September-October 2015

The 2015 Legislative Update road show

Rob Kepple

TDCAA Executive Director in Austin

By the time you read this column, we will have wrapped up the 2015 Legislative Update Tour of Texas. It is always fun for us to see what emerges from our audiences as the hot topics of particular interest. This year’s winner? The efforts to crack down on synthetic drugs such as “K2” and “spice.” It was nice to get some new tools to address what has been a real problem in many communities, and as ugly as the legislative process can get, this was some good work by the folks in the big pink building.
    The award for the most groans? New Code of Criminal Procedure Chapter 42A, which is a “non-substantive” revision of the mess that is the current Chapter 42.12. It doesn’t go into effect until January 1, 2017, and it was something that needed to happen someday, but there is always a danger that something substantive did get changed inadvertently. And now we all have to read it and figure out where all of our favorite parts of 42.12 went. A reminder: As we went to press, no one had yet claimed the reward for finding the first substantive mistake in the new chapter. If you think you found one, just give me a call for a chance to win a copy of the new Quick Penal Code Reference 2015 (it makes a great Christmas gift!). Of course, we are hoping to never have to make good on the offer—we’d much rather that the new Chapter 42A came through its revision unscathed.
    One note: A chart showing where pieces of the old Art. 42.12 have been moved in the new Chapter 42A is included in TDCAA’s 2015 editions of Criminal Laws of Texas and Code of Criminal Procedure books.

NDAA summit on ­prosecution integrity
In July the National District Attorneys Association (NDAA) hosted a summit on prosecution integrity in conjunction with its annual meeting. The summit’s purpose was to gather prosecutor delegates from all over the country to talk about the “state of the union” of the profession and to share the proactive steps many prosecutor offices are taking to improve the quality of justice in America.  Over two days, delegates identified some significant efforts on behalf of the profession being made around the country, as well as some areas that are going to require time and resources. In the coming weeks the NDAA will produce a summary of the summit’s discussion points and distribute it to all of NDAA’s state directors so they can in turn pass it along to their respective state prosecutor associations. (FYI, Travis County Attorney David Escamilla is Texas’s NDAA State Director, and Bell County District Attorney Henry Garza serves on the NDAA Board as a Past President.)
    The challenges we face in Texas are by no means unique. In broad terms, the prosecutors in attendance acknowledged that as good public servants, we would just as soon spend our time prosecuting criminals and helping restore victims than responding to the 24-hour news cycle, which can take one ugly case and make it seem like it is the norm across America. But the delegates recognized that public perception can be very important when it comes to public trust, so we not only have to strive to get it right every time, but we also have to build trust in our communities.
    Because prosecutors are busy doing their jobs, the profession as a whole is not as good as it could be at pushing back on false and misleading information that at some point is recited as fact in this echo chamber of 24-hour news, advocacy pieces, and bloggers. An example raised at the summit was the current refrain of America’s “broken criminal justice system!” I tend to agree with the prosecutors at the Summit: There are things that require immediate attention, but the system is far from broken. Indeed, from my 31-plus years in the courthouse and the Legislature, the thing is working pretty much as our policymakers intended when they rewrote the Penal Code in 1993. If the consensus of our state leadership and legislative body is that we now need to change things, fair enough. But totally broken? Not so much.
    There were many great projects discussed at the Summit. From conviction integrity units to community prosecution to training, there is a lot going on around the nation that improves the quality of our work. One intriguing development is the the establishment of the Prosecutors’ Center for Excellence (http://pceinc .org), a research entity associated with the NDAA that promises to bring additional research and scholarship, as well as a prosecutor perspective, to the national debate on criminal justice issues. This is something we sorely need if NDAA is going to truly serve as the “Voice of America’s Prosecutors.”       

Police use-of-force ­prosecutions
As we know, one of the issues swirling in the national discussion of police use-of-force cases is the role of the elected prosecutor. Some have suggested that the local elected prosecutor can’t effectively handle these cases, and many states have seen legislation filed—but not passed—on the matter. Indeed, the Texas Legislature discussed the issue in the context of HB 1369, a bill that had a public hearing in a committee but did not go any farther. The arguments in favor of HB 1369 and such a disqualification relate largely to perception: It just “looks bad” that the prosecutor, who works with the police, also prosecutes the police.
    As a counter to that view, many prosecutors, including Jeri Yenne (CDA in Brazos County) and Phil Grant (First Assistant DA in Montgomery County), discussed the cases they have prosecuted involving police officers as defendants and invited the committee to focus on the law, the cases, and what prosecutors actually do in these situations. Bottom line:  Prosecutors feel that we have a job we were elected to do, we take it seriously, and we feel accountable for how that job is done. And it seems this view is widely accepted around the country.
    So many folks were taken by surprise when New York Governor Andrew Cuomo issued Executive Order 147, which by executive fiat disqualifies all New York district attorneys from the investigation and prosecution of the deaths of unarmed civilians at the hands of a police officer, and it assigns such investigations and prosecutions to the New York Attorney General. (A copy of this executive order is below as an attachment.) Understandably, the District Attorneys Association of the State of New York did not take this very well and pointed out a number of structural and practical problems associated with the order (the DAs’ response is also below). It should be interesting to watch how this plays out in New York. The perception may change, but what will the actual result be? Better investigations or worse? More prosecutions or fewer? More convictions or fewer?

Use of force in Texas
Given the attention police use-of-force cases have generated, the TDCAA leadership thought it was time that our profession took a close look at how we are handling these cases in Texas:  what is working, what is not working, and what we can do better. If we are going to do the job, let’s make sure we are doing it right. So TDCAA applied for and received a grant from the Court of Criminal Appeals to host a summit for a limited number of Texas prosecutors (by invitation only) in November. TDCAA’s Investigation and Prosecution of Police Misconduct Summit will allow some of our most experienced prosecutors who specialize in police misconduct cases to discuss the challenges of the work. Our goal will be to examine the “state of the state” when it comes to these cases. We hope to identify good strategies and practices, as well as problems that we frequently encounter.
    I apologize in advance if you specialize in these cases and didn’t get an invite; we have a limited grant so we had to keep the program small. But our expectation is that this summit will lay the groundwork for future training, so there will be lots of opportunities to plug in. If you want more information, give me a call at 512/474-2436.       

“I’m drunk, officer, but my car is driving itself!”
In an exercise in forward-thinking, the Texas A&M Traffic Institute recently held a workshop for law enforcement on what will certainly be a gnarly issue: traffic accidents involving AVs (automated vehicles—cars without drivers).
    This could get complicated. No firm recommendations are available yet, but the questions were good: If an AV causes the wreck, who gets the ticket? What if the person sitting in the driver’s seat is drunk but claims that the car was in complete charge of the “driving task?” What if the AV fails to stop at an accident scene? What data will be available to law enforcement in the event of an AV-related traffic accident?  

A new must-read for prosecutors
We have a lot of talented folks among the ranks of prosecutors, and it is fun to read their works. Many of you have a copy of The Best Story Wins—And Other Advice for New Prosecutors, written by John Bobo, a former Tennessee state assistant prosecutor and now NASCAR Managing Director of Racing Operations. The Best Story Wins is a terrific guide on how to handle yourself as a new prosecutor, and you can still get a copy on Amazon.
    And now, John has broken into the ranks of a top-selling author for his latest work of fiction, Three Degrees from Justice. This book, a No. 1 seller for Amazon Kindle’s Noir Crime Fiction, tells the story of a state prosecutor, Jack Henley, and his efforts to fix a criminal justice system in the wake of his fiancé’s murder at the hands of a parolee. You are promised a read that is “as fierce as it is funny! Justice served pot-boiling hot.” Agreed; a great read for prosecutors and crime novel lovers.

Former prosecutor on the Lottery Commission
Congratulations to Doug Lowe, former Anderson County CDA, on his appointment to the Texas Lottery Commission. Many of you know Doug as an expert in the investigation and prosecution of illegal gambling in Texas, so it only makes sense that Governor Greg Abbott would appoint Doug to the Lottery Commission. Congratulations!

Texas cases garner ­worldwide attention
We all know that Texas has been in the national, and even international, spotlight over cases that have happened here. The high-profile cases can put a lot of pressure on state prosecutors to make the right call. And yes, I am talking about the alligator revenge killing. You have probably watched the coverage on national news: An alligator killed a man who threw caution to the wind and jumped into the Sabine River for a midnight swim. Days later, the alligator was illegally baited and killed by a man who goes by the name Bear. (You can watch the story about this vigilante justice at http://
    Many of you have spent decades trying child abusers, robbers, and worse, but you don’t get a huge number of calls about those cases. Just ask John Kimbrough, the Orange County and District Attorney who fielded calls demanding prosecution of the alligator-killer. Or ask Travis Koehn, the Criminal District Attorney in Austin County, who recently had to deal with allegations of animal cruelty when a local veterinarian killed a cat—with a crossbow. (Here is that story: Perhaps the alligator is a bit less likable than the cat, but these are challenging cases that test a prosecutor’s skill at fairly investigating a case and making the right call based on the evidence. By all accounts John and Travis did a masterful job of handling the cases and the news media and public attention that came with them.