Sunday, May 23, 2010

DA convicted of misusing asset forfeiture funds

State Sen. John Whitmire's asset forfeiture reform legislation died last session during the infamous Voter ID meltdown in Texas' House of Representatives, but the conviction of a District Attorney out of Kerrville for misuse of forfeiture funds should put the topic back on the Legislature's radar screen. Reports the SA Express News ("Former District Attorney sentenced in Kerrville," May 22):
Former District Attorney Ron Sutton on Friday said state officials eager to tighten statutory controls over forfeited funds orchestrated his prosecution to cast him as evidence of a problem.

A defiant Sutton made the claim minutes after being sentenced to two years deferred adjudication on two counts of misapplication of fiduciary property worth $20,000 to $100,000, and being ordered to pay $20,000 restitution.

Not so, said special prosecutor Bill Turner and Jerry Strickland of the attorney general's staff, which investigated Sutton, who was the lead prosecutor in the five-county Hill Country judicial district for 33 years until his retirement in late 2008.

“Nobody at the state level has tried to influence me in the investigation and prosecution of this matter,” Turner said.

This outcome is almost as surprising as the fact that charges were brought in the first place. It's not as though Sutton is the only prosecutor who has violated asset forfeiture laws. DAs for years have treated asset forfeiture income as their own personal fiefdom but there's historically been nobody out there grading their papers. In this case the central issue was a high-profile trip to Hawaii and the lack of auditing and required approvals for expenditures.

“The law specifically requires that seized funds be audited, maintained in the county depository, and requires commissioner court approval for expenditures for employee expenses,” Turner said. “These safeguards were not in place for funds forfeited in the 198th Judicial District Attorney's Office.”

That lack of accountability paved the way for misuse of the money, he said, noting, “This was a case of bad judgment, as opposed to greed.”

Turner said the six-day Hawaiian stays for bar conferences weren't valid expenditures because work was only conducted on three days, and because Sutton covered the travel costs of workers' spouses.

He also said the state constitution prohibits staff bonuses like those Sutton paid of $500 and $1,000 to 11 subordinates between 2002 and 2008.

No charges are expected against the prosecutors, secretaries, probation officers or spouses who benefited from the improper expenditures.

“The gatekeeper is responsible for the expenditure,” Turner said. “The recipients are not.”

Sutton said he didn't fight the charges because he couldn't afford a trial — which could have cost as much as $50,000 — nor risk being convicted.

Sutton complains that he couldn't afford to take the case to trial so he pled guilty even though he (says he) believes he is innocent. Well, cry me a river! How many defendants in the identical position has Sutton coerced into plea deals, likely patting himself on the back afterward for being such an effective prosecutor? What's good for the goose will do just fine for the gander, thank you very much. Prosecuting over the trip to Hawaii alone might have seemed a little chickenshit, but the bonuses to staff were flat out illegal if they weren't approved by the commissioners court. And he's not the only DA doing that, either.

The best way to solve these problems would be to assign asset forfeiture income to non-law enforcement purposes - in Indiana all seized money goes to schools - so there's no temptation to pad the budget by pursuing forfeitures. Counties want to keep the money saying "we found it," but they also "found" prisoners sent to TDCJ and the state pays all those costs. Why should counties keep income resulting from prosecution but the state pay all the costs of punishment?

Chairman Whitmire's bill didn't go that far, proposing to strengthen controls over the money but leaving it in the hands of law enforcement. Since his legislation came so close to passage in 2009, expect Whitmire to take another crack at forfeiture reform next session, at which time I suspect his committee will be revisiting the details of Mr. Sutton's conviction.

See related Grits posts:


Anonymous said...

Nothing but selective enforcement here.

So when do we start with city councils, commissioners courts, school boards, the legislature for the same?

Anonymous said...

Are you saying to give the forfeited funds directly to the schools or have some obese agency agency like TEA or the lege disberse the money?

Many school boards in Texas are not good stewards of taxpayers dollars so why would we give them this money? To astroturf another 1A or 2A football field?

The only way I would support such a move would be to require the money be earmarked for academics only and require a mandatory audit of expended funds.

None of this money could be retained by the state for any administrative costs.

Money could not be expended for high school sports and travel or training of staff.

Anonymous said...

The good Senator should also look into the hotcheck fees collected by DA's offices. Thousands upon thousands are collected by Da's for their sluch funds.

Gritsforbreakfast said...

8:27, then put it toward prisoner reentry or roads, I don't really care. The point is the lawyers and cops seizing the money shouldn't get to keep it. That creates corrupting incentives.

Gritsforbreakfast said...

BTW, I agree this is selective enforcement. They could bring essentially similar charges in LOTS of jurisdictions, especially over pay and bonus issues.

Anonymous said...

Who represents the government in the Indiana seizure cases, Grits?

Gritsforbreakfast said...

@3:01: Don't know much more about forfeiture in Indiana other than that the money goes to schools, which is a tidbit that came out at a public hearing on Whitmire's bill. I assume it's DA's who sue for the money, just like here, but I don't know. My point is, whoever does the suing, if the DA's office gets to KEEP the money it creates corrupting incentives.

Anonymous said...

"Corrupting incentives?" Like the contingency fee arrangements that thousands of PI lawyers enter into on a daily basis across the state? Any number of public servants handle discretionary money and routinely make decisions as to how that money may be spent. Why is it that prosecutors are, in you judgment, inherently untrustworthy? As you point out, Chapter 59 expenditures are subject to Commissioner's Court oversight. This is likely how Sutton got caught. And he lost his job and was prosecuted. The system worked. I really don't see how this exemplifies the need for the systemic reform you're advocating. My guess is that for every act of misconduct like Sutton's, there are hundreds of thousands of instances where seized money is being used for good and legitimate ends--and saving taxpayers money in the process.

Gritsforbreakfast said...

8:13, PI lawyers aren't involved in seizing or spending asset forfeiture money. What if anything does that have to do with this issue?

As for prosecutors' trustworthiness, I'm in the "trust but verify" camp, and IMO there's been way too much of the former and not enough of the latter. What's more, I suspect that if all their books were audited, Sutton wouldn't be the only elected DA subject to criminal prosecution.

Atticus said...

Your headline and your lede are incorrect, for if he received deferred, he was NOT convicted...

Gritsforbreakfast said...

Atticus, would "sentenced for" be a suitable substitute for "convicted"? That's what the Express-News used.

Good catch.

It seems like a conviction because he's on probation and has to repay $20,000! But I realize technically you're right.