DMN Editorial

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"....The Legislature needs to pass a law that ensures that those charged with crimes in Texas get a speedy trial...."

Maybe I'm just dense but...Why would a "speed-i-er" process make a difference?

The desired implication is that prosecutors have either generally or at least in the 3 instances cited have not played fair, sought the truth nor made sure that justice was served. Perhaps the information they used was unreliable or should have been scrutinized more carefully, but this is a complaint arising from the use of a broad brush about a problem that does not exist. Yes, sometimes the thought of longer pre-trial incarceration induces a guilty plea, but rarely is the prosecutor trying to get such a plea merely to say he "won" a case. And the individual prosecutor has little control over whether this inducement exists. Case settlement is critical to the survival of the system. If languishing serves as an expedient, whether intended or not, it is part of what allows the system to function. Certainly every defendant who manages to post bail has an entirely different outlook on the need for speed. Bold reforms are no doubt on the way. In the meantime I will continue to do what I can to protect the public and "rack up" those occasional convictions of guilty persons that our present-day juries permit. The system is built on trust alright. But in my opinion there is little means of legislating trust.

Speedy Trials: Defendants shouldn't have to languish in jail
06/12/2003

These are hard times for Texas prosecutors, whose competence and ethics are being challenged both in courts of law and in the court of public opinion.

In Swisher County, home of the infamous 1999 Tulia drug busts, District Attorney Terry McEachern is under fire for concealing from the defense and the judge his own doubts about the credibility of an undercover police officer who was found to be not credible.

In Dallas County, which produced the fake drug scandal, District Attorney Bill Hill has acknowledged that his prosecutors might have caught some of the glaring flaws in cases served up by the Dallas Police Department had they not been overworked and cursed with "tunnel vision."

And in Harris County, where the now-closed police crime laboratory is itself under a microscope after a state audit found flaws in its work, two grand juries want to know if the district attorney's office racked up convictions with tainted evidence, and neither wants the help of the district attorney's office to find out. There obviously is a lack of trust here.

One can't blame jurors for being leery of those who fill their canteens from a poisoned well. When prosecutors win cases by relying on faulty evidence, it is fair to ask if they were blinded by the desire to win.

Scandals, Texas has plenty of. What the state needs are bold reforms that restore public confidence in the justice system.

The Legislature needs to pass a law that ensures that those charged with crimes in Texas get a speedy trial.

At the federal level, a defendant is all but guaranteed to get to trial between 60 and 80 days after indictment. Not so in Texas. The right to a speedy trial, while in the state constitution, isn't spelled out in statute. It was once, but that law was struck down. There needs to be a new law that survives judicial scrutiny.

Without it, folks can easily languish in jail for eight or nine months before getting their day in court. The longer the wait, the greater the chance becomes for mistakes, mischief or malfeasance � and the more leverage prosecutors have to induce guilty pleas by threatening to leave defendants rotting in jail.

As the people's lawyers, prosecutors have weightier responsibilities than just winning. They must play fair. They must seek truth. And they must make sure justice is served.

I cannot believe this is the paper that was once so conservative it refused to print the word "Butthole."

The fact of the matter is that a felony court can try about a case and a half per week and that is light-speed. Are the taxpayers really ready to fund and staff the hundreds of additional courts it will take to meet the 60-80 days from indictment to trial fantasy the DMN advocates? As an aside, I fail to see how the Swisher, Dallas and Harris County examples support the editor's call for speedier trials.....

It seems to me that the 3 examples they mention were, or would only be, made worse if a speedy trial system was resurrected.

Is the speedy trial issue really what they're after, or is it just a pretext for attacking prosecutors?

I had a defendant once who wanted a speedy trial. Can't remember his name now but you would think it would stand out since a great whopping overwhelming majority of defendants would rather delay the trial than get it over with quickly. Seriously, this just goes under the category of media ignorance. Mandate a trial within 6 yo 8 months in all felony cases and we will move a lot more cases ... by dismissing them.

Sorry, I meant 60 to 80 days ... but even 6 to 8 months is impossible for those of us who have congested dockets and limited staff.

Hey Tim, as John Bradley once so kindly pointed out to me, you may edit a previous post by clicking on the notepad with pencil icon above your post.

As I hear the National Anthem humming in my ears while reading this missive, I dimly recall taking an oath. Not an oath as a prosecutor or a government employee, but as a lawyer. That oath, unless I am completely disoriented by my blind zeal for winning, bound me and all those who take up the noble profession of law -- prosecutors and defense lawyers alike; plaintiff's and defendants' lawyers alike; government and private sector lawyers alike -- to support and defend the constitution and laws of the United States and the State of Texas and to demean ourselves in practicing the pursuit of those principles. If the problem of "justice delayed is justice denied," which seems to be the disjointed premise of the News's editorial board, exists in the measure suggested by the editorial, the problem is systemic. I see no mention of the representational obligation upon defense counsel to call to the attention of the trial court those delays which prejudice the rights of the defendant. I see no exhortation to trial judges to speed up their dockets or develop innovative docket management techniques which avoid prolonged pretrial detainment. By the same token, I see no real, practical, constructive suggestion for fixing the perceived problem. What I do see is Southwest Airlines-style, cattle call boarding of the bandwagon. A perceived problem always needs a safely-targeted scapegoat. In this case, we're it. So, Shannon, my answer to your query would be the latter.

Shannon, you said exactly what I was thinking when I asked if speed was truly the answer. The only thing speed is good for is NASCAR and additional revenue from tickets!

How about if we all start posting the excuses we hear from defense attorneys on why they can't go to trial?

Mirroring what Tim pointed out, there is no reference to defense motions to delay trials. I think that the DMN had some editorial space to fill and "winged" a "God, Country, and Apple Pie" observation without even studying to see if there is a problem and how it is caused.

D(a)MN the editorial.

I'm afraid I'm forced to give an "F" to the DMN editorial board on this one. Its lack of internal logic, its lack of facts, and most of all, its gross distortions and dishonesty compel me to give this grade, even in these times of hyper grade inflation.

The editorial starts out by claiming prosecutors have lost the confidence of the courts and the public. To buttress this claim, it points out the Tulia fiasco (which may or may not have been a prosecutorial failure), the HPD crime lab (which the H.C.D.A.'s office quickly moved to correct), and the fake dope scandle in Dallas, which again the DA's Ofc. moved to correct. The editorial fails to mention these facts, which is grossly dishonest.

The editorial then jumps over to complain about the "problem" of a lack of speedy trial for defendants. The editorial fails to explain what the nexus is to the previous "problem" it has ID'd--that of bad prosecutors. Nor does the editorial explain that defendants are now appointed counsel--at a great waste of public funds--often before the DA's Office even knows there are charges against them, and that the defendant can always move for a speedy trial which will move his case to the top of the trial list. The editiorial also failed to note that defendants very rarely ask for a speedy trial. Of course, if the public knew these facts, it would make the whole point of the editorial ridiculous. But failure to point this out indicates either gross incompetence on the part of the editorial board--because they didn't bother to properly research their subject--or dishonesty if they knew this but didn't want to reveal it.

The editorial then proposes that the state needs "bold" ideas, like a very short time frame to try a case, or the crook goes free. It points out that the feds do this, so it must be ok for the state to do so as well.

Again, the paper reveals its incompetence or dishonesty, by not pointing out that the feds cherry-pick their cases, and have typically much smaller case loads. By necessity they reject more cases than they accept. They can do this, because if they reject a case because they don't have time to tend to it, it can be picked up by the state. In those jurisdictions which have only federal prosecution available--like felonies on Indian reservations--only the most serious of felonies are accepted for prosecution, and as a result crime is an extremely serious problem there.

The editorial is a shining example of a problem that vexes not just Texas, but the U.S. and indeed the West in general, namely dishonest and incompetent journalists. The Jason Blair scandle at the NYT is just a tip of the iceberg. So serious is the problem of lying newsmen, that the NYT has set up a hotline for people to send in examples of dishonest NYT reporting. And, as anyone who has read the DMN, The Houston Chronicle, The Austin UnAmerican, or most any other major paper knows, the problem of dishonest reporting appears to be embedded in the journalistic culture of the US. And not just the US. The BBC is in hotwater for throwing caution to the wind and running viturally any piece of anti-American propaganda it picked up during the recent Gulf War. In fact, the Al Jareeza staff are mostly former BBC staffers. They seemed to have had been equally at home reporting for the BBC or Al Jareeza.

Perhaps this is why public opinion surveys consistently show that the public has considerable trust in prosecutors, but newsmen are rated slightly below used car salesmen.

It is true that there is usually little delay between indictment by a federal grand jury and a trial of the matter. There is a federal speedy trial act.

However, given the federal statute requiring a speedy trial after charges are filed, it is my impression that the federal authorities do not arrest or indict, if they have a choice, until they are ready for trial. There appears to be a tendency to leave the bad guys running loose until they have all the lab reports in hand, expert opinions in hand, pen packs in hand, offense reports in hand and witnesses located and interviewed - is that what the DMN advocates. Don't arrest or indict for an alleged violation of state law until the State is totally ready for trial and has a time slot in Court available to try them? Leave the criminals running loose and not arrested until they can have their day in court withing 60 days. A statute requiring that the criminals be left free to prey on the community as the criminal will without the wake up call of an arrest would seem to be what the DMN is advocating. Such a statute would seem to satisfy the DMN's complaint. However, ...

Has anyone else seen a federal task force come into town, run multiple search warrants, not arrest anyone, leave town and then months later get indictments and seek to find the bad guys that have been running loose (and continuing to vilate the law)? That is the downside of the federal speedy trial law for our civilization.

It is frustrating when the national or statewide (or international) media runs stories without having checked their sources or even asked the primary people involved with it what the facts are and what their perspectives are. It is much easier (and more profitable) to produce editorials and news stories that are inappropriately slanted. Journalists often are not experts in what they write about, and very few of them have any legal training at all. We most often see this when a person convicted of a capital felony comes up with a wild story right before their execution. Here, three serious problems are blamed on Texas prosecutors without any analysis, and then an unrelated issue is distortedly attached to them. Is the TDCAA going to send an intelligent response to the Dallas Morning News? I don�t think that such a vicious, unwarranted and poorly thought out editorial should go unanswered.

A reply is without a doubt in order. By all of us. One of the things we, as prosecutors, are most guilty of is letting media lies and distortions go unchallenged. Whether motivated by ethical limitations or otherwise, in too many instances we reply with a "no comment" or don't reply at all. One of the things I learned in dealing with the media in our one little "media darling" of a case is that there are actually some reporters (not a lot) out there who will take the time to try to get it right and acurately report our side. There are others who come into a case or issue somewhat biased and will ultimately change their point of view once we take the time and make the effort to educate them on the truth. The main thing to keep in mind is that the public is still overwhelmingly on our side and wants to see that crime is punished and they remain safe and secure in their homes. The media knows this, and it is something we shouldn't just take for granted. Of course we always need to try to maintain honesty and integrity and "do the right thing." Taking the time to respond to these editorials, whether our replies get printed or not, is important and worth our time and effort. The New York Times scandal (and it couldn't have happened to a more deserving outfit) has made the media just a little bit gun shy about printing what is subsequently proven to be a bunch of crap. Now would be a great time to take advantage of that attitude and get our side across!

This just keeps getting better and better! According to this DMN editorial, the Legislature passed HB 614 on mental retardation ... who knew!

"One of the session's biggest disappointments for criminal justice reform advocates was failed legislation that would have required a trial judge or jury to determine if a defendant is mentally retarded before the trial in capital cases. The measure that did pass required post-trial determination of mental retardation."

Criminal Justice Editorial #2