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Executive Director's Report
March-April 2008

“You can’t do that, Dan Moody!”

Rob Kepple

TDCAA Executive Director

Sometimes your daily docket will keep you too busy to look up and see what impact prosecutors have on your state and even the nation.

One former prosecutor and now district judge, Ken Anderson, has taken the time to tell the story of Dan Moody, the former district attorney for Williamson and Travis Counties, who in the 1920s went head-to-head with the Ku Klux Klan. Moody went on to become the state’s attorney general and governor, but he arguably did his best work inside the rail of what is now an historic courtroom in Georgetown.

Ken’s work started with a young-adult book titled You Can’t Do That, Dan Moody!, which is still widely available at most online bookstores. It followed with a play in two acts by Ken and Tom Swift, starring Dan Gattis, a former assistant district attorney and state representative from Georgetown. The play, produced for the fifth time in 2007, is performed in the restored courtroom in which Dan Moody first took the Klan members to trial.

The case itself doesn’t sound like an episode of “Law and Order.” It was the usual assault case against some guys for beating up a black traveling salesman accused of adultery. What made the case ground-breaking was that in 1923, no one took active members of the local Ku Klax Klan to trial on that type of allegation. After all, in that day and age the Klan was active in 48 states and had 3 million members—170,000 in Texas alone.

In January, Judge Anderson released the ultimate biography of Moody, Dan Moody: Crusader for Justice. This book finishes the story of the Klan-fighting DA that began in the Williamson County courtroom. As the state’s attorney general and governor, Moody is credited with rallying the public against the Klan and eventually breaking its stranglehold on elected offices around the state. The New York Times declared Moody’s victories the “death knell of Klan domination.”

We know that most of our trials are about doing justice for the victim and our communities. But every now and again you have the privilege of prosecuting a case that may have reverberations for generations to come.

Thanks, Judge, for telling the story of Dan Moody. I guess the next step is film rights.

Federal funding for 2009

It’s never too early to get bad budget news from Washington. Federal funding comes and goes for different programs. You may have a prosecutor whose salary is paid by Byrne funds, and your local domestic violence shelter may exist and offer services with VAWA and VOCA grants. As you know, pass-through funding from the federal government is dependent on the administration’s priorities and the national economy’s health. So here is a run-down of the funding issues at the national level that may trickle down to your neighborhood this year.

The biggest funding issue for the National District Attorneys Association is to keep the doors open at the National Advocacy Center in Columbia, South Carolina. It has been a tough sell this year in Congress to keep that great training facility open. At press time, funding for the NAC is still a possibility, so keep an eye on the TDCAA website for updates. I hope that by the time you read this column, Congress will have agreed to keep the NAC running.

And next year may be bleaker. President George W. Bush’s fiscal year 2009 budget request would cut state and local criminal justice funding by 65 percent and change how the state and local law enforcement programs are funded. You may recall that Congress followed the President’s lead in FY 2008 and cut Byrne Justice Assistance Grants by 68 percent. That meant the loss of some prosecutor and law enforcement positions in Texas and elsewhere. VOCA and VAWA funding, which supports myriad programs aimed at stopping domestic violence and supporting crime victims, did not take a big hit last year. But they are on the block again this year.

Under the president’s plan, the formula and categorical grant programs would be eliminated and reconstituted into four new competitive discretionary grant programs. These programs, which have been broken into a number of different categories for administration and grant application purposes would be thrown into one big bucket. Every program competes for funding out of that one bucket, and the worthy programs get what funding is available.

A number of discretionary grant programs would be abolished, replaced by a new $200 million Byrne Public Safety and Protection Program. It would encompass the Byrne formula and discretionary accounts, drug courts, and about 15 other grant programs under OJP and the COPS office. Last year, the administration proposed funding this new program at $350 million.

The COPS programs, which directly funds police officers on the streets, would be eliminated. Instead, the president proposed a new $200 million Violent Crime Reduction Partnership Initiative to establish multi-jurisdictional task forces in communities with high rates of violent crime. Current juvenile justice and exploited children programs would be consolidated under a single $185 million flexible grant program called the Child Safety and Juvenile Justice Program. It would focus on reducing incidents of child exploitation and abuse (including over the Internet), improving juvenile justice outcomes, and addressing school safety needs.

Finally, a new Violence Against Women Grants program would consolidate the existing VAWA programs into one $280 million competitive grant program. The budget would cap the Crime Victims Fund at $590 million and “withdraw” $2.02 billion from the fund, which would be deposited in the general fund. (Like Texas, the national crime victim’s fund has done so well that it is hard for lawmakers to keep their hands off of it!)

So what does that mean for you? Last year the Bryne funding programs suffered major reductions, which translated into the loss of prosecutors and police officers at the local levels. We could be in for more reductions in the next fiscal year, with some additional impact on the domestic violence and victim services in your community. We will keep you informed as the budget season progresses.    

DPS crime labs hit their marks

DPS announced that its 13 regional crime labs have received international accreditation. Only three other state police laboratories (those in Oregon, Utah, and Idaho) have reached this level.

As DPS explains it, this accreditation means that the American Society of Crime Laboratory Directors/Laboratory Accreditation Board recognizes the DPS labs meet international testing and calibration standards, as well as supplemental requirements for forensic-testing laboratories.

Are you getting your longevity pay?

As an assistant county or district attorney, you are entitled to state longevity pay beginning in your fifth year of work. Check out chapter 41, subchapter D, of the Government Code for the details.

But it recently came to our attention that some of y’all may not be getting your payments. If you think you are entitled to but aren’t receiving the supplement, you need to do some checking around the courthouse. There are deadlines in the statute that some local officials need to meet. For instance, your auditor is required to send a list of qualifying prosecutors and their service credit to the state comptroller within 15 days of the beginning of each state fiscal quarter (i.e., the 15th day of September, December, March, and June). This pre-supposes that someone—assistants who qualify for supplements—gets that information to the auditor, who may not have it on hand. So, if you aren’t getting your supplement, make a quick call to your county auditor. We have found that the folks at the comptroller’s office do all they can to make sure you get your supplement—they just might not have all of the info they need.

Warren Diepraam goes national

Warren Diepraam, an assistant district attorney in Houston, has been named a National Association of Prosecutor Coordinators Prosecutor Fellow. The NAPC is a national organization of prosecutor training entities (to which TDCAA belongs) that devotes substantial energy to DWI training and assistance. As a Prosecutor Fellow, Warren will act as a resource for prosecutors in other states, NAPC training folks, and the National Traffic Law Center.

This is not the first time Warren has been in the national spotlight. In 2005 he was named NAPC’s Traffic Safety Prosecutor of the Year. Thanks, Warren, for sharing your knowledge and expertise with the national prosecutor community!

Our first paperless seminar

As advertised, TDCAA seminars went paperless beginning with the Prosecutor Trial Skills Course in January. When attendees register, they receive a confirmation email that includes a website address and password to download papers; those papers will be available one week before, during, and one week after the seminar. (That’s why we now require an email address from everyone who registers for our seminars.) As a back-up to this new system, we also provided a CD-Rom containing the course materials.

We had a few folks who preferred that we print out 150 complete binders and hand them out, but the vast majority of attendees understood our need to reduce cost and eliminate wasted paper and appreciated not having to lug that heavy binder around.

Thanks to the TDCAA training team of Erik Nielsen, Ashlee Myers, and Manda Helmick for putting this new program together.

The revised National Criminal Justice Standards and claims of innocence

The National District Attorneys Association’s National Prosecution Standards have been in existence since 1977 and are in their second edition. The NDAA is finishing its work on the third edition, thanks to the efforts of Dean Robert Fertitta, the former chief of the National College of District Attorneys.

The full body of work is a much-needed cleanup of the existing rules. But two in particular are of interest to all prosecutors as we come to terms with issues involving actual innocence.

The American Bar Association’s Criminal Justice Section has some rules on the table regarding claims of innocence that you may not like. The way I read it, the current draft of the ABA rules would allow a prosecutor to be disciplined for a continued good faith belief in a convict’s guilt in the face of new evidence to the contrary. The idea that ethics rules could be used as a weapon against a prosecutor who is acting in good faith is a bit unnerving. You can view these proposed rules, which may be adopted by the ABA later this year, using a link you will find at www.ndaa.org.

The NDAA’s proposed rules focus on claims of actual innocence and would require a prosecutor to respond to such claims in a timely fashion. Here are the draft rules:

8-1.7 Duty to Cooperate in Post-Conviction Discovery Proceedings

A prosecutor should provide discovery to the defense attorney during post-conviction proceedings where 1) required to do so by law, court order, or rule, 2) the evidence is constitutionally exculpatory, or 3) he or she is convinced that the convicted person’s claim of actual innocence is supported by specific factual allegations which, if true, would entitle the convicted person to relief under the legal standard applicable in the jurisdiction and the evidence relates to that claim. A prosecutor may require a specific offer of proof to establish a claim of actual innocence before the prosecutor agrees to take any affirmative action in response to a post-conviction request for discovery.

8-1.8 Duty of Prosecutor in Cases of Actual Innocence

When the prosecutor is satisfied that a convicted person is actually innocent, the prosecutor should notify the appropriate court, and (unless the court authorizes a delay) the defense attorney or the defendant (if the defendant is not represented by counsel), and seek the release of the defendant if incarcerated. If the prosecutor becomes aware of material and credible evidence which leads him or her to reasonably believe a defendant may be innocent of a crime for which the defendant has been convicted, the prosecutor should disclose such evidence to the appropriate court, and (unless the court authorizes a delay), to the defense attorney or defendant (if the defendant is not represented by counsel).

As you can see, the NDAA rules would require a prosecutor to timely respond to evidence which may establish actual innocence by making full disclosure to the court and to the defense. Importantly, the rules do not expose a prosecutor to discipline for continuing to hold a good-faith belief in the continued guilt of a convict.

“You can’t do that, mayor!”

I finish with another important case which, judging by the media coverage, has gripped the nation. Forget breaking the spine of the Klan—let’s talk about the saga of Puddles. It seems that Puddles, a friendly little Shih Tzu, was entrusted to the care of the Alice mayor by some neighbors while they went on vacation. Tragically, Puddles died while his family was gone.

Or did he? Weeks later, a dog was spotted at the local dog groomer, and he looked a lot like Puddles. The mayor insisted that this dog was not Puddles at all, but Panchito. Puddles’ family was not convinced, and the ensuing uproar made national news. The mayor has even resigned over the scandal.

Felony indictments against the mayor for concealing and tampering with evidence were returned in January, and a trial is in the making. No one may be taking down the Klan in this one, but heck, you could strike a blow for dog rights around the globe. Never mind that reports of your triumph are more likely to appear in the National Enquirer than the New York Times. This story has just as good a shot at making it to the big screen as the story of some legendary Klan-fighter! D