[Is it ethical/appropriate for a DA candidate to announce that he/she will not prosecute a particular penal violation?]

4 Travis candidates lay out their views on death penalty

Three of Earle's assistants say they would seek ultimate punishment infrequently; former assistant says he would never seek death.

By Steven Kreytak
AMERICAN-STATESMAN STAFF
Tuesday, February 05, 2008

Three of the four candidates for Travis County district attorney told a packed room of potential voters in East Austin on Monday that, if elected, they would continue to seek the death penalty for the worst killers.

Outgoing District Attorney Ronnie Earle's assistants Gary Cobb and Rosemary Lehmberg, who are hoping to replace him, said that some people's crimes are so heinous that the public's safety is served by seeking their execution. Candidate Mindy Montford, another Earle assistant, said that because the death penalty is on the books in Texas, she must consider it if elected.

Candidate Rick Reed, who resigned from Earle's office last week, said he would not seek the death penalty under any circumstances. Reed also said he wouldn't seek death warrants for the five condemned killers already on death row from Travis County. Death warrants, issued by a trial court at a prosecutor's request when the killer's appeals have run out, set dates of execution.

"I believe it is a mistake ... to seek the death penalty," said Reed, citing his moral opposition and the cost of prosecuting such cases.

The candidates spoke at a forum that drew about 50 people to Gene's New Orleans Style Poboys & Deli, a restaurant on East 11th Street. The gathering was sponsored by the Texas Moratorium Network, which advocates a death penalty moratorium in the state, and the Austin chapter of the American Civil Liberties Union.

The candidates are running in the March 4 Democratic primary. Because there is no Republican candidate, the winner of the primary is expected to become the next top prosecutor in Travis and have the sole discretion on whether or not to seek the death penalty.

Cobb, 46, has worked in Earle's office since 1990; Montford, 37, has worked there since 1999; and Earle's first assistant, Lehmberg, 58, has been in the office since 1976. Reed, 52, had worked there since 1999.

In questioning the candidates, Scott Cobb, president of the moratorium group and no relation to the candidate, noted that Texas accounted for 62 percent of all executions in the United States in 2007 but that Travis County rarely seeks the death sentence.

Montford, who in the 1990s served two years as general counsel to state Sen. Eddie Lucio Jr., said she drafted legislation, finally passed in 2005, to institute life without parole.

"I am entitled to have my personal opinion on a bunch of laws," she said, "but as the DA, I take an oath, and I am charged with following the law."

Lehmberg noted that she helped Earle develop the system used in evaluating which cases deserve the death penalty.

Under that system, a committee of Earle's top deputies, which includes Lehmberg and Cobb, evaluates cases and makes a recommendation to Earle.

"I think that anyone who has a conscience and who has been a prosecutor for a while has struggled with the death penalty," Lehmberg said. "In the end, the DA makes that discretionary call."

Cobb said the death penalty is necessary to protect society, including those in prison.

Cobb said that until he was about 30, he opposed the death penalty. Then he heard of a case from Houston in which some gang members raped and strangled some girls and then returned to a party.

"I thought maybe those people, maybe they didn't deserve to keep living," he said.

Cobb argued the case against Guy Allen, who was sentenced to death in 2004 for fatally stabbing his former girlfriend, Barbara Hill, and her daughter, Janette Johnson.

Seems like the death penalty hot-button issue has taken the place of, or is in addition to, the pro/against abortion issue that has been so common for federal judges all these past years.

The rules of professional conduct require us to see that justice is done. As a minister of justice we have sworn to uphold the law. If a DA has a predisposition to not seek the death penalty where appropriate and warranted, I would have to say that he is violating his ethical duty to seek justice.

Texans have chosen to make those guilty of the most heinous crimes pay the ultimate punishment. I may offend, but if there is anyone that is so against the death penalty to refuse to seek it when warranted and wants to work in prosecution, they can just move their @#$ to New Jersey.

On one hand you've got a DA who won't consider the full range of punishment.

On the other hand District Attorney is an elected position. If the majority of voters of Travis county agree that the death penalty is never "appropriate and warranted" then he'd be hard-pressed to seat a capital jury anyway.

This sounds like a strategy to win the primary but lose the general election. He won't get my vote in either.

Wouldn't we tell a juror that such a position would make them ineligible to serve on a jury because they could not take the oath and consider the full range of punishment? Shouldn't the same standard apply to the elected official charged with trying the case? Wouldn't the ACLU be marching at the doors of the DA's office if the position taken by the candidates was that life in prison was not appropriate, making death by lethal injection the only choice the DA would pursue?

It is at these moments when we discover true media bias. You will read no editorials charging the candidate with an ethical lapse.

[Is it ethical/appropriate for a DA candidate to announce that he/she will not prosecute a particular penal violation?]


Of course, this is done quite often, though often not as publicly nor on such a 'high-profile' issue as the death penalty. DAs often make calculated decisions on when/whether to pursue charges, or how to pursue them. They routinely issue policies, guidance, or just plain order that certain crimes get charged or not, or that certain punishments are on or off the table. Sometimes they go harsh ("too much of this in the newspaper!"), sometimes they go easy ("the jail is full!"). This is often does as a matter of 'policy', meaning that the circumstances of the case won't even be considered.

Such decisions may be contrary to our "ideals" of justice, but we all know that we don't live in an ideal world, and leaders must make pragmatic (and sometimes difficult) choices about how resources (prosecutors, courtrooms, jail space, etc.) will be utilized. Personally, I'd rather have DAs doing it explicitly in public rather than generating smokescreens.

[Is it ethical/appropriate for a DA candidate to announce that he/she will not prosecute a particular penal violation?]

Not seeking the death penalty is not eactly the same thing as not prosecuting a particular penal violation... perhaps it is akin to a policy of "no pretrial diversion."

There is nothing unethical about anything these candidates have said. A prosecutor is not obliged to seek the maximum sentence in any case, and he can have a policy to that effect. I think the candidates are to be commended for being so frank with the public.

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Originally posted by AlexLayman:
This sounds like a strategy to win the primary but lose the general election. He won't get my vote in either.

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Ha! In Travis County, the primary IS the general election.

Seriously, though ... Is this different than running on a platform of refusing to offer probation to [fill in blank with pariahs of the moment]? Unlike neutral judges, aren't prosecutors free to campaign on exactly that type of position?

States that: "All elected and appointed officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation: I,___________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of _________of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God."

If a candidate for District Attorney is flat saying that they will never, under any circumstance, consider the death penalty, he/she is not preserving, protecting or defending the laws of The State of Texas. Last time I checked, the death penalty was still on the books as a possible punishment, proscribed by the laws of the State of Texas.

But so is probation for murders. And haven't we heard in the news prosecutors saying that they would NOT give probation to murders? As quoted from a recent Dallas Morning News article

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"Prosecutors in different parts of Texas apparently use their discretion in wildly different ways," said Bennett Gershman, a law professor at Pace University in New York and a former prosecutor of violent crimes. "That's where I think the crapshoot is. You get this prosecutor as opposed to this prosecutor, you're either going to face capital murder or you're going to get probation."

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Originally posted by RTC:
But so is probation for murders. And haven't we heard in the news prosecutors saying that they would NOT give probation to murders? As quoted from a recent Dallas Morning News article

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"Prosecutors in different parts of Texas apparently use their discretion in wildly different ways," said Bennett Gershman, a law professor at Pace University in New York and a former prosecutor of violent crimes. "That's where I think the crapshoot is. You get this prosecutor as opposed to this prosecutor, you're either going to face capital murder or you're going to get probation."

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Wow, I thought I had seen some recent blogging on probation for murder at Grits. What an amazing coincidence!

Here's the link to the Grits search results for probation murder:

http://gritsforbreakfast.blogspot.com/search?q=probation+murder

I respectfully disagree there! The punishment ranges in the code do not range from pretrial diversion to the appropriate jail/fine. I actually think it's the opposite....that unwillingness to ever consider the death penalty is the same as USING pretrial diversion. Meaning, we have a lot of discretion and when that's the case it's possible to do what we think is best as long as the law doesn't PROHIBIT what we want to do. The law doesn't say we can't do pretrial diversion, so some do. The law doesn't say we can't use life without parole in the same circumstance we would go for the death penalty, so some do.

(of course, the law does allow for fees for pretrial diversion programs, but that came after prosecutors had already started doing them).

My humble opinion is that this is dangerous (slippery slope) because we are then saying that our personal opinions are more important than the law as written. I don't think it's unethical, and I'm not putting a moral judgment to either avoiding the death penalty, applying it aggressively, using pt diversion, or not using pretrial diversion. I just think sticking to the law as closely as possible (and not making the exceptios the rule) keeps us all from getting a big head because we do have so much power over people's lives.

[This message was edited by suzannejost on 02-12-08 at .]

Old Bumper sticker: "If you don't want to receive the death panalty, commit your murders in another state." New Bumper sticker: "If you don't want to receive the death penalty, commit your murders in another state, OR AT LEAST IN TRAVIS COUNTY." Of course, there will be the political disclaimer that the aforemention is only good if candidate Reed is in office.

DA's are to seek justice in every case. If a DA candidate is of the opinion that the death penalty is unjust, he or she should say so. Then I will know who to vote against.

I don't see it as unethical, but I would advise against using the word "never" in any instance. You don't know what the future may hold.

[QUOTE]Originally posted by Dustan:
The rules of professional conduct require us to see that justice is done. As a minister of justice we have sworn to uphold the law. If a DA has a predisposition to not seek the death penalty where appropriate and warranted, I would have to say that he is violating his ethical duty to seek justice.

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I don't agree with you. Texas legislature has given the DA the power to decide if the death penalty is the right option or no. so the DA decides to make that decision. DA's are not like judges and they get to campaign on specific issues. Since they are getting elected, they are supposed to represent the Travis county and in this case majority of the people in Travis County believe our death penalty system is not working. Rick Reed has every right to come out against the death penalty. Also recently the Nueces County DA decided to impose a moratorium and not seek the death penalty.

So are you saying if the candidate believes the Death Penalty is never justice then it is OK but if they do it to save money it isn't OK?

The Nueces County DA simply indicated he would not be seeking a death warrant while the SCOTUS had the lethal injection issue pending. That's not the same as rejecting the option of the death penalty in any capital murder case.

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Originally posted by persiancowboy:
[QUOTE]Originally posted by Dustan:
The rules of professional conduct require us to see that justice is done. As a minister of justice we have sworn to uphold the law. If a DA has a predisposition to not seek the death penalty where appropriate and warranted, I would have to say that he is violating his ethical duty to seek justice.

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I don't agree with you. Texas legislature has given the DA the power to decide if the death penalty is the right option or no. so the DA decides to make that decision. DA's are not like judges and they get to campaign on specific issues. Since they are getting elected, they are supposed to represent the Travis county and in this case majority of the people in Travis County believe our death penalty system is not working. Rick Reed has every right to come out against the death penalty. Also recently the Nueces County DA decided to impose a moratorium and not seek the death penalty.

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There is a huge difference in prosecutorial discretion than affirmatively refusing to prosecute a capital death case. What if I was to say that I don't agree with DWI's so I am not going to prosecute those? How is that different from an elected DA saying I don't agree with the death penalty, so I will never seek it no matter what the circumstances?

We have jurors for a reason. If the people of Travis County don't want to give someone death, they can make that decision in the punishment phase.