown girl, Michael Bomar, was pretty dang good at her job at TDCAA. She is fairly new and all, but the term “diamond in the rough” comes to mind. They made her an offer that she just couldn’t refuse, so she is leaving TDCAA to start her new job in Wichita Falls in December. Thanks, Michael, for your excellent work!

Calling the usual suspects

Every now and again the news media shows an uptick in interest in the death penalty. There was a big push to expose flaws in the system in the 1990s which culminated when then-Governor George W. Bush ran for president in 2000. The advance of post-conviction DNA testing has spurred on the anti-death penalty people in their quest for the Holy Grail:  the innocent person who has been executed. With it has come another spike in media coverage.

Here is how it plays out at TDCAA. We get a phone call from some writer (the most recent was from someone doing a story for the International Bar Association’s publication) who is seeking a comment from a prosecutor in response to “all of the problems with the death penalty.” Invariably, the article is already written and the writer is on a deadline (we are usually given an afternoon to respond) to get some comments to provide the necessary “balance.”

Our response is two-fold. First, as you know, TDCAA does not speak for prosecutors. A reporter may want one-stop shopping when it comes to prosecutors, but we have 335 independently-elected prosecutors who can speak for themselves. If journalists want to know what you think, they need to take the time to ask you. We encourage them to call their local prosecutor and others around the state. My bet is that doesn’t happen much because doing so takes a lot of work, and your comments aren’t really central to the story, are they? The writer is just looking for a throw-down comment or two.

Second, I encourage the reporter to ask our bosses—ordinary citizens—how they feel about the death penalty these days. After all, our job is to enforce their law, and we take the job seriously. Isn’t the important opinion that of the general public?

And that may be the last thing they want to do. Even with all of the recent publicity concerning DNA exonerations, Gallup reports that 64 percent of Americans continue to support the death penalty for those convicted of murder, while 29 percent oppose it. Significantly, that trend has not changed in the last seven years, when exonerations have been the most frequent. When given the choice between death and life without parole for murder, the public tilts in favor of death by a narrow 49- to 46-percent margin. Again, this number has not changed in the last seven years. Finally, 49 percent of Americans believe that the death penalty is not used enough, while 18 percent say it is used too much. Twenty-six percent fall into the “just right” category. For the full Gallup report, go to www.gallup.com/poll/ 144284/support-death-penalty-cases-murder.aspx.

One other poll I’d like to mention is one from the Angus Reid Public Opinion service, which reports in its survey that 83 percent of Americans support the death penalty for murder. What is significant about this poll is that 81 percent of those polled—those who overwhelmingly supported the death penalty—believe that innocent people have been executed in the United States. (So much for the Holy Grail?) You can find the Angus Reid poll at www.angus-reid.com or on our user forums at www.tdcaa.com.

Prosecutors standing up for the State

Speaking of the quest for the Holy Grail, you may have heard about the awkward affair that took place in an Austin district court a couple months back regarding the Cameron Todd Willingham case. That is the death penalty case out of Navarro County that has drawn a lot of attention over arson investigations and the related science.

Out of the blue, a proceeding styled as a court of inquiry was filed in an Austin court. The fact that a judge in Austin would entertain a court of inquiry regarding a death penalty case out of Navarro County in which the execution took place long ago should raise some red flags for those committed to following Texas criminal procedure, but hey, they don’t call it a “court of injury” for nothing. The lawyers handling the case saw fit to serve the CDA in Navarro County, Lowell Thompson, who was not the prosecutor in the original case, and “invited” some other state officials to attend if they wanted to.

I’d like to congratulate Lowell for stepping up and doing his job as the attorney for the state. It was pretty clear that the judge and the attorneys who filed the petition were hell-bent on having a public show—indeed one observer correctly predicted that no matter what, if a certain out-of-state celebrity lawyer and cameras were present, there would be some speechmaking. In the face of the throng, Lowell presented his motions asking that the law be followed and that a different judge be appointed to the case. Not surprisingly, the court ruled that Lowell, although served in the case, didn’t have the right to represent the State after all. He was summarily dismissed as the attorney who could formally represent the state. As the popcorn was being served to the eager audience (I made that up), Lowell went to the Third Court of Appeals and filed a petition for writ of mandamus halting the show. After all, it was more of a show than a real courtroom proceeding.

On the heels of the Austin court of inquiry came the odd pre-trial hearing in Houston in the death penalty case of John Edward Green. A district judge in Houston decided to allow the defense to graze the anti-death penalty landscape with general testimony and speechmaking concerning past exonerations across the country. District Attorney Patricia Lykos seemed to shock the defense and the judge by simply asking that the hearing be confined to things relevant to the case at hand. When the judge took the position that “the show must go on,” the state’s attorneys refused to take part, standing mute. It did not take long for the Court of Criminal Appeals to halt this hearing as well, inviting the parties to brief the court on the propriety of the procedure.

Thanks to Lowell and Judge Lykos for being the calm and cool voices that simply ask that the law be followed. It may not seem popular or expedient to do that at times, but it is the duty of the state’s attorney to ask that the law be followed as we examine individual cases. These prosecutors stepped up.

Changes with the AG’s prosecutor assistance

The Attorney General has announced some changes at the Prosecutor Assistance Unit. Deputy Attorney General for Criminal Justice Eric Nichols has announced that he is leaving the office to return to private practice. He will be replaced by Don Clemmer as the Acting Deputy Attorney General for Criminal Justice. Many of you know Don from his days as a prosecutor in the Harris County DA’s Office, as well has his work for the last 15 years with the AG.

Nichols, the 2010 recipient of TDCAA’s Lone Star Prosecutor Award, has long been a friend of Texas prosecutors and has done a great job of helping y’all when you most needed it. Thanks, Eric—you will be missed.