The Texas Prosecutor, January-February 2017, Vol. 47, Iss. 1

Some of what I’ve learned

This is my first article as TDCAA President. To put it candidly, I became a prosecutor because I wanted to prosecute and do lots of jury trials, not to be an author. But as all prosecutors know (or will find out soon enough), we all have to make certain choices and take on various duties whether we’re comfortable with them or not.
    I have been active in TDCAA for years. Being president of the biggest and best prosecutor association in the nation is a huge honor, and I am extremely humbled when I think about all the great leaders who have held this post. I promise one thing: I will give you my best effort! Thank you for providing this opportunity to me.

To those leaving office
Life is full of transitions. Two very consistent transitions are the changing of the seasons and the changes that elections bring. The 2016 election was no exception, with more than 50 newly elected prosecutors voted into office. That is the second largest change in my 30 years as a prosecutor. Those leaving our ranks have worked diligently to serve their communities and our State. I am greatly appreciative of all that each of you have contributed to prosecution, and I sincerely wish you the best in your future.
    Many have contributed to our profession by working in our association’s leadership and related services. One person I’d like to recognize specifically is our outgoing president, Bernard Ammerman, a man of outstanding character and ethics. While taking care of his normal duties as the County and District Attorney in Willacy County, Bernard dedicated three years to TDCAA leadership, and he leaves office having made our association better than when he started. Thank you, Bernard!

To those taking office
For those coming into office, congratulations on becoming part of an elite group of attorneys—elected prosecutors. Welcome to the fold! I look forward to meeting, working, and assisting you whenever needed.
    I have been in some different scenarios as a prosecutor: I served as the district attorney in a rural, five-county jurisdiction with a small population, in a one-attorney office, and now in a mid-size jurisdiction of two counties, 18 ADAs, and 140,000 citizens. In my 30 years of service, I’ve been there and done that, and I offer some of my hard-earned wisdom to those who might want it.

1. Never forget that you are a prosecutor, nor the duty that comes with the job. Your duty under Texas law is to seek justice. That means making decisions based on the law and the facts and always doing the right thing. Doing the second-best thing is the wrong choice. Doing nothing is unacceptable.

2. Prevent problems before they happen. Early in my career, a very good prosecutor I worked with was assigned a high-profile case. He was repeatedly attacked for making decisions on the case based on the defendant’s status in the community and on his race. Way back then, I decided that whenever possible, I would avoid knowing a defendant’s name, race, and other defining characteristics and just decide a case on the facts and the law. Do not let peace officers tell you the names or descriptions of the parties involved in an offense. Get all the information you need (factual and legal), analyze it, consult with a peer if needed, then make a decision. Remain consistent in your positions and treat all people equally. Exception: When you must distinguish one defendant from others, you must be able to articulate your reasons for doing so.

3. Be yourself. Do not let the title, the badge, or the power change who you are or your core values. As elected prosecutors and, by extension, assistant prosecutors, we are the most powerful people in our jurisdictions. We are the only ones in the criminal justice system charged with seeking justice, and you were elected by your communities to protect all of its members. And this comes from a cowboy who just happens to be the DA: Never forget you are the only one in the criminal justice system wearing the white hat! Play fair, follow the law, and give due process to all. Everyone is entitled to the same criminal justice system.

4. Meet other prosecutors. Make contact with as many as you can across Texas and nationally. You never know when you will need something from somewhere, and it is easier to get it if you have contacts far and wide. I hope our new elected folks will become involved in TDCAA once they feel comfortable with their normal duties.
    Find a mentor. No matter how old you are or how long you have been doing a particular job, you can always learn more and improve. Find someone who has been prosecuting for longer than you whom you can contact for any reason at any time. Many people have helped me. One was Eddie Langwell, chief investigator in the Potter County Attorney’s Office. When he gave me my first badge as an assistant prosecutor, he said, “Always remember that this badge will get you a lot of things, but it takes only one thing to lose that badge.” And in all the years since, I’ve never once flashed my badge to get preferential treatment anywhere. It was good advice.
    My second piece of advice came from a former TDCAA executive director, Tom Krampitz, whom I greatly respect to this day: “Do not say or do anything you do not want to have to explain to your mama or see as the headline on a newspaper.” Both of these adages were told to me 30 years ago, and they still ring true for all of us today.
    In 2005, I added one, which I pass on to any employee: “With today’s technology, remember that cameras are all around us—because everyone is carrying one and there are security cameras virtually everywhere. Anything you do, anywhere you do it, there is a strong probability that it could end up on the Internet.” Be careful what you do, even in your off-hours.


5. Build a team. You are the coach and cheerleader of the office. How your office operates will be based on you. Choose people you can trust to follow and uphold the law as a prosecutor should. And supervisors and elected prosecutors, remember that you could be held responsible for your subordinates’ actions.

6. Never say, “No comment.” Instead of stonewalling a reporter asking about a case, you can reply, “The Texas Rules of Ethics prohibit me from commenting on pending investigations as well as pending cases.” An alternative stolen from the feds: “I can neither confirm nor deny the existence of any investigation.”
    Also remember that nothing is ever truly off the record. Reporters will take what you tell them “off the record” and then contact others to confirm or deny what you told them. Then—bingo!—what you said could be published and attributed to “an official source who chose to remain anonymous.”

7. Set the tone early with plea offers. The defense bar will watch closely how you handle pleas to try to spot your patterns. I suggest you take what a jury in your community would give on a case’s set of facts (which will get easier to estimate the longer you’re in office) and subtract from that amount the benefits you and the victims get from a plea (quick resolution, finality, reduction of man-hours spent, etc.).
    Always make your lowest offer first, then work up. This will save you time. If you are known for starting high and bargaining down, the defense bar will hold out to the very end to get the best deal for their clients. If you are known for pleading cases the day of trial, defense counsel will wait until trial to take the lowest deal.
    I hope you find this advice beneficial to your practice. Until next time, keep your white hat clean.