The Collin County Observer™

And Now For the Rest of the Story. . .

Posted on October 27, 2009 by Hunter Biederman
Frisco DWI Lawyer & Attorney Blog

I have not written about a recent DWI incident because I didn’t want to soil the names of prosecutors accused of wrongdoing. Those accused have now found their names in print and put on TV. I have chosen not to add their names to this article.

WFAA & the Collin County Observer have published stories, so I guess on a small scale, the cat is now out of the bag about the “story.” Which in my opinion is not much of a story at all.

The truth is, if these reporters personally knew the stellar reputations of the two prosecutors accused and the great reputation of the defense attorney accused versus the young prosecutor accuser, they wouldn’t have been so quick to believe what they heard from the accuser.

The 30 second recap of the story is that an “iron-clad” DWI case was effectively dismissed by a Collin County prosecutor by holding a trial and not putting on any evidence.

Brett Shipp from WFAA and the Collin County Observer got this one way wrong. At the very least, they made a premature jump to conclusions:

The first conclusions asserted are that the citizen accused is definitely guilty and there would be plenty of evidence to prove his guilt in court.

The second conclusion was that the actions of the prosecutor was motivated by some ulterior motive.

Assuming the citizen is guilty and there is enough evidence to prove his guilt can often be a big leap in a DWI case. I do not know the facts of the case. But from courthouse talk, I am told that the citizen burped seconds before the breath test. Anyone who regularly practices in the area knows that this would invalidate the breath test. Additionally, the state’s own experts who are required to certify the test will not do so if someone burps within the required 15 minute observation period. This is because the machine would be testing the mouth alcohol instead of the alcohol from the lungs. No jury would ever hear the results of the test.

If a prosecutor has this knowledge, they may a) try to put on the evidence anyway, knowing it is no good, or b) self-regulate and not offer the breath test evidence. Apparently the prosecutor chose the latter. So then, what is left is the facts of the case without the breath test.

Without going into too much detail, often young, just out of school prosecutors think cases are “iron-clad” when they are anything but that. As a DWI attorney, I could give a list of DWI not guilty verdicts in cases with seemingly significantly worse facts where prosecutors thought the case was a slam dunk. Especially in cases where there are no chemical tests. There is a reason why the State is pushing so hard for blood tests when people refuse breath tests – because it is difficult to obtain convictions on opinion testimony alone of some police officers.

I have heard that the citizen accused in this case looked stellar on the tape. Just because a person is weaving and cant stand on one leg doesn’t mean they are guilty of DWI. So again, the prosecutor may have had doubts about the guilt of the person, who is by law required to "seek justice" can then either, a) put on the evidence anyway, or b) do what apparently was done in this case – not put on the shaky evidence.

I believe the WFAA report deceives the audience in what I gather is an attempt to shield the true source of his story – a young prosecutor accuser. The report purports to display two citizen callers as the people who are upset about the trial results. And they very well may be upset, but certainly they did not bring this story to the attention of the reporter. You see, this “story” was known for a while by many local attorneys. The young prosecutor accuser sent a long email to a law professor about his views on the indigent’s representation in local courts. In the email, he blasts his fellow prosecutors for effectively dumping the DWI case for their own personal gain. His email did not mention the names of the prosecutors, but gave enough personal information about them to make them easily identifiable to anyone in the tight knit Collin County legal community.

WFAA’s story relates and shows that the “incident report spells out what happened next.” Smelling of alcohol and stepping off line during a walk and turn test. So the reporter has the incident report of the event. Where did the reporter get it? Witnesses aren’t given police reports and never went to court. The case is expunged and you cannot get the paperwork from the court or from open records. So it would seem that maybe young prosecutor gave it to the reporter? This prosecutor proclaimed in his email to the professor that he “got the file from the ‘disposed’ files and made sure that none of it was attributed to me. I made copies of the file.”

Under the law, the reporter of the story didn’t do anything wrong, but our hero young prosecutor accuser might want to study up on expunction laws:

55.04. Violation of Expunction Order

1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.

2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

Violation of an Expunction order is a Class B misdemeanor. Ironically enough, it the same level crime as the DWI in question. It would appear likely that the accusing young prosecutor may have committed the same level crime that he is complaining was not effectively prosecuted. I wonder if he would object if someone prosecuting him were to drop the case if they felt the evidence against him was shaky?

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Bill responds:

This weekend I re-posted a story broadcast by WFAA on an alleged "fix" of a DWI case out of Plano. WFAA's Brett Shipp told a story of a senior prosecutor at the Collin County DA's office who took a supposed ironclad case away from a junior assistant district attorney (ADA), and presented the case to a visiting judge without offering any evidence or witnesses, thereby assuring the defendant would be found not guilty.

The junior ADA was fired after the story came to light.

Since I posted this article I have received several emails from respected defense attorneys who warned me that the whole story had yet to come out. Every one of these defense attorneys spoke up for the Felony Division Chief Curtis Howard. Remember these are defense attorneys - they make their living defending accused in cases prosecuted by Mr. Howard and Ms. Walker.

This is an example of the comments I received:

"I think if you knew Curtis [Howard] and Kerrie [Walker], you’d know them trying to dump or cover up a DWI case is ridiculous. If anything, they are hardcore on the other end of the spectrum. Kerrie is a former Frisco PD officer who went to law school to become a prosecutor. Apparently she has her eye on the FBI. Does this sound like someone who is going to lay down on a criminal case?"

The "whistle blower" was a young and very green recent law school graduate. He was fired for more than just "whistle blowing". What caused his termination, I'm told, is that he wrote a letter to his law school professor, who then incorporated most of the original letter into an email the professor then sent to a wide distribution. By September, most defense attorneys in the county had seen it.

In his letter, the young ADA talks about disparate justice that is afforded to wealthy clients but not to indigents. He first levels charges that the Collin County DA's office takes advantage of defendants without lawyers. He then tells the story of the DWI to show how a good, paid lawyer could use the system in ways not available to the less wealthy suspect.

The writer than critiques the county's indigent defense system, accusing the local defense bar of often doing as little as possible to earn the low fees paid by the county.

The Collin County Observer will print the entire letter in the next few days. I hope it will spark some interesting discussion on the county's (and for that matter the nation's) ability to ensure equal justice for rich and poor.

In my comments on the WFAA report, I aimed most of my criticism at DA John Roach. I stand by my comments. The DA has not acted in a way that will reassure the citizens that the wheels of justice in Collin County are greased with fairness for all.

If, as Mr. Biederman implies, the evidence was not compelling enough for a conviction, the DA's own policies may have left Kerrie Walker with no choice but to either force a bench acquittal or got to trial with a weak case that would likely result in an innocent verdict. The current DA does not allow prosecutors to ask for a dismissal of DWI cases. He insists that all cases filed be prosecuted.

Added to the issue of the lack of ability to dismiss a weak case is the current practice by the DA's office of rating prosecutors by their number of jury trial convictions. Every week, each county prosecutor must turn in a report listing the number of jury trials heard and the number of convictions gained. The resulting numbers are a primary tool used to rate the performance of staff.

Bench trials, those decided by a judge, are not included in the reports.

Did Walker act in the best interests of the State and in the best interest of justice? That is the real question.... and one I don't think can resolved without a detailed review of both the evidence and of the District Attorney's policies.

John Roach should immediately request an independent review of this case by a trusted out of county jurist. If the State's attorneys and the defense lawyer acted improperly, then appropriate and severe penalties should be sought.

But, however, if their actions were in the pursuit of justice, then they must be exonerated as fully and thoroughly as was done for the defendant.

Bill