Attorney General John Cornyn has said that he will propose a bill that will require prosecutors to seek the death penalty for persons who intentionally cause the death of a peace officer. For more info, go to:

http://www.austin360.com/statesman/editions/thursday/metro_state_1.html

Are there any problems with such a law?

Yes, there are problems. First, the proposal would reduce the discretion of prosecutors, and eliminate the ability to determine the appropriateness of seeking the death penalty based on the facts of a specific case. Second, would such a proposal be consistent with ATKINS? If the ONLY available punishment is the death penalty, and the defendant cannot be executed under Atkins, then what would the punishment be? The proposal looks good, sounds good, and is most likely politically popular, but I think that careful consideration will lead to the conclusion that this is not a good idea, and is not necessary because prosecutors will continue to seek the death penalty in appropriate cases.

Is there a prevalent problem of Prosecutors not seeking the Death Penalty in such cases?

If so, then Prosecutors should be urged and encouraged to change their ways.

If not, then Cornyn is merely making a proposal that sounds good to the electorate.

In either case, I don't think the Legislature should tie the hands of Prosecutors in this manner.

On another note, I am not currently a Prosecutor, but I'd like to be. I've sent a few resumes out to offices listed on this site as having openings.

I would suggest that Mr. Cornyn give us something that is meaningful. I suggest that he propose a bill that requires the State (or, even better, the Feds, he is running for the Senate) to reimburse counties for expenses related to death penalty prosecutions for cop killers--from investigation through execution. I assume it is fairly rare that the death penalty is not sought for cop killers. The problem is paying for it. While some assistance is already available, it probably isn't nearly enough and most likely reserved for jurisdictions that can't prosecute at all as opposed to jurisdictions that can, but must make up the shortfalls in other important programs. The Legislature and Congress have far greater (and more efficient) ability to raise revenue than commisioner's courts.

Are there any ethical issues for a law that would require a prosecutor to seek a particular punishment, regardless of the state of the evidence?

Rule 301 provides: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous." Comment 3 notes that a cause is not frivolous simply because the prosecutor believes the State's position "ultimately may not prevail." Plus, the fact that the law requires the prosecutor to seek death means that the prosecutor has a good faith basis on which to seek death. I don't see any other ethical rules that apply to the issue.

Doesn't the proposed law create a separation of powers issue, too? After all, in Meshell, the Speedy Trial Act was knocked off because it encroached on a prosecutor's discretion to represent the State by forcing the prosecutor to be ready for trial by a certain date. Doesn't a law forcing the prosecutor to seek a certain penalty similary encroach on his authority? I'd say its even worse. Moreover, the Legislature cannot accomplish the same end by making death the only punishment for murdering a police officer because such a law would violate the 8th Amendment. See Woodson v. North Carolina, 428 U.S. 280 (1976).

What are the consequences of ignoring such a law? Who would enforce it? I can't hardly see the defendant objecting or the judge risking reversal by ordering the prosecutor to follow it. It all sounds a little hollow to me.

Well, couldn't your local political opponent file a mandamus against you?

Good politics makes often makes bad laws.

Would a political opponent have standing to file? And I suspect no politician would make such a decision (not to seek the death penalty) in an election year. The Austin case sat pending for a year before a decision was made not to seek the death penalty.

You guys are so silly sometimes. Let's see, mandatory prosecution for death -- if defendant intentionally causes the officer's death. Well, I guess if I'm a rational D.A. with a not-real-strong case for death, maybe I simply prosecute for knowingly causing the officer's death and take my mini-cap. conviction? If you think this is really an issue, ask yourself how often anyone struggles with the mandatory life sex offender punishment under 12.42(c)(2). Maybe I just don't get out, but I've never personally seen one. Cornyn's publicity stunt won't go anywhere unless he offers it with a companion bill taking away all prosecutorial discretion to file cases and prosecute them (which, with his track record, might not be out of the realm of possibility).

Anything meant by starting off with "You guys"?

The conflict I see in the "General's" proposal is not in the proposed statute but in Article 2.01, Tx.C.C.P.

Let me first first go on record that I personally cannot imagine a circumstance where an officer has been intentionally killed while lawfully discharging an official duty that it would not be appropriate to present the jury with all options authorized by law for that particular offender. When it comes to cop killers, I think Mr. Holmes of Harris County fame put the issues of whether to seek death quite well in the recent issue of Texas Monthly.

To effect the "General's" proposal I would submit that Art. 2.01 would need to be modified to (1) delete "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done"; or, (2) to provide that "justice" in this section means that a prosecutor should always be required to present a judge or jury with all options that the facts of a case might offer.

Right now "justice" in charging decisions is pretty much as seen by the prosecutor. If a prosecutor does not see death as justice in a case involving the death of a peace officer, I would submit that Art. 2.01 mandates that the prosecutor shall not seek death. At this time, if a prosecutor's ideas of justice don't reflect those of the community he serves, the remedy is at the ballot box.

Therefore, in my opinion, this debate should not be about a sole issue of preserving prosecutorial discretion, but should be structured about a debate as to whether a prosecutor should continue to be required to seek what he or she personally believes to be justice in each case.

Shall the quest for justice be left to judges and juries of this state and abandoned by my brothers and sisters serving as prosecutors?

I expect you know what I meant by "you guys," John. Anyhow, "you goofy Johns" seemed kinda narrow . . .
But back to the real topic, I'm sort of surprised by the last entry -- I can think of various situations where a request for death would not be "justice" but would be a waste of taxpayers' money, even where the defendant kills a police officer or other public servant, and I doubt anyone who knows me would accuse me of being death-adverse. The most obvious examples involve defendants with mental problems: retardation, schizophrenia, alzheimer's, etc., especially where the shooting/killing is irrational or sudden and the offender has no criminal or violent history. Basically, the only way to decide rationally and responsibly whether to seek death is to evaluate each case on its own merits and the state of the evidence available, and no one can do that job better than the individual elected district attorney. I would suggest that Mr. Cornyn and those who would question individual D.A's judgments have never walked that particular mile or thought about the issue in concrete terms. A jury verdict makes a lovely political statement, but it's a hell of a commitment to invest tax dollars, especially in less populous counties, unless the needle is actually likely to land in the defendant's arm.

The fact of the matter is that Cornyn is in a dog fight for US Senate and needs issues. The State Constitution give incredible power and discretion to her elected district attorneys and it ought to stay that way. The last thing we need is someone in the legislature or the AG's office telling our local officials how to run criminal prosecutions.

If the statute were to require that the Prosecutor not waive death in an intentional killing of a police officer, what happens under the statute when a Murder, no capital facts alleged, indictment comes out of grand jury and the prosecutor shrugs and say thats what I have to prosecute. When asked why, the prosecutor shrugs and says he wasn't there during deliberations. Will the prosecutor be required to dismiss the indictment and present it again to another grand jury and another grand jury and ... until he or she gets a Capital Murder indictment. What if an agreement is reached with the Defense to have a jury trial on an information alleging Murder? A prosecutor should not be burdened with a statute that the prosecutor has to figure a way to get around to do what he or she sees as justice.

As to previous posts, I too can see that a young offender with no violent history and no criminal history might not be sentenced to death, but I personally find it difficult to imagine not presenting all options to a jury if it was an intentional(!) killing of an officer doing his duty. I can't say I wouldn't, but I just can't imagine the circumstances. I came from a small county and under the financial issues for a small county in capital litigation, but an intentional killing ... More relief from the State treasury would be a positive thing.