Well, here it is. We’ve made it through the first chapter in this behemoth of a cursed code. It’s just the beginning, and I’m feeling like Lawrence Sterne’s character, poor old Tristram Shandy, trying to write his wretched memoirs but each day he recalls takes him two days to write down, the insurmountable stack of memories piling up behind him as the stack of papers in front of him fails to keep up the pace. Sterne’s novel – in nine mind-numbing volumes – was once the talk of the 1760’s, with Shandy weighting in on everything from definitions of honor to how to best make button-holes. But now, it is relegated largely to the halls of academia where bored graduate students are forced to push through it at the behest of tenured faculty and their insistence on the importance of proper buttonholing.
Today, though… today we make some real headway, and we start an all-new chapter. TCCP Art. 2.01 “Duties of District Attorneys.” Please read along if you can, but the pertinent part is the part I will quote here, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” You see that, “progressive” prosecutors? You see that, Chief of Capital Misdemeanors? You see that, sleeping intake DA? PRIMARY. That means first. Your FIRST duty is to make sure justice is done. Tell me the last person at the DAO who was promoted because of their compassion, high dismissal and alternative diversion rate, and ability to see and solve problems that are creating continued interactions with the criminal courts. That’s not the rubric for promotion, of course.
Art. 2.01 is the statutory version of Brady for us. It doesn’t give us quite as much – notice that the language is “capable of establishing the innocence…” – as Brady’s more generous, “tends to establish.” (Emphasis added). See: Brady v. Maryland, 373 U.S. 83 (1963). That said, it’s not the definition of the evidence that I think is the biggest chasm here between defense and State. It’s the definition of the word “justice.”
I am sick of banging my head against this Article. Sick of listening to ADA’s with little life or legal experience tell me what my client “deserves” with no awareness of what the State can actually prove. Sick of ADA’s, casually pleading away people’s lives, negotiating years like dollars, like a kid’s poker game for candy.
The Texas defense bar has long let political infighting and competition for appointments prevent them from wielding the power that the defense bar should have in matters of how our clients are treated and how we are treated, but that needs to end. No matter how many cases a beleaguered defense attorney, public or private, carries, an ADA will always carry more. We have the power to set things for trial, to give them motion sickness, to challenge and claw and fight each step of the way if we don’t get what we want. TCDLA does a great job of organizing, supporting, and connecting us, but we need to utilize our resources better. Let’s actually pull stuff out of the motions bank, contribute our own motions, and push for more and better discovery earlier and harder. Don’t get bogged down in local custom that exists just because it always has, even though it’s not in our clients’ interest.
I know it’s a slog. I know you’re busy. I know you think you don’t have time. But really, I’m not talking about inefficiency – I’m talking about extreme efficiency. Learning the law, learning the things we can do for our clients and how we can do them in a way that is heard, that is effective, and that is not just waiting until the next setting to try and ask the DA for discovery again and then getting a reset. We all have something to offer the defense bar and the other people in it. Part of the reason prosecutors handle things the way they do is because we let them. We are a legion of skilled, educated professionals with a lot of unique experience among us, and we need to demand what they are obligated to give our community but often refuse to: Justice. We can’t let the buttonholes at the DAO get in our way.
Love Always, Allison
