By Rob Kepple
TDCAA Executive Director in Austin
During April, all Texas attorneys had the opportunity to vote on a series of changes to the Texas Disciplinary Rules of Professional Conduct. That referendum contained a proposal to amend Rule 3.09, Special Responsibilities of a Prosecutor, about which I last wrote in the July–August 2023 edition of this journal. In a nutshell, the proposed amendment extends a prosecutor’s ethical obligations to disclose exculpatory and mitigating evidence to the post-conviction world, something not covered by the current Rule 3.09 (although it is addressed by the Michael Morton Act). This is a significant rule change because it can lead to a grievance based on a prosecutor’s failure to disclose newly discovered evidence of innocence in a post-conviction setting (a remedy not addressed by the Michael Morton Act).
If you read the article and comments on the proposed amendment in the April 2024 edition of the Texas Bar Journal, you saw that Kriste Burnett, Chair of the TDCAA Rule 3.09 Committee, TDCAA Board President-Elect, and DA in Palo Pinto County, wrote a column in favor of the amendment. She observed that the State Bar Committee on Disciplinary Rules and Referenda (CDRR) had worked diligently to address prosecutors’ concerns about the scope of original rule proposal, and the committee had, in her opinion, drafted a fair and workable proposal.
What was surprising was that an attorney writing on behalf of the criminal defense bar lambasted the proposal, arguing that it should go way further than anything ever even proposed in the CDRR process.
By the time you read this column, we will all know the answer to this question: Did the defense bar manage to kill a rule proposal that would have extended the ethical obligations of prosecutors under Brady?!
Thanks, Mike Criswell
Mike Criswell, County & District Attorney in Swisher County, retired at the end of March after 30 years of service as a prosecutor. (That’s a photo of his retirement party, below left.) You probably know Mike best as a co-host (along with Mike Fouts, 39th Judicial District Attorney) of the popular Rural Prosecutors Forum at our Annual Criminal & Civil Law Conference. I was never quite sure which one was playing the straight guy and which one was playing the comedian, but their “You know you are from rural Texas if …” introduction was an instant classic.
Mike has been that steady hand in the Panhandle for many years. Indeed, when his town of Tulia was thrown into chaos after the drug bust scandal of 1999, Mike stepped up and took control of the crisis in leadership by seeking and gaining felony jurisdiction for his office. He restored confidence in prosecution and law enforcement with his no-nonsense approach to the job.
Over the years, Mike has served as the president of TDCAA, and he is one of the 106 prosecutors who make up the Founding Fellows of the Texas Prosecutors Society. Thanks, Mike, for all you have done for our profession.
Financial support for an out-of-county special prosecution
Because of the changes to Article 2.07 of the Code of Criminal Procedure, which mandates that only Texas prosecutors may be appointed to be a prosecutor pro tem, and the increasing lack of assistance from what was once called the Prosecutor Assistance Division of the Office of the Attorney General, many of you are being appointed as a prosecutor pro tem in counties sometimes far away from home. It can put a dent in anyone’s budgets.
I’d like to remind everyone about §43.004 of the Government Code, which provides that a district attorney engaged in the discharge of official duties in counties other than the DA’s county of residence is entitled to travel and other necessary expenses from the state. Indeed, the state has a budget for these expenses that doesn’t always get used. So, if you are looking for ways to cover the cost of out-of-county special prosecution expenses, you may wish to call the good folks at the Comptroller’s Department (the Judiciary Section).
If you have any questions, you can also contact me for more details.
New appointees to the Criminal Pattern Jury Charge Committee
Congratulations to Natalie Cobb Koehler, County Attorney in Bosque County, and David Holmes, County Attorney in Hill County, for their appointment to the State Bar Criminal Pattern Jury Charge Committee. They will begin their three-year terms after this summer’s State Bar Annual Meeting. This is important, if sometimes behind-the-scenes, work. Thanks, Natalie and David, for stepping up!
Our “first round” of newly elected prosecutors
During the U.S. Presidential election cycle, most Texas district attorneys and county attorneys also run for election or re-election. In a nutshell, 268 out of our 336 elected prosecutor seats are up for grabs this year (criminal district attorneys run on the gubernatorial election cycle). After the primary elections on March 5, we are down to 13 remaining contested elections, where either a runoff takes place on May 28 or the winner is decided at the general election on November 5. To see all the election results and remaining contested elections, go to www.tdcaa.com/2024-prosecutor-races-and-candidates.
In the unsolicited advice department
When I retire at the end of this year, I will be in my 35th year at TDCAA. That and my six years at the Harris County DA’s Office have given me a lot of time to learn a thing or two about this great profession of ours. Throughout my career, I have had the good fortune to teach prosecutor ethics in Texas and around the country, as well as a prosecutor clinic at a law school. Teaching has truly been a gift to me.
So as I start to sort through drawers containing past presentations, allow me to share a few of my favorites in the next few issues of this journal.
This first offering comes from a talk to aspiring prosecutors in the venerable “Top 10” tradition. Here are my Top 10 Tidbits of Advice. I don’t claim that these are original, and yes, they are kinda random. But each one springs from a lesson learned the hard way, so that is probably why I remembered them!
My Top 10 Tidbits of Advice
1) Be yourself. Everyone else is taken.
2) Ask every potential juror at least one question.
3) Ask your investigator for help and their opinion. Investigators are experienced, and they won’t let you down.
4) Defense attorneys are the loyal opposition. Treat them with respect.
5) Listen to the defense attorney when she is warning you about your case.
6) Memorize how to impeach with a prior inconsistent statement, oral and written.
7) On closing, remind your jury of the commitments they made during jury selection.
8) Maintain a poker face.
9) Be nice to the defendant’s mother.
10) Don’t take a “not guilty” verdict personally. One plus one does not always equal two in a criminal trial.