Defense Attorney Perspective On DA Elections

District Attorney elections in the 198^th District Court (Brad McCulloch v. Scott Monroe) and in Williamson County (John Bradley v. Jana Duty) have turned heated, and are extremely important for the citizens of these jurisdictions.  Both offices have had their troubles in the recent past and this year they will elect someone who is charged with taking that office into the future and improving its reputation.   It is also an important election for criminal defense lawyers who practice there. I have many readers, friends, and family members who live and work in the 198^th and Williamson County.   I wish to offer a Constitutionalist point of view of the role of any district attorney or prosecutor in the State of Texas according to the law and the rules that govern lawyers who practice here.

Despite recent allegations and drama depicted on social media and in the news, I am most bothered by our perception of the job of a District Attorney. This seems to have been lost to many voters, citizens, members of the media, and perhaps the candidates themselves.  What is guiding the candidates to seek this office? Grand standing, distorting facts, arrogance, power hunger, etc., have no place in the criminal justice system.   A prosecutor should never think of cheating to win in a courtroom.  A prosecutor must be honest.  Obtaining convictions is not the goal of a prosecutor.  The number one goal of a prosecutor is to see that justice is fairly accomplished, NOT to be an advocate.  This is found directly in Comment No. 1 to the Texas Rules of Professional Conduct (TRPC) Rule 3.09 written by the Supreme Court of Texas.   These are the ethical rules all lawyers licensed in Texas must know and follow.  Prosecutors are the only lawyers specifically identified and given a particular duty separate from other lawyers in the entire TRPC.   Rule 3.09 comes from law contained in the US and Texas Constitutions, Texas Statutes, and Case law promulgated by the US Supreme Court. 

Seeking that justice is fairly accomplished is not as broad and objective as it may sound.  Anyone with any understanding of the criminal justice system knows the cornerstones.  Every person accused of a crime is presumed innocent.  That presumption is only rebutted when there has been established proof beyond a reasonable doubt.  This means that even if you are pretty sure someone is guilty of a crime, then that person cannot be convicted because you have not been convinced more than a reasonable doubt.  It is not a prosecutor’s job to persuade you that the accused is guilty, it is the prosecutor’s job to present to you all the evidence lawfully obtained and let you decide if that is sufficient to eliminate all reasonable doubt.  The law goes even further and mandates that if a prosecutor possesses any evidence that tends to show the accused did not commit the crime (exculpatory evidence), he is obligated to turn it over to the Defendant. Prosecutors must also disclose any material that mitigates the offense committed.  For example, in an assault case,  if there is any evidence that the Defendant acted in self-defense, the prosecutor must disclose this to the accused. I interpret this rule to require prosecutors to actively seek exculpatory and mitigating evidence.  It is not enough to for law enforcement officials to say they did not know the exculpatory or mitigating evidence existed, they must, in fact, investigate and be certain that it does not.  Honesty is the most important virtue any lawyer can have, but when a prosecutor is not honest, innocent people go to prison.

Another cornerstone of the criminal justice system requires that a defendant receive a fair trial.  The Constitution calls this Due Process.  Due Process begins as soon as someone is suspected of committing an offense.  Prosecutors must have probable cause to arrest someone, and under no circumstances may they “initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.”  Everyone accused has a right to be represented by counsel, and can only waive that right voluntarily after full disclosure of the potential consequences.  Indeed, many judges will appoint a lawyer even when the defendant attempts to waive his right to representation.  There have been federal lawsuits in Texas against DA offices who try to mass plead defendants before they hire lawyers.  If Due Process is violated at the pretrial or trial stage by the government, then the sanctions range from suppression of the evidence, mistrial, to flat out dismissal with prejudice. Whenever any of these sanctions occur, taxpayers ultimately pay the bill.

While Texas’ ethics rules for lawyers govern the above situations, the law governs how trials must be conducted.   When you hear about mistrials due to overzealous trial tactics from prosecutors, that is someone who is a cheater.  Cheaters are inherently dishonest.  Dishonest prosecutors are the most dangerous threat to our criminal justice system.  It is a character trait that cannot be tolerated or permitted.  The accused’s right to a fair trial is what makes this country’s legal system separate and unique from every other country in the world.  We afford them the presumption of innocence, impose the highest legal burden in our system (proof beyond a reasonable doubt), enforce Due Process requirements, and do not require a defendant to testify against himself.   

Accordingly, early voting begins shortly in hotly contested DA elections.  There has been enormous rhetoric and actions taken by campaigns to make the other candidate look unfit to serve, but what qualifications of the candidates do you know in regards to what is discussed above? An honest candidate will address these questions and demonstrate a spirit of fairness in their quest for justice, and their background will reflect it.