Wednesday, September 09, 2015

Privately funded prosecutions at the Travis County DA

A joint investigation by the Austin Statesman and the Texas Tribune exposed a pay-to-prosecute arrangement between the Travis County DA and a private insurance company. Go here for details. A coupla thoughts come to mind:

There are numerous precedents for this sort of special treatment, nearly all of them problematic. Most recently, Texas prosecutors have begun to distance themselves from payday lending companies with whom they'd partnered for years to buck up their hot-check funds.

Historically, in the nation's early days there were no district attorneys - nor for that matter state nor federal penal codes - and prosecutions were private legal actions undertaken like any other civil case. Texas' court of inquiry procedure - creatively used to pursue exoneration (successfully) for Timothy Cole and (unsuccessfully) for Todd Willingham, and an indictment for Williamson County Judge Ken Anderson - is a vestigial holdover from this primitive practice of private prosecutions. Its formal, technical function is to determine whether there's probable cause to bring an indictment outside the grand jury process.

So there's precedent for this sort of arrangement, but it's a legal and historical anachronism. And doing it just for one company smacks of pay-to-play. Give the full article a read; this seems like a really bad look.


Soronel Haetir said...

I actually believe a strong private prosecution option would be a good thing for pursuing those cases where the DA is not interested for institutional reasons.

Gritsforbreakfast said...

You would, Soronel.

OTOH, do you endorse the pay-to-play mechanism in Travis County?

I don't see much need for private prosecution myself. That's why God created civil lawsuits.

Soronel Haetir said...

No, that scheme sounds more than a bit shady.

Anonymous said...

At this very moment several attorneys that practice Family Law in Travis County are doing a cost-benefit analysis to determine whether hiring the District Attorney's office to bring charges of Domestic Abuse will yield a profitable payoff in terms of winning divorce and child custody cases.

Anonymous said...

This is troubling, but it is, unfortunately -- and as you astutely allude to with your reference to the Willingham case -- not unusual when it comes to insurance companies using public prosecutors to improve the company's bottom line. Home insurance companies have long worked closely with their local prosecutors on arson claims -- and no wonder because the arrangement has been mutually beneficial. Law enforcement doesn't have to devote as many resources to developing the evidence (because the insurance company can compel the claimant to provide sworn testimony in order to claim under the policy) and, if the fire is proven in court to be arson (and, inevitably, fraud because the claimant's testimony must be sworn), the insurance company doesn't have to pay the claimant-turned-criminal-defendant. Those who invest in insurance companies may consider this a win all 'round, but the symbiotic nature of the relationship between prosecutors and insurance companies in these cases raises questions about whether this is a wise use of prosecutorial discretion (just how many of these purported arson cases are rejected?) and whether public funds should be spent to assist a private company's business. Thank you for furthering the discussion with this post.

tiapa said...

You have got to be kidding me! Grits is my main read every day, but I tend to skim articles that don’t perk my interest. Well, shame on me. I spent the morning going back through the paid-to-prosecute threads as well as the Texas Supreme Court’s rulings on this. My eyes are spinning in my head.

This seems to be out of some mafia business handbook. What is the difference between paying off a prosecutor to get something done and paying a prosecutor to get something done? Gee, can a private citizen get in on this gig? The richest party wins the case? Leg irons for a workman’s comp case? Can this now legally trickle down to local law enforcement? And the government’s claim they operated without knowing all the tenants of the “contact” is downright spooky.

I read the following in the 2014 modification of the Funding Agreement Between Texas Mutual Insurance Company and The Office of the Travis County District Attorney:

“l. Amend paragraph 2.02 Payment of Services to read as follows: Texas Mutual will pay the salary (including associated benefits) and expenses of two assistant district attorneys and three support personnel, as well as incidental expenses, such as witness expenses and temporary help, as needed. The annual amount paid under this Agreement may not exceed $430,266.”

How many mob movies have a line such as “Don’t worry, we got the (cops, judge, DA) on our dole”?

The Texas Tribune article on the Texas Supreme Court’s ruling by Jay Root says:

“Division spokesman John Greeley did not say whether any actions had been initiated against Old Republic, but released a statement about the state's use of its powers to sanction insurers who harm claimants.

"The Texas Department of Insurance, Division of Workers’ Compensation, monitors compliance within the workers’ compensation system and sanctions system participants who violate the Workers’ Compensation Act and Rules," Greeley said. "In 2014, the Division ordered administrative penalties totaling more than $2.2 million, $2 million of which were against insurance carriers for claims handling violations."

Even if the division does sanction Johnson's insurance company or agents, McClellan noted that administrative fines against insurers don’t provide any direct benefit to the worker or family members, or give them any meaningful role in the process.”

What? The state gets the money and the victim of malicious prosecution gets nothing?

To quote the Wikipedia article on Private Prosecution :
A private prosecution is a criminal proceeding initiated by an individual or private organization (such as a prosecution association) instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain (or are themselves) barristers.


john said...

Folks seeing higher-up government taking massive bribes etc. I often wonder if that makes the "lower" government officials and/or workers feel they should get in on it? It was supposed to be an honor system.

Anonymous said...

I personally wouldn't care what type of 'monkey' is utilized to prosecute criminal cases as long as both sides are mandated to sign off on a Formal Pledge (that becomes part of the Record since client case files can be shredded) that forces both sides to allow the jury to render the verdict. Once both sides have filed the Ready-for-Trial notice, they both must be Ready for Trial all the way to verdict. Anything less, well, that's a goddamn joke being played out 95 + percent of the time and 'We' are paying for it (publicly funded fake jury trials). Since you will never see an R, D or, Inbetweener endorse or file a bill creating such a Formal Pledge, the games (fake jury trials) will remain a running joke regarding Texas and we deserve what we allow. It's not called the Texas TapOut (trading one plea for another aka: throwing the fight) for nothing. One plea per Defendant, if you want to Tap, do it during arraignment or be fully prepared to go the distance.

As it is, the jury is only used for eye candy all the way up until the moment that the Defense and Prosecution Teams perform the Texas TapOut, where they are thanked for their service and let go. Kinda hard to remain a proud Texan once you realize you are participating in and funding a state-wide fraud. And someone said crime doesn't pay. If you don't vote or pay taxes, you are excused.


Anonymous said...

Since it is apparently legal where do I go to buy a DA?

Anonymous said...

So, if a few of us can come up with enough money, can we get a Travis County prosecutor from the public corruption unit to investigate and prosecute Jack Skeen and Matt Bingham?

Gadfly said...

On hot-check related stuff, payday loan companies have always had the option of civil remedies. I suspect similar is true in just about any case where a private firm partners with a DA.