Texas DA and Court of Criminal Appeals primaries: A podcast excerpt

In the February 2018 episode of the Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed several District Attorney primary races which haven't received much attention as well as important Court of Criminal Appeals races up this cycle (including a serious challenger to Presiding Judge Sharon Keller). Give it a listen:


See a recent link roundup here related to these DA races (evaluating primaries in Dallas, Bexar, McLennan, Smith, Walker, Victoria, Denton, Smith, and Galveston counties). Find a transcript of this segment below the jump.


Transcript: Segment on Texas District Attorney and Court of Criminal Appeals primaries from the February 2018 episode of Just Liberty's Reasonably Suspicious podcast.

Amanda Marzullo: Okay. Texas Primary Elections are coming up on March 6. There are several District Attorney Contest and couple of Court of Criminal Appeals races, of which everyone should be aware. In Dallas and San Antonio, the action is in the Democratic Primary. Big D Democrats are choosing who will oppose the Republican Incumbent Faith Johnson, who was appointed by Governor Abbott.

Meanwhile, in San Antonio, Democratic Incumbent Nico LaHood faces a strong challenge in a race that has become combative and increasingly negative with LaHood lashing out at critics and constituents alike. So, Scott, what do you make of these races?

Scott Henson: Well, these are the two highest profile DA races in the state, no doubt. In Dallas what's fascinating to me is for the first time, in my adult lifetime for sure, we're seeing an election where two candidates are competing to see who can be the most reform minded. Who's the most reform minded DA. That's extraordinary and frankly even Faith Johnson, the Republican in Dallas, has made a lot of noise and movement toward some of these reform angles. So the debate at the Dallas DAs race being so reform oriented, I think, is fascinating.

With Nico LaHood, this is an odd race because it's less probably about reform or any sort of typical issues than this very odd man who is the incumbent. He's being attacked, not necessarily for issues around the DA's Office, but about being against Muslim immigration and being against people having their children vaccinated. Some of these weird issues that he's brought into this debate of sort of isolated him within the Democratic Party. Then, he's made some enemies in the Defense Bar in San Antonio, too. That's where his strong challenge has come from.

Meanwhile, Texans should be aware of a few other important Prosecutor races. In McLennan County, DA Able Reyna faces re-election at a time when cases from the Twin Peaks Biker Massacre are falling apart. With his office facing most of the blame for Grandstanding and overreach.

In Victoria County, the daughter of a former DA is running against the incumbent on a reform agenda. Chastising him for a failed policy of taking every first offense DWI case to trial. Mandy, what do you think about these races?

Amanda Marzullo: I think these two cases are important to watch because I think they're a big test on voters controlling Prosecutors who have gone too far. So in McLennan County, that is a very strange situation. Our listeners will remember the Twin Peaks biker massacre was a situation where they rounded up over a hundred people, almost two hundred people who were at the scene of a crime and charged them with a felony. Many of them lingered in jail for several months, which presumably lost their job, it had huge economic effects. They have yet to get a single conviction, three years later.

Scott Henson: Not only have they not gotten a single conviction, but the DA's Office is dropping out of cases. They tried to get the Attorney General's Office to take them over. The Attorney General's Office said no. So, it's all a complete mess. It's fascinating that it's all come to a head right before the Primary. Probably the worst possible time for Abel Reyna, but that's what it is.

Amanda Marzullo: Then, when it comes to Victoria County, you're dealing with a policy that would generate a huge backlog. Taking every single case to trial is an incredible demand on the system.

Scott Henson: It apparently was a complete catastrophe. There's always been this sort of fantasy laid out among the defense bar that, oh well, if we took every case to trial, it would shut the system down. Well, ironically, the Prosecutor here tried that. He tried to take every case to trial.

Amanda Marzullo: Not every case, just the DWIs.

Scott Henson: Just the DWIs. Two years after he's into the policy, apparently their courts are still completely overwhelmed. It's still causing problems. So, you're right. These are examples of going after Prosecutor overreach in a very specific way that's kind of unusual.

Amanda Marzullo: Yeah, so we'll see what happens.

In Denton County, challenger Brent Bowen says the reputation of incumbent Paul Johnson's office has been marred by lawsuits and misconduct. In Tyler, where the DA is not running for re-election, the Smith County District Attorney's Office released an audit that amounted to an opposition research file on one candidate while the sitting DA supported the other. The targeted of the information released, Jacob Putman had complained on the campaign trail of, "A good old boys club in Smith County for whom it matters more about who you know than what you did." So, Scott, what do you make of these two cases?

Scott Henson: Smith County is actually my home county. I grew up in Tyler. Mr. Putman is not the first to say that there's a good old boys club there. Or that certain attorneys may get better treatment than others. These have been allegations that have swirled around Smith County Criminal Justice for decades. Really, what's interesting here is that it's the first time that those issues are making their way into a DA race. So, as such, you're kind of not surprised to see the DA's Office jumping into the race and trying to put their thumb on the scale. We'll see what happens. Tyler's a very insular place and Mr. Putman is a brave man to take that stance.

On the other side of the coin, a couple of the other DA races and GOP Primaries are being fought along a more traditional axis. In Galveston, Jack Roady faces a primary challenger accusing the incumbent of being soft on crime. In Walker County, the county seat of which is Huntsville. The First Assistant of incumbent David Weeks, is battling it out with a civil attorney whose supporters say the DA's Office isn't tough enough on DWI. So, Mandy. What about these races caught your eye?

Amanda Marzullo: Well, the Walker County case in particular is catching my eye because of the focus on DWIs. As you noted in our discussions leading up to this, the Walker County position on DWI is probably driven by the Driver Responsibility Surcharge. Which listeners will remember, it is a non-waivable surcharge that they put on your Driver's License if you have certain offenses. In the case of DWIs, it's fairly hefty. It's $1,500.

Scott Henson: Per year for three years, in fact.

Amanda Marzullo: Yeah. So that is an incredible sum, particularly in some areas of the state where incomes are low. So it's understandable that defendants would seek pleas deals that would be to a different offense and the Prosecutors might agree to it, if the circumstances merited it.

Scott Henson: Right. This has come up in the Legislature in recent years. One of the reasons the Mothers Against Drunk Driving finally came out for alternatives to the Driver Responsibility Surcharge was that there's pretty strong evidence that quite a few District Attorney's around the state are pleading some of these DWI cases to things like reckless driving, or blocking a roadway, or things like that. So that the person will not have to get this surcharge. It has been intentional, and it had been cited as a reason why DWI convictions have declined in Texas significantly, even as the number of arrests have stayed about the same. This is about the Driver Responsibility Surcharge creating such problems for the courts in so many other ways that the DAs just decide, hey it's not worth the hassle and I know that person is never gonna be able to pay that $1,500. It's just going to cause them to not have a Driver's License and be-

Amanda Marzullo: Probably end up back in front of them under a different offense.

Scott Henson: That's exactly right. So that is what that's about, it's unfortunate to see that office being attacked as soft on crime for that policy. That's actually a pretty pragmatic policy and it's unfortunate that that's the terms of debate on that.

Amanda Marzullo: I hope it will change.

Meanwhile, there are a couple of competitive Criminal Appeals races in the GOP Primary. Presiding Judge Sharon Keller faces a strong challenge from Justice David Britches from the Fifth Court of Appeals. There's a three way race for an open seat to replace Judge Elsa Alcala. Judge Barbera Hervey ran unopposed. So, Scott. What stands out to you about these races?

Scott Henson: First of all, let's just say for the record, how much are we going to miss Elsa Alcala? I mean, oh my gosh, she has been wonderful. She has been a bright shining star on the Court. For someone who's only been in ... I guess she was appointed and then had one full term.

Amanda Marzullo: She was a District Court Judge before joining the court.

Scott Henson: That's right. Well, she was on the First Court of Appeals in Houston before she came here.

Amanda Marzullo: Okay.

Scott Henson: So, she went District Court, Court of Appeals, then Court of Criminal Appeals. But she's been a bright star and it's really sad to see her go. Many of her dissents wound up being essentially US Supreme Court majority opinion fodder, wwhere she dissented in Texas cases and the Supreme Court ended up siding with her. That's happen a number of times now. So thank heavens for her and I'm sorry to see her go.

Amanda Marzullo: Yeah. No, we will miss you Elsa Alcala.

Scott Henson: Among the races here, the Sharon Keller race is the one that has the potential to be a huge blockbuster. We are in this weird time where there's an incredible hostility toward incumbents. We've seen in these Court of Criminal Appeal races in the past few cycles, that because these are such low information races where voters know almost nothing about any of these people. They kind of will just vote for anybody and anything goes. The people who got into the run-offs a couple of years ago. Or people that didn't even run real campaigns necessarily sometimes. Or who were not really engaged. All of a sudden, they're serious players.

So, having a sitting Appellate Court Judge running against her is dangerous. Who knows that she's been there 24 years. The odds are she'll make it, but if she were to lose, that would be a huge change on the Court. She's sort of the intellectual leader of that Government-Always-Wins faction and if she goes, that will change the dynamic on the Court quite a lot.