It seems the defense is determined to tear down the SPA's office as we know it. There is a charge (House Criminal Jurisprudence -- hit your "legislative" button above) to (1) abolish the SPA's office or (2) merge it with the AG's office and create a similar defense organization. (You may recall a similar attack on the office two years ago).
Surely these alternatives are unacceptable to prosecutors? Small offices and the appellate courts need experienced counsel. Eliminating the office is nonsensical. Also, defendants already enjoy the right to appointed counsel.
If the SPA merges with the AG's office, then the AG will represent our offices in the state appellate courts as well as the federal courts. The AG's office does fine work on our cases in federal court (both on death cases and federal writs) but do we want to hand over our cases before the conclusion of state proceedings?
We are incredibly fortunate to have the current staff of the SPA's office as independent representatives in our courts. It would be a significant loss to Texas criminal jurisprudence to abolish or re-organize this venerable, erudite, and independent institution as proposed.
I don't think the AG could take over the appellate litigation without an amendment to the Texas Constitution. Elected District Attorneys have the original authority to handle criminal prosecutions.
When they reach federal court, the AG, under appropriate authorizing statutes, may have the ability to handle those criminal cases, but not while they are in state court.
So, as a matter of separation of powers, the Legislature is limited on what it can do to change the current structure. Of course, they could alter how the SPA is appointed. I wouldn't be opposed to having the SPA appointed through the Board of Directors of TDCAA. The current system of appointment through the Court of Criminal Appeals has always seemed a little odd to me.
I frankly have a hard time understanding why defense attorneys have any voice in any of this. We would hardly expect the Legislature listen to them describe how prosecutors should be elected, so why should they listen to how a SPA is appointed?
Historically, there has been some sense that prosecutors have an "advantage" because we have a SPA and they don't have a statewide appellate agency. Well, that is because the SPA represents the State's interest, which is statewide. A criminal defense attorney never represents anyone other than an individual client. How, then, could a statewide criminal defense attorney agency impose a policy decision on an individual client?
What would happen is that the statewide criminal defense agency would become a political base for certain points of view (e.g., abolition of the death penalty). Well, that is not an appropriate use of government funds and would be an unethical abandonment of the duty to be zealous for the client only.
This is all especially perplexing when you look at the federal example. No one doubts that the US should have a Solicitor General speak for the US in the Supreme Court. That SG provides the SC with a governmental point of view. There is no country-wide agency that gives the SC a criminal defense point of view. The job of the attorney is to protect the defendant. Of course, other agencies can file amicus briefs if they wish.
So, what's the beef?
The analogy to the Solicitor General is useful and, to the choir, compelling. One thing though, isn't the Solicitor General a political appointment? If the SPA were appointed politically, there is potential for emphemeral changes in policy as the political leadership changes. The idea of TDCAA appointing the SPA is very appealing but if the defense is so set against the SPA will merely passing control appease them?
As you noted, and Saldano clarified, any changes to the status quo involving the AG would require major legislative action. That is some comfort.
Because of the hurdles to modifying the SPA's position, the greatest threat may be outright abolition. That the citizens, prosecutors, and courts of Texas cannot afford.
[This message was edited by John Stride on 01-10-05 at .]
Obviously, we need to strongly oppose any attempt to abolish or diminish the SPA office. At the very least, all of us need to write our respective legislators and let them know how we feel. I think it would be more appropriate to go to Austin when any such measure comes up for a hearing, etc. I'm sure that this is on the TDCAA radar screen and they'll let us know when things heat up... right, Rob, Shannon, et al?
Mike, you hit the nail on the head. We here in Austin can keep you informed, but it's you -- the elected prosecutor -- who needs to weigh in with your senators and representatives on the SPA issue. If you think it is worthwhile, you need to work to save it.
Me, I think the SPA performs a crucial service -- helping to develop the jurisprudence of the state in a consistent and sensical way. And they do it for cheap. We as the state have a duty to get it right. They are an important part of that....
I have served under two attorneys general, one democrat and one republican. I have seen the inner workings of the AG's office and, with respect to my former bosses, politics does influence the decisions made by attorneys general. If they put the State Prosecutor in the AG's Office, I guarantee that, at some point, a decision will be made not to become involved in a criminal matter of significant statewide importance because of political pressure or because not doing so somehow advances the political interests of whoever holds the office at the time. I have seen it happen. Making the State Prosecutor answerable to the AG is a very, very bad idea.
The State Prosecutors Office is a wonderful asset to elected prosecutors and their assistants across the state. It is one of the few state agencies that seems to function well, and I couldn't begin to count the number of times they have assisted me on cases and law.
It should be left alone. As Shane pointed out, the potential for political decisionmaking, as opposed to seeing "that justice is done", would be too great were it moved under the auspices of the AG. No offense is intended to the undoubtedly many fine and dedicated Assistant AG's in this State by that comment, by the way.
One other thing has occurred to me. We live in law and order Texas. Having an independent agency to protect the interests of the State and its citizens, and the integrity of our criminal laws, before the Court of Criminal Appeals is clearly a good thing. So, why is it that our Legislature seems to kowtow to every whim that hits the defense bar in this State, regardless of whether it contravenes the bests interests of the vast majority of Texans? Why is the prosecutor community looked upon with such disdain in the halls of the capital? It should be sufficient that the prosecutors of this State believe that the State Prosecuting Attorney is a valuable resource in making sure that the system works properly. Sometimes I just don't get it.
Someone told me recently what the Asst. SPA's were making and, frankly, I was appalled. How about an increase in funding while we're discussing their office?
Shane, I agree totally with your sentiments that the thoughts of Texas prosecutors should carry much more sway on this issue as well as many others. However, do they really hear us up there? Although, things are improving, for the 20+ years I've been in office many of us (me certainly included) have been content to let TDCAA and the big metro offices carry the ball in Austin. Although they've done a terrific job, Rob and Shannon have been telling us for a while that they need some help if we want to make a greater impact. For years, while attempting to gaze over a very full plate of stuff to do, I've just rationalized doing nothing of any consequence by saying that I'm just a rural D.A. who can't make a difference in the big city. I guess it goes without saying but doing nothing rarely produces any positive results. We need to redouble our efforts to assist. Steve Bristow's efforts to get some of us off of our behind and up to Austin is a great idea. Admittedly, I'm nervous about it since I do well to find the CCA and the TDCAA office in Austin much less knowing my way around the legislature. But I'm going to try to block out a week and give it a shot... We need to crank up the volume and really make sure they hear us in Austin. Got another idea that I'll put on a new post when I get to the office. Amen.
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