Rob Kepple
I am happy to report that the revamped TDCAA training team has hit the ground running. Brian Klas, formerly of the Williamson County Attorney’s Office, is our new Training Director. Brian has a wealth of experience from his office, as a TDCAA speaker, and as a TDCAA faculty advisor. Joining him as our Meeting Planners are Patrick Kinghorn and LaToya Scott. Of course you all know Patrick, as he has been working for TDCAA part-time to support our Border Prosecutor Unit training and other TDCAA events. LaToya comes to us from the world of hotel management and most recently as the meeting planner at the Texas Association for Home Care & Hospice. Please welcome them next time you see them at a TDCAA seminar!
Use-of-Force Summit report
In November, TDCAA hosted a summit for prosecutors on the investigation and prosecution of police use-of-force cases. Thanks to a supplemental grant from the Court of Criminal Appeals, we were able to gather 40 Texas prosecutors who specialize in such cases, as well as folks from the Department of Justice in Austin. The purpose was to examine the “state of the State” when it came to such cases and to discuss future training and activities that may be needed moving forward. You can read a copy of the Summit Report on our website; just look for this article in this issue of the journal.
One of the reasons we wanted to gather was to evaluate how we handle these cases in light of the national criticism that prosecutors treat these cases differently from other criminal cases. There was quick agreement by the participants on one thing: Police use-of-force cases are handled differently because they are different. Peace officers have an affirmative duty to get involved when they think that crime is afoot. Indeed, the general public hires them and expects them to do just that. Furthermore, officers have specific training on use of force, have “rules of engagement,” are authorized to use force in certain circumstances, and are allowed to rely on the general rules of self-defense.
All that said, the summit participants agreed that the public has the right to expect a thorough, fair, and transparent process. This may be one of those areas in which prosecutors are advised to pay attention to how their actions are perceived, as the perception of injustice in the general public (whether that injustice actually exists) can injure our ability to seek justice on a day-to-day basis in the courthouse.
One of the themes that emerged was the need for advance preparation. First, a prosecutor’s office will be in a better position to handle such a case if the office has a history of outreach and openness in the community. In addition, prosecutors and law enforcement need an advance plan as to who will investigate officer use-of-force cases. Some departments insist on investigating their own officers, but there was widespread agreement that the use of an outside agency is the best practice.
It was also clear that different offices handle these cases in different ways. There was plenty of good discussion on a number of questions: Do you bring in special counsel? Do you contact the family of the deceased? Do you go to the scene? If you go to the scene, what is your role? Do you insist on an officer “walk-through” of the crime scene? What information do you release to the public? Do you release video if it is favorable to the officer? Should the officer be given a chance to view video of the event before making a statement? Should the prosecutor make a recommendation to the grand jury? If there is a no-bill, what do you release to the public? If you go to trial on one of these cases, what are the issues a prosecutor will face?
Summit participants discussed many ideas for moving forward, including a track at this year’s Annual Criminal and Civil Law Update devoted to the investigation and prosecution of these cases. Be sure to stay tuned for future discussions and training on these tough cases, and if after reading the report you have additional perspectives you want to share, please contact me at Robert [email protected].
TDCAA training hits new highs
We at TDCAA pride ourselves in serving Texas prosecutors by providing timely, relevant, and accessible training. And it seems each year the demand for training grows. The TDCAA Training Committee, Investigator Board, Key Personnel Board, and Victim Services Board do a great job of designing that training. The numbers for Fiscal Year 2015 training are in, and we have smashed all previous records for number of attendees and per-person hours of training delivered. In FY 2015, we had 8,713 attendees at TDCAA courses. (The previous record was 6,642 in 2013.) We delivered 59,066 hours of training, beating the previous record of 53,897, also set in 2013.
The difference-makers? Online Brady and ethics training, growing Prosecutor Trial Skills Courses, a huge Annual Update, and Border Prosecutor Unit training. Most importantly, the various committees and TDCAA staff have continued to bring quality training to you. To those committee members and staff, thanks for all you do.
The system’s not broken
If you keep up with the various criminal law journals, news articles, and advocacy group missives, you are hearing a constant refrain: The criminal justice system is broken. It occurred to me as I watched the baby lawyers at our Prosecutor Trial Skills Course in January that someone new to prosecution could easily get confused by this consistent message. Here they are, swimming in a sea of cases without enough time or resources to deal with all of the crime on the dockets, yet they hear from the media and elsewhere that somehow the system is broken because we are putting people in jail (well, mostly putting people on probation). But sometimes when the crime is particularly heinous or the victim particularly vulnerable, juries will hit defendants with long (or even life) sentences—then people complain to the media that the State is putting people in prison for unreasonably long sentences. It sure seems like a disconnect between what is really happening in our courtrooms and what some de-incarceration advocates are claiming. As the prosecutor who just got a stiff prison sentence for a violent guy, you were thinking the system was working as the public wants it to. The jury—a group of citizens—had no trouble with such a long sentence for such a dangerous criminal.
Here is the thing: The system today is working exactly the way it was designed to work when the Penal Code and penitentiary system was overhauled in the mid 1990s. Some of us remember when it was really broken in the 1980s: County jails and a small state prison system were overrun with people awaiting trial and those who had been convicted. It was common that convicted felony prisoners would be paroled straight out of the county jail—“parole in absentia” they called it. Heck, often we could try a drug dealer who had never actually gone to the pen on his first two convictions as a habitual criminal. During those dark days of the ’80s, our Legislature reacted to the overcrowding problem by quietly reducing the time served for violent offenders from one-third to one-quarter time. Not exactly a well-thought-out solution. And if you lived in Houston, you remember the night that the Harris County Jail was forced to open the sally port door to let hundreds of people out of an overcrowded jail to just run off into the night. Now that was a broken system.
So the Legislature got a grip on the problem, produced a Penal Code that led the nation in clarity and consistency, beefed up the prison system to house violent offenders, and created the state jail felony to deal with the rest. And significantly, the Legislature created a system whereby the state could track exactly who was going to the pen, why, and for how long. No more “legislation by anecdote.”
For the last 20 years the system has pretty much worked as anticipated, with the Legislature keeping an eye on the whole thing and making adjustments along the way, such as beefing up resources for diversions and treatment and increasing penalties for violent sex offenders, human traffickers, and the like. Last time I checked, Texas juries have continued to use the punishment ranges afforded to them. Check out the two graphics, at right and below, illustrating who is incarcerated in the United States—to a large extent, penitentiary resources are devoted to the incarceration of violent individuals. (You can go to this link, www .prisonpolicy.org/reports/pie2015.html, to read more on these numbers.)
So … once more with feeling … The system is not broken! It is working as intended. De-incarceration advocates may believe that the policies adopted by the Legislature in the 1990s are no longer viable and need to be adjusted. They may believe that violent offenders, who take up the majority of beds in the pen, should no longer face long sentences. They may believe that lots of crimes should be outright abolished. They may want to make improvements and add new procedures to insure justice. Fair enough. Advocating for a change in policy is fine, and a debate on how the system could be adjusted is a healthy thing. Heck, there are many things prosecutors want to change as well, and those changes are usually not about more incarceration. But for all of you who go to court every day with the conceit that you are doing good work to protect the public, rest assured that you are not part of a broken system.
And one more thing. To the “Cut 50” folks who advocate that we cut the prison population in half (and do it quickly): Take a look again at that pie chart and tell the public more about your plans to drastically reduce the time violent offenders serve. You can’t make a significant dent in the prison population without letting these criminals out on the street. At some point we’d sure like to hear a plan for reducing the prison population and keeping citizens safe at the same time.