January-February 2013

Welcome, newly elected prosecutors!

Rob Kepple

TDCAA Executive Director in Austin

The 2012 election cycle brought plenty of changes to the profession of criminal prosecution. Texas is unique in that the state constitution devolves the potent power of criminal prosecution to 334 locally-elected county attorneys, district attorneys, and criminal district attorneys. Of that 334, it appears that we set a modern-day record: Counting those who were recently appointed in 2012 to take over for those retiring a little early, we have 70 newly-elected prosecutors who took the oath of office on January 1, 2013.
    With district attorneys, county attorneys, and county attorneys with felony responsibility all up for re-election, we run the gamut when it comes to jurisdiction size. We welcome a new district attorney to the largest jurisdiction in Texas, Mike Anderson, who will take over in Harris County. (It tops out in the latest census at 4,092,459 citizens.) Our winner of the most modest jurisdiction, population-wise, to get a new prosecutor? Kenedy County, population 416, welcomes Allison Strauss as the new county attorney (though it was close, with Kimberly Kreider-Dusek serving the 707 citizens of McMullen County and William Weidman serving the 929 citizens of Roberts County).
    Your challenge, if you are a seasoned prosecutor, is to welcome the new people into the profession and give them a hand. The learning curve can be steep, and as you know from experience, there are always some surprises waiting for the those walking into a new office for the first time. We had a great showing at our Newly-Elected Boot Camp held in December in conjunction with the Elected Prosecutor Course, which should help, but a call or two from an experienced neighbor in the next couple months would probably be welcome.
    TDCAA will continue to be there to help all the new members adjust. For those who came to Boot Camp and for the new prosecutors who missed that training, we will be having another session just for you in February. Keep an eye out for your invitation.
    Finally, who are the new folks? Check out the list below. And if we missed anyone, which always seems to be the case in such a big membership, please let us know! The new edition of our Directory of Texas Prosecutors and Staff is being updated as we speak, and we want to be sure to get everyone before we go to print this spring.

List of new elected Texas prosecutors

(listed alphabetically by county)
Timothy Jay Mason, Andrews County & District Attorney
Art Bauereiss, Angelina District Attorney
Jana Lindig, Bandera County Attorney
Jose L. Aliseda, Jr., Bee County District Attorney
James Nichols, Bell County Attorney
David Allen Hall, Blanco County Attorney
Jarvis Parsons, Brazos County District Attorney
Luis V. Saenz, Cameron County District Attorney
Shalyn Leigh Hamlin, Castro County District Attorney
Rachel L. Patton, Cherokee County District Attorney
Kelley Denney Peacock, Cherokee County Attorney
Jay E. Johannes, Colorado County District Attorney
Edmund J. Zielinski, Cooke County Attorney
Dustin Hugh Boyd, Coryell County District Attorney
Michael S. Munk, Dawson County District Attorney
Michael Scott Layh, Ector County Attorney
Michael Alan Nash, Erath County District Attorney
Carol Eugene Stump, Franklin County Attorney
Christopher G. Nevins, Gillespie County Attorney
John Franklin McDonough, Gray County District Attorney
David L. Wilborn, Guadalupe County Attorney
Judge Mike Anderson, Harris County District Attorney
Robert L. Elliott, III, Hartley County Attorney
Mark F. Pratt, Hill County District Attorney
Richard David Holmes, Hill County Attorney
Christopher E. Dennis, Hockley County District Attorney
Anna Hord, Hockley County Attorney
Lori J. Kaspar, Hood County Attorney
Will Wylie Ramsay, Hopkins County District Attorney
Michael Brad Dixon, Jack County Attorney
Teresa Todd, Jeff Davis County Attorney
Carlos Omar Garcia, Jim Wells County District Attorney
Herbert B. Hancock, Karnes County Attorney
Allison Strauss, Kenedy County Attorney
Billy Lanoy Ballard, Kent County Attorney
Scott F. Monroe, Kerr County District Attorney
Scott A. Say, Lamb County District Attorney
Logan Edward Pickett, Liberty County District Attorney
Wiley B. “Sonny” McAfee, Llano County District Attorney
Angela Rene Smoak, Marion County District Attorney
Denise M. Fortenberry, Matagorda County Attorney
Kimberly Kreider-Dusek, McMullen County Attorney
Thomas Ross Roberson, Menard County Attorney
William W. Torrey, Milam County District Attorney
Claburn Vernon Riddle, Jr., Montague County Attorney
Marcella Paige Williams, Montague County District
J. D. Lambright, Montgomery County Attorney
Barrett Dye, Ochiltree County District Attorney
Arvel R. Ponton, III, Pecos County District Attorney
Charles Miller Elkins, Reagan County Attorney
Todd P. Steele, Refugio County Attorney
William Philip Weiman, Roberts County Attorney
William Coty Siegert, Robertson County District Attorney
Kenneth H. Slimp, Runnels County Attorney
Randall Robinson, San Saba County Attorney
Kenneth B. Florence, Shelby County District Attorney
Andrew Weldon Lucas, Somervell County Attorney
Omar Escobar, Jr., Starr County District Attorney
Kitha Jo’Shae Ferguson-Worley, Terry County District
Allison Palmer, Tom Green County District Attorney
Bennie L. Schiro, Trinity County District Attorney
Julie Renken, Washington County District Attorney
Renee Ann Mueller, Washington County Attorney
Marco Montemayor, Webb County Attorney
Ross M. Kurtz, Wharton County District Attorney
Leslie A. Standerfer, Wheeler County Attorney
Jana Duty, Williamson County District Attorney
Doyle E. Hobbs, Jr., Williamson County Attorney
Daynah Jolene Fallwell, Wilson County Attorney
Dee Hudson Peavy, Young County District Attorney

Editor’s note: With so many new electeds, we’re sure we’ve missed a few by accident. Please contact Lara ­Brumen at 512/474-2436 or [email protected] to make any additions or corrections.

A law review author you might actually read
Our keynote speaker at the Elected Prosecutor Conference was a law professor. Now the prosecutors who attended the conference were polite; when they saw Professor Alafair Burke speaking on the topic “The Ethical—Yet Still Human—Prosecutor,” they kept their groans to themselves. I know this because after the session many told me that they dreaded what sounded like a professorial diatribe, only to find out that it was one of the best presentations they had heard in a long time. And they insisted that we bring Professor Burke back to Texas soon, which we hope to do.
    If you have read the report, “Setting the Record Straight on Prosecutorial Misconduct,” (the front page of the TDCAA website, www.tdcaa .com, has a link), then you are already acquainted with some of Professor Burke’s work. Burke, a former prosecutor and now a law professor at Hofstra University, has been taking up for prosecutors in the current climate of prosecutor-bashing. Indeed, she has been riding the talk-show circuit as the opposition to those who condemn prosecutors as inherently unethical and dishonest lawyers who seek to win at all costs.
    Burke’s theory: What if prosecutors were human? Humans approach every decision they make with a point of view and a set of biases. People tend to look for confirmation that an earlier decision was correct, and everyone can find themselves discounting information that tends to be contrary to their beliefs. Her theory is simple: If we approach our work knowing that these issues of “cognitive bias” can indeed impact us, like they do everyone, we can do a better job as a minister of justice. For more on her concept, read her law review article on the subject at http://scholarship.law.wm.edu/wmlr/vol47/iss5/3.
    But even Professor Burke acknowledged that few people rarely get all the way through a law review article. Wanting to have a readership, she hedged her bets and also became quite a novelist. She is the author of two series of crime novels, one about New York Police Department detective Ellie Hatcher and the other about Portland, Oregon, prosecutor Samantha Kincaid. If you’d like to read something she has written that doesn’t sound like a law review article, head over to http://alafair burke.com. And yes, Dave Robi-cheaux fans, she is related to James Lee Burke.

The independent—and courageous—prosecutor
Every now and again we recognize a prosecutor who has taken a stand. And I am not talking about taking a stand on any particular public policy issue, crime, or punishment. I am talking about taking a stand for the rule of law. This often comes up when there is friction between a prosecutor and a judge as to the proper course of action or who has the duty to make a particular decision. We know that there is friction when an action is entitled: “State ex rel. [insert prosecutor name here] v. [insert judge name here]”.
    Some of these have been big cases: State ex rel. Turner v. McDonald, 676 S.W.2d 371 (protecting the State’s right to a jury in felony cases); State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (protecting an elected prosecutor from disqualification due to the disqualification of an assistant prosecutor); and State ex rel. Curry v. Carr, 847 S.W.2d 561 (protecting the State’s right to jury in misdemeanor cases).
    I know from experience that prosecutors don’t take mandamus actions lightly, but there are times when the issue is important and there is no other way to do the job but to stake out a position and fight for it. So you should probably take a look at the recent State ex rel. Tharp v. Waldrip, No. AP-76,916 (Tex. Crim. App. Nov. 14, 2012). In this case the Comal County Criminal District Attorney Jennifer Tharp contested her district judge’s attempt to discharge a jury and proceed to punishment by the court when the defendant pled guilty to a jury. At issue in this felony DWI case was the State’s perfectly good and proper request for a deadly weapon finding, which the judge had signaled in pretrial procedures he was not inclined to enter. Quite simply, that wasn’t the court’s issue to decide under the law, and the prosecutor decided to stand up for the rule of law in this case.
    Even more recently, the Walker County Criminal District Attorney David Weeks had to call one big time-out during a capital murder trial to challenge a clearly erroneous jury charge the court had drafted. This was certainly an extreme remedy, but the danger to a just verdict under the law was great and there would be no do-overs for the State. Take a look at State ex rel. Weeks v. Keeling, No. 10-12-0043-CR (Tex. App.—Waco, Dec. 12, 2012). In a must-read opinion offering some insights into the limitations of a mandamus action, the Tenth Court of Appeals ultimately decided that the formulation of the jury charge was not strictly a ministerial action, such that a mandamus would be an available remedy for a clearly incorrect charge.  However, David didn’t come away with nothing: While refusing to intervene, the court dropped a footnote voicing the “strong” opinion that the trial court was wrong in how it had formulated the charge. As of press time, the Court of Criminal Appeals has accepted David’s appeal of the lower court’s denial of the mandamus. Keep an eye on TDCAA’s weekly case summaries for the CCA’s final resolution of the matter.
    Of course it is always easy to go along and get along, but sometimes doing the job means standing up for what you believe the law to be. So thanks to Jennifer and David for your willingness to exercise your independence, and congratulations on helping to write some good law.
Guarding America’s Roadways
Congratulations to W. Clay Abbott, our DWI Resource Prosecutor, on his live, onscreen performance at the November 15 DWI Summit entitled Guarding America’s Roadways. This show was the third in a series of satellite broadcasts from the Anheuser-Busch television studios in St. Louis to A-B distributors all over the country. This year, distributors in 14 states participated in the four-hour training event, which featured caselaw updates, the latest on blood draws, and a great presentation on crash scene preservation and investigation.
    I want to thank Sarah Wolf, TDCAA Communications Director, for her hard work behind the scenes to make the cast look so dang good and sound so dang smart; Kaylene Braden, TDCAA Receptionist, for keeping Clay in the right place at the right time; and Jennifer Vitera, our Texas District and County Attorneys Foundation Development Director, for working so hard to develop the funding sources to make the DWI Summit a success. All totaled, over 1,400 people from every corner of the country participated in the training. Well done.

That is the title of an article floating around the Internet that purports to give legal advice to folks in Washington State in the wake of the legalization of marijuana. You can find this blogger’s post at http://spdblotter .seattle.gov/2012/11/09/marijwhatnow-a-guide-to-legal-marijuana-use-in-seattle.
    Actually, it is pretty good reading. The blogger opines that a pot-smoker probably cannot be a cop, and that the driving while intoxicated (DWI) laws continue to apply to those impaired because of marijuana. He does raise a good question about K-9 units and probable cause to search based on a dog sniff—does the dog “hit” on all drugs, or can you tell the dog, “Not the pot, Duke—only the coke”?
    My favorite Q and A from the article:
Question: “Seattle police seized a bunch of my marijuana before I-502 passed. Can I have it back?”
Answer: “No.”
    Well, I guess it doesn’t hurt to ask, does it?