A way with words

By Rob Kepple
TDCAF & TDCAA Executive Director in Austin

I was very saddened to learn of the passing of Judge Cathy Cochran. Judge Cochran was my first court chief in County Court-at-Law 13 in Harris County back in the 1980s. She went on to be one of the best judges to ever serve on the Court of Criminal Appeals. She is flat-out the smartest and nicest person I will ever meet. But even if you didn’t know her, you certainly would have appreciated that she could write an opinion that was cogent, transparent, and, well, rich with literary references and wonderful language.

            Yes, you know what I am talking about—the legendary butt-crack case. In McGee v. State, 105 S.W.3d 309 (Tex. Crim. App. 2003), the issue was whether a warrant was required to search someone who had hidden illegal drugs between his buttocks. In her concurrence agreeing that the search was proper, Judge Cochran succinctly observed: “The human body is a private sanctuary which is generally entitled to significant protection under the Fourth Amendment. On the other hand, the human body is not ‘a sanctuary in which evidence may be concealed with impunity.’ A person who intentionally uses a body cavity as a pocketbook cannot claim ‘King’s X’ when reasonable suspicion or probable cause points to that body-cavity pocketbook.” Classic Cochran!   

            Her language was a device to drive a major shift in Texas jurisprudence. This Texas Monthly article about her is worth the read:  www.texasmonthly.com/politics/the-reformer. 

Shapeshifting is a real thing—we have proof

I am a believer in therianthropy (or shapeshifting)—how else does my dog always manage to get out of the house? He must turn into a human for purposes of opening the door handle.

            We now have proof that people can shapeshift into animals right here in Texas. Recently our very own Rod Ponton, County Attorney in Presidio County, was caught on camera in his cat state in a court hearing. I am certain he was chagrined to have been caught:   twitter.com/lawrencehurley/status/1359207169091108864?s=20.

            OK, yes, it’s probably more likely that there was just a cat filter on Rod’s computer camera, but the “cat lawyer” video clip still made the rounds on Twitter, racking up more than 45,000 retweets in just a few hours after a Reuters reporter posted it. Judge Roy B. Ferguson of the 394th Judicial District tweeted, “Everyone involved handled it with dignity, and the filtered lawyer [Mr. Ponton] showed incredible grace. True professionalism all around!”

Report from the nation’s capital

The National District Attorneys Association (NDAA) recently held its annual Capital Conference, which gives prosecutors from all over the nation an opportunity to gather—remotely—and talk about criminal justice issues on a national scope. These issues will play out in Congress, of course, but some will impact local criminal justice. Here are some of the issues that prosecutors discussed:

            Victims of Crime Act:  The Victims of Crime Act (VOCA) is suffering from a reduction in funding, so prosecutors discussed supporting the redirection of monetary penalties from federal deferred prosecution and non-prosecution agreements into the Crime Victims Fund (CVF) to increase funding to support victims and victim services providers. In addition, it would be helpful to increase the federal grant calculation for funding to victim compensation programs from 60 percent to 75 percent of state-funded payouts and allow states to request a one-year, no-cost extension for these grant programs to ensure the long-term stability of the VOCA programs.

            Electronic communications and encryption:  A struggle with communication companies over encryption and law enforcement’s access to electronic evidence continues. On the national level, there has been interest in allowing the use of cell phone jamming systems in prisons to ensure cell phones are not used to direct illegal activities outside prison walls.

            Criminal justice reform:  Prosecutors discussed the First Step Act, which President Donald Trump signed into law in 2018. The act was meant to reduce recidivism through various programs (see www.bop.gov/inmates/fsa/over-view.jsp for details), and full implementation requires adequately funding the Bureau of Prisons (BOP) staff and facilities who are responsible for carrying out the law. There was also widespread support for ending driver’s license suspensions for fines and fees to ensure we are not policing poverty, while ensuring suspensions remain for those who pose a risk to traffic safety. In addition, prosecutors supported the provision of certificates of rehabilitation to equip incarcerated individuals with the tools to successfully re-enter society.

            Funding goals:  Prosecutors were concerned about insufficient funding to address DNA backlogs. And although this program has been defunct as far as Texas is concerned for years, many prosecutors still hold out hope for an increase in funding for the John R. Justice Student Loan Repayment program.

Meanwhile, back in Austin

As you read this edition of The Texas Prosecutor journal, the Texas legislature is in the middle of the 87th Regular Session, and our legislators are debating some very important proposals as well. Some of my favorites emerging from this session are:

            •          the sale of alcohol at high school stadiums;

            •          protections against fake catfish at restaurants;

            •          the abolition of Daylight Saving Time;

            •          recognition of the 1847 Colt Walker pistol as the official pistol of Texas;

            •          designation of the Bowie knife as the official knife of Texas; and

            •          the designation of San Marcos as the official mermaid capital of Texas.

            It is always entertaining!

BJA grants and other financial assistance

Facing funding limitations from local and state sources, prosecutors and law enforcement continue to look to grants for programs and personnel. Significant funding from the federal government flows from the Bureau of Justice Assistance (BJA) and is often accessed through the Criminal Justice Division of the Office of the Governor. Over $100 million is available from the cornerstone Edward Byrne Memorial Justice Assistance Grants, and additional funding is directed at forensic science, violent crime reduction, cold case investigations, gun violence, opioid abuse, and mental health. A summary of the 2021 programs is available below as a PDF).

            If you are looking for additional funding for various programs, you might also check out your local council of governments at www.txdirectory.com/online/abc/detail.php?id=200 and the Criminal Justice Division website at gov. texas.gov/organization/cjd/programs. And this just in:  The founder of Facebook and his wife, Mark Zuckerberg and Priscilla Chan, just dedicated $350 million to criminal justice reform (https://www.vox.com/recode/2021/1/27/22251211/mark-zuckerberg-priscilla-chan-czi-criminal-justice-immigration-overhaul). One wonders if the innovations occurring in prosecutor offices and courthouses around the country will enjoy support from such efforts.

2021 committees

Board President John Dodson (CA in Uvalde County) has been busy appointing the 2021 TDCAA committees. This is truly a member-driven organization, and the work of these committees is crucial in designing the training, publications, and other activities of the association. Thanks to everyone listed below for their service in 2021!