There’s no politics quite like Waco politics and this fall’s election is going to bring a whole new wave of intrigue. From afar, the race that fascinates me is the four-man contest for McLennan County district attorney.
It’s not a complete abstraction for me. Some of the prosecutors in the DA’s office and quite a few members of the local defense bar were my students when I taught at Baylor Law School from 2000-2010. Candidates Seth Sutton (a Democrat) and Daniel Hare (an independent) were both students at Baylor Law when I taught there and Republican incumbent Abel Reyna and I ran into each other quite a bit. I haven’t met the fourth candidate, Barry Johnson, also a Republican.
Of the four, only two, Reyna and Sutton, have experience in criminal law and only one — the incumbent — has been a prosecutor. It’s unusual for someone outside criminal law to even want the job of district attorney, but I am not arguing that any particular experience or lack thereof is disqualifying. Instead, I want to talk about the job they seek.
First, a caveat. My own experience as a prosecutor was far from Waco (in Detroit) in a different system (I was a federal prosecutor) and long ago (1995-2000). I’ve primarily been a teacher since then, but a teacher of criminal law who still keeps a hand in the game now and then. The advice I offer is nothing more than what I tell my students on the last day of criminal practice class, knowing they’re about to go out into jobs where lives and safety and freedoms and treasure will be determined by the choices they make.
Criminal law is all tragedy, every bit of it. The harsh truth is that even when we prosecutors do our job well, we cannot un-murder a child or un-rape a woman. The best we can hope for is to prevent some tragedy from occurring in the future. Winning a case is not like a civil trial, where money exchanges hands. In a criminal case, when you win, someone is deprived of his or her freedom, family and sometimes very life. Often that is a right and good outcome — it serves to protect us all — but it’s a somber moment to watch a man or woman taken off to prison.
Amidst all that tragedy, don’t count on much acclaim. When a prosecutor does his or her job well, it often goes unnoticed. It’s the jury who convicts, the judge who sentences. When we mess up, though, it’s on the front page. And about those front pages: A DA has a duty to deal with the public and the press. Being a public servant means being public, even when the times are hard. If you want high-fives from the public and the press, this isn’t the job for you because sometimes the right decision is not the popular one or easily explained. If you want what you do every day to matter, though, to affect the deepest fabric of society, then come on in.
This too: If you do the job right, you will end the day emotionally drained. If we care about these human stories, the ones inside every case file, there’s no other way. If you engage with the stories embedded in the cases — and you should — the personal toll of that tidal wash of tragedy is significant.
The fate of defendants and potential victims alike will rest in the decisions you make. And you will have a lot of decisions to make. Modern criminal law gives huge amounts of discretion to prosecutors: whether to accept a case, what to charge, who to indict, what bail to seek, what plea deal to offer, whether or not to enhance a case — all this and more will ultimately be your responsibility through the policies you set, the people you hire and the choices you make in individual cases.
Finally, this: When you talk about what you want to do with the office of district attorney, talk about how you will use your discretion to solve problems. Don’t be content to say that you will make cases or “shake things up” or be more conservative or liberal than anyone else. Instead, tell people how you will solve problems: opiate abuse or theft or sexual assaults. It is in the power of prosecutors to do that, sometimes, by changing the economics of crime or targeting the most culpable. It’s also in the power of prosecutors to not solve problems but rather to just make cases, incarcerating kingpin and underling alike. You can avert tragedies, but you can also compound them.
The reason to solve problems rather than just fill jails is compelling. As district attorney you will be entrusted with lives and money. That money is earned by hard-working people who pay taxes, and the lives are those of the innocent and the guilty, the victim and the person who may become one. You seek a deep and subtle power; speak of it with the respect it deserves.