Executive Director's Report
May-June 2009

The future of the Annual Criminal and Civil Law Update

Rob Kepple

TDCAA Executive Director in Austin

The forecast for future annual conferences: great training, affordable registration fees, discounted hotel rates, and breezy and sunny weather with a chance of hurricanes. Here’s the full story.

In the past few years, we have had one near-miss and another hurricane-related wash-out of our big seminar, historically held in September on the coast. After the two cancellations (in Corpus three years ago and in Galveston in 2008) we hosted make-up annuals in Corpus and Austin, respectively, and had pretty sizable crowds. Given two hurricanes in three years, though, we needed to explore other options for the conference in terms of location and time of year.

Because this conference usually attracts about 1,000 attendees, speakers, and staff, we are limited in our hotel choices; not many places can accommodate that crowd. Plus, we are further limited in hotel options because we like to offer state rate to our members with as few add-ons (such as parking and Internet fees) as possible. In the past, only three cities (Galveston, Corpus, and South Padre) have worked with us on all points—as long as we plan our conference during the cities’ off-season (September or later, the tail end of hurricane season).

At the Annual Criminal and Civil Law Update in Austin this last January, Erik Nielsen, our training director, and W. Clay Abbott, our DWI resource prosecutor, polled the audience concerning the future of the Annual conference. We asked 1) if you preferred to move the conference away from the coast, 2) if you could tolerate the increase in hotel cost that would entail, and 3) if you wanted the conference at a different time of the year.

Your answer by a resounding majority: “We are fine with the coast during hurricane season, thank you very much.” Most conference attendees preferred coastal spots for the Annual conference but also ranked Austin, San Antonio, and Fort Worth high on the list as possible venues. But here is the kicker:  Our members have a strong preference for state rate at hotels; in fact, attendance at our conferences could be hard if hotels get too expensive. Apparently, folks don’t mind the inconvenience of a hurricane every now and then as long as hotel rates are low.

Now that the tribe has spoken, it looks like we will be stay with the coastal cities for state hotel rates and the waterfront locations you want. If we can get good deals inland from time to time, we will host conferences there, but it looks like we will be heading to the coast in September, hurricanes notwithstanding, for the foreseeable future.

John R. Justice Student Loan Repayment Assistance

As you know, the John R. Justice Student Loan Repayment Assistance Act has passed Congress. The National District Attorneys Association is working to fund it. Unfortunately for prosecutors with student loans, funding for the bill did not make it into the recently passed stimulus package. We now have to hope that the funding can find its way in to the 2009–2010 federal budget. We’ll keep you updated on any changes.

The National Academy of Science and Forensics

By now you have read the many newspaper articles about the study released in February by the National Academy of Sciences. As with most reports critical of criminal investigation and prosecution, there was plenty of pre-release publicity concerning potentially flawed DNA, fingerprint, bite mark, and other forensic evidence collection and analysis methods. To actually read the report, you will need to skim samples of it or actually buy it at http://books.nap.edu/catalog.php? record_id=12589.

The report’s general tenor seems to be that forensic investigations need to be conducted by trained analysts in an independent setting. Different media outlets have plucked out portions of the report to criticize certain areas, such as fingerprint analysis, bite mark analysis, and DNA test procedures.

To that end, I thought you should be armed with a copy of the National District Attorneys Association statement concerning the NAS report. It is a pretty good summation of how prosecutors around the country feel about the subject:

Statement from the National District Attorneys Association Regarding the National Academy of Sciences February 2009 Study

A recent study released by the National Academy of Sciences includes a few notorious cases in which established forensic protocols were not followed or otherwise valid scientific methods were not accurately reported to juries. It appears the main problem in these cases was not bad science. Rather, good and well-established scientific techniques were used improperly or their ability to identify suspects was grossly over-exaggerated. In other words: Good Science, Bad People.
These mistakes have occurred. They are extremely rare but they are unacceptable.
Prosecutors are the one party in a trial whose sole allegiance is to the truth.
No prosecutor wants an innocent person in the defendant’s chair, much less wrongly convicted. We hope the NAS study will be an opportunity to re-dedicate resources that go into the front end of criminal investigations including training on the correct collection, analysis, and admissibility of forensic evidence.
Investments should be made in money and technology that will help ensure that police arrest and we prosecute the right people before they get convicted. Law enforcement officers must be trained to recognize and collect critical forensic evidence. Forensic laboratories must be adequately funded and their practitioners well-trained. Prosecutors who present that scientific and technological evidence also must be well-trained to understand its proper scope before they present it to the jury.
In other words: an ounce of prevention is still worth a pound of cure thus ensuring juries are able to reach sound and just resolutions in criminal cases.
The larger question resulting from the NAS findings is whether the study will advance commitments to better equip, train, and fund good science and good people, or divert that money and time to focus on the rare but unacceptable injustices that occur when forensic science is misused by any criminal justice practitioner whether on the part of the State or the defense bar.
There is an urban myth that prosecutors measure success largely by the number of years to which felons are sentenced to prison. Instead, we succeed when we are contributing to a safe and secure community where the residents feel justice is fairly administered. That is the whole nature of local prosecutors who are accountable to their local communities.
Most prosecutors live where we encounter both the families of victims and the families of defendants—in the supermarket check-out lines and coffee shops. They hold us to answer for whether we helped bring real justice to every case. That is why it is so important to NDAA that resources be targeted to those areas that will help achieve justice in our communities. This should be the goal of all criminal justice practitioners.

New NDAA Executive Director

The NDAA has announced that it has selected a new Executive Director. He is Scott Burns, a longtime district attorney in Iron County, Utah, and former deputy director of the Office of National Drug Control Policy. He was selected from a pool of more than 60 applicants.

Joe Cassilly, NDAA President, said that he was confident in Burns’ personal experience as a prosecutor, his years in high-level Washington posts, and his personal commitment to the mission of prosecution.

Burns himself says, “Prosecutors measure their success not by conviction rate but by whether justice is done in their communities and, as importantly, whether the people in those communities feel that justice is being done.”

Welcome aboard, Scott!

Dressing for a mess

We all have had situations in which witnesses have appeared in court dressed, well, let’s say, inappropriately. What can be even more perplexing to defense attorneys is why their clients dress as they do for one of the most important days in their lives.

This situation takes the cake. Roy DeFriend, County and District Attorney in Limestone County, reports that he recently pled out a defendant for what we call statutory sexual assault (consensual sex with a 15-year-old girl). The 50-year-old defendant was very properly dressed for his morning court proceeding in which he was placed on deferred adjudication. He needed to report to the probation department in the afternoon, however, for which he changed into something a little more comfortable during the lunch break: a tee shirt, overalls, and a baseball cap, which said, “Slut Hunter” on the front. The probation officer, not amused, marched the defendant to court. The judge promptly ordered him to immediately start serving jail time as a condition of his supervision. ✤