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If there was any doubt about which segment of the criminal bar the four-day continuing legal education seminar was meant for, all anyone had to do was consider the title: “Capital Trial Advocacy — The Defense.” But on Jan. 26, the first day of the event, numerous criminal defense attorneys attending that Plano, Texas, seminar were hopping mad when they discovered a prosecutor in their midst at the program put on by the Center for American and International Law. The prosecutor, Stephen Tittle, a Hunt County, Texas, assistant district attorney, initially was told the seminar was full. But on Jan. 26, with the permission of the person at the registration desk, Tittle gained entry by taking the spot of a defense attorney who was unable to attend the seminar, says Tittle’s boss, Hunt County District Attorney Duncan Thomas. Tittle declines to comment, instead referring all questions about the incident to Thomas. On Jan. 27, Tittle was asked to leave the seminar, Thomas says. But Tittle had good reason to be there, Thomas maintains; Tittle attended the seminar as a way to prepare for some of the 10 capital murder cases pending in Hunt County. The incident has touched off a controversy over who should and shouldn’t be allowed to attend criminal law CLE courses funded in part by state money. Allowing prosecutors to attend programs meant for criminal defense attorneys is a big problem, says Philip Wischkaemper, capital-assistance attorney for the Texas Criminal Defense Lawyers Association, who spoke at the seminar. “We have speakers that won’t even show up if they know that there [are] prosecutors there,” Wischkaemper says. “That’s a real concern for us, because some people feel that they are giving out proprietary information that we [defense attorneys] don’t want to give to prosecutors.” Thomas says he’s equally troubled that his assistant DA was thrown out of a seminar funded by public money. He says Tittle did nothing wrong and recounts the incident this way: “Steve Tittle sent his form in, and when they found out that he was a prosecutor, they said it was full.” Tittle sought and received the permission of a defense attorney who was not attending the seminar to pick up the course materials, Thomas says. When Tittle showed up at the event and went over to pick up the course materials, he asked the person at the registration desk if he could attend the seminar in the place of the absent criminal defense attorney, Thomas says. “And they said ‘sure,’” Thomas says. No one asked him if he was a prosecutor, Thomas adds. Later on the first day of the seminar, several criminal defense attorneys recognized Tittle as a prosecutor, Thomas says. On Jan. 27, seminar officials “took it upon themselves to unprofessionally and, I believe, wrongly throw him out of the seminar,” Thomas says. “There’s nothing that said that any segment of the bar was to be excluded,” Thomas says of the seminar materials. “And it seems to me that because this seminar is funded by the Court of Criminal Appeals, any licensed attorney should be able to attend.” Mark Smith, vice president of the Center for American and International Law, confirms that Tittle was asked to leave but declines to comment about the specifics of the incident. “We’ve been asked to do a report to the Court of Criminal Appeals” by the court’s grants committee, Smith says. And whether anything inappropriate occurred at the seminar is “for the court to determine.” IN OR OUT? CCA Judge Barbara Hervey, who chairs the court’s grant committee that provided funds for the program, says this is the first she has heard of a controversy arising over which side of the criminal bar can attend a CLE seminar. “Traditionally, you just don’t have one side going to the other’s ” seminar, Hervey says. “ We’ve just not seen this problem before.” Months before the January program, officials at the Center for American and International Law asked the CCA’s grant committee for a special request, Hervey says. They wanted approval to discuss trial strategy on specific pending cases — a request the grant committee approved, Hervey says. “If you’re going to discuss specific trial strategy, you don’t want the other side there,” Hervey says. “I can understand that.” But the question about whether prosecutors could attend the seminar never came up in the grant committee meeting, she says. “It didn’t mean that they could exclude people. Frankly, we didn’t discuss people [being excluded], because we didn’t know that it would come up,” Hervey says. “We’re going to have to examine that policy, what we’re going to do about that.” Diane Beckham, senior staff counsel for the Texas District and County Attorneys Association, says her group does not exclude criminal defense attorneys from attending its CLE courses. In fact, criminal defense attorneys sometimes attend annual TDCAA seminars that delve into topics such as criminal law legislative updates. “In the eight years I’ve been here, we’ve never prohibited a defense lawyer from coming to one of our conferences,” Beckham says. “Part of it is because it’s a philosophical deal,” Beckham says. “Because we’re the state, we don’t want to act like we have anything to hide.” Although the program was not aimed at prosecutors, there was plenty to be learned from the seminar, Thomas says. “Part of our job is to anticipate defenses,” he says. And defense strategies are evolving in light of recent U.S. Supreme Court opinions such as Wiggins v. Smith, a 2003 decision that requires criminal defense attorneys to delve into mitigation evidence in death penalty cases. “In light of Wiggins … we need to find out what’s going to be involved in mitigation in terms of capital murders,” Thomas says. John Niland, a lawyer with the Texas Defender Service, which represents capital-murder defendants, led a discussion about mitigation defenses at the January seminar. “I have a lot of work product that I have developed for defense lawyers that [Tittle] had access to,” Niland says. “And I feel that was meant to be confidential between defense lawyers on the morning he was there. And I think it takes on particular significance, because his county has [several] pending capital murders.” But, as a practical matter, the capital murder seminar “is not the way to get prosecutors up to speed,” Niland says of Thomas’ assertions. “And if he believes that,” Niland says, “it raises a question as to whether they should be seeking death in the first place.”

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