'You Fight for Your Side'
Texas attorneys who switched from prosecution to defense talk about what stays the same: getting the job done
Published in 2021 Texas Rising Stars magazine
By Alison Macor on March 23, 2021
Former Travis County prosecutor Rick Flores was up for a promotion to the district attorney’s office when he decided it was time for a change. Switching sides had been at the back of his mind for a while. “I had a lot of people reaching out to me,” he says—including friends and their roommates who would call when they found themselves in trouble. “I’m not the person you want,” he would joke. “I’m the guy trying to put you in jail.”
But Flores began to realize the opportunity was twofold: He could help others and make more money. “When I was a prosecutor, I found out a lot of people had just made mistakes and didn’t deserve to be convicted or even prosecuted,” says the Austin criminal defense attorney. “I found myself drawn to help people who had made mistakes.”
We spoke with Flores and five other Texas criminal defense attorneys who cut their teeth as prosecutors. Their verdict? The experience was invaluable.
Tom Kelley, The Gertz Kelley Law Firm, Beaumont; Orange County District Attorney’s Office (2012-2016): Three of my grandparents were service members in World War II. My dad was in the Army during Vietnam. And my mother was a teacher for 42 years. It was just understood that you found a way to use whatever God gave you to serve others.
Rick Flores, Minton, Bassett, Flores & Carsey, Austin; Travis County Attorney’s Office (2008-2011): My dad did municipal law and bankruptcy law. Part of my wanting to go to law school was growing up and hearing my dad talk about cases. But he wasn’t a “TV lawyer”—he wasn’t in court—and the trial part always did appeal to me, especially once I started getting involved with mock trial as an undergraduate at the University of Texas.
Michael J. Rogers Jr., Rogers & Greehey, Edinburg; Bexar County Criminal District Attorney’s Office (2016-2019): My father and I had conversations about becoming a lawyer since I was young. I don’t know if it was my dad wishing he had done that, but the conversations were always: Be an attorney, then be a judge, then go write books. All I ever got to was: Be a lawyer. In middle school [I was] reading John Grisham books.
Angel Mata, The Law Office of Angel Mata, Dallas; McLennan County District Attorney’s Office (2009-2011), Dallas County District Attorney’s Office (2011-2013): I grew up in Pleasant Grove in Southeast Dallas. I moved out of my parents’ house in high school. My big brother ended up going to prison for manslaughter. My little brother was a victim of a crime. When you live in a neighborhood like that, murder, robbery—it’s commonplace. I was 19 and about to start UT-Arlington, and I wanted to be an interior designer. My little brother’s friend had lived with us since he was 13 years old. He was accused of murder when he was 17. I thought he was innocent. I saw there was nobody to help him. I found his dad and convinced him to pay for an attorney. I sat in the back of the courtroom in a little suit I had bought. I had a notepad and took notes. I was probably the most annoying person ever. Every time there was a break, I’d go to the attorney and say, “Ask this question.” He went to trial on murder. In the end, he was convicted of manslaughter, and given 15 years in prison. Like a lightbulb [going off], I decided to be an attorney. Nobody in my family had ever gone to college. I thought Yale University was in Dallas, because there was a street named Yale Boulevard by SMU.
Melinda Lehmann, Law Office of Melinda Lehmann, Arlington; Dallas County District Attorney’s Office (2008-2014): In high school, I knew I wanted to pursue a career in law. I was motivated by a desire to help the underdog. I wanted to be someone who could advocate for people like single mothers, people of color—give them a voice, see their suffering and acknowledge it.
Leslie Rebescher, Walker & Taylor, Houston; Galveston County District Attorney’s Office (2015-2018): My uncle is a criminal defense attorney and was a prosecutor when he was younger. I was in high school, and he would take me to court with him, and it was just fascinating to me. Two of his three kids went to law school as well. My uncle advised me to go to the DA’s office.
Kelley: A job opened in Orange County, and the only familiarity I had with Orange was that NFL safety and former Longhorn Earl Thomas was from West Orange-Stark High School. I’d never been past Beaumont.
Mata: Michael Smith, the attorney for my brother’s friend, told me he was a prosecutor first, so I said, “I’m going to do that, too.” When I got out of law school, there was a hiring freeze at the DA’s office in Dallas. I heard they were hiring in Waco, in McLennan County. I stayed there for about a year and a half. Dallas finally started hiring.
Flores: During law school, I met a prosecutor named John Lipscombe, who is now a judge. He took me under his wing and introduced me to David Escamilla, the Travis County attorney.
Rebescher: I interned at the DA’s office in Galveston all three summers of law school before starting there after graduation. To be surrounded by people talking about law all day was eye-opening.
Lehmann: In Dallas at the DA’s office, you traditionally start in the misdemeanor division. All of the prosecutors are assigned to a court office together in the same small room, approximately 750 square feet, where you work together for at least eight hours a day. It’s difficult to say what my average caseload was, but when I was in felony court I had at least 130 to 150 cases at a time.
Mata: In misdemeanor court, I had a few hundred cases at one time; in felony court, around 130. You don’t have the time to really work [misdemeanor] cases, contact the victims, get them restitution and be prepared for trial. You interview your witnesses during lunch.
Kelley: Because Orange was a smaller county, I tried everything. After two years as a misdemeanor prosecutor, I got promoted to felony. I probably had 250 or 300 cases pending at one time. I was the only prosecutor, so if a drug case came in, I got [it]. A gruesome murder, an animal cruelty case—everything comes back to you.
Rebescher: I probably had 250 to 300 cases at any time. I was the animal cruelty prosecutor for a moment, and prosecuted a few child sexual-assault cases. I would go to my car at lunchtime during trial and just cry.
Rogers: There are 15 courts in Bexar. Thirteen are criminal courts, two are civil. Usually you start in misdemeanor intake, then start working your way up into misdemeanor court and maybe a promotion to felony. The longstanding DA had just lost the election a year or two earlier, so there was a lot of turnover. I went directly to misdemeanor court, where I had from 75 to 100 cases per week.
Memorable Cases as Prosecutors
Mata: I messed up my first felony trial. It was a disaster, but it was a really good learning experience. I worked my way up to felony court in Dallas, and received a case that had already been prepared for trial three or four times. The case was aggravated robbery, and the recommendation was 20 years. He was 19, and he’d been in jail for a year. The week before trial, I started to realize there were holes in the case. The officers who worked the case hadn’t done a good job. Statements in the police report didn’t match the photos of the lineup. We’re watching the video of the photo lineup. I notice something’s not right. On the back of each photo, there’s a number and a signature. I flip over suspect #3’s photo, and the signature doesn’t match the defendant. I look at the defendant, and I realize it’s not him. It turns out the victim never picked [the defendant] out of the lineup. She picked out a completely different person. I could lose my job; I could have sent an innocent person to prison. He got out of jail that day. I was mad at myself for relying on someone else’s work before mine. Luckily, the defense attorney didn’t make a Brady violation. Two months later, the attorney came to me and told me the kid was back in jail. It’s good to know justice was served, but at the end of the day, it comes down to: Do your job.
Rebescher: I had a woman who was supposed to plead to a theft charge, and she was going to be let go that day. All she had to do was plea. On her way into the courthouse, she had to go through security; she stole an item from the security line and got re-arrested.
Rogers: One family violence case sticks out. They had residency but were not U.S. citizens. They didn’t speak English well. She was abused at home. We offered the defendant a pre-trial diversion because he had no criminal history. He rejected that, so we went to trial. The entire process involved the victim being on the stand, my asking her a question, the translator interpreting, the court-appointed attorney—who seemed like he was more on the defense’s side—talking to her in Iraqi, and then she would say, “I plead the Fifth.” She would say she forgot the question, and we would have to start all over again. But we ended up getting a guilty verdict.
Flores: A lot of the other prosecutors at the time didn’t want to handle the animal cruelty cases, so they landed on my desk. One of the things you have to do is compartmentalize the case and realize it isn’t your dog, it isn’t your cat. As horrible as the allegations may be, you have to put any personal feelings out of the way.
Kelley: One of the last cases I tried to a jury, I represented the state, obviously, but I also considered myself representing the victim. She was a 2-year-old who had been assaulted by her father in the most gruesome way. There were some alternate theories of how she could have suffered her injuries, which the defense presented, but as far as I was concerned, there wasn’t any question. The jury agreed. Those cases, even when they’re over, they stick with you forever.
Lehmann: I felt like I did really good work when I prosecuted family violence cases. One case was a super agg: aggravated assault with a deadly weapon resulting in serious bodily injury. The complainant was pregnant at the time. She was a very sweet woman who I could tell no one had ever stood up for. She surely never stood up for herself. She was abused constantly in very bad ways: He would impede her breathing, strangle her regularly. I remember seeing a shift in her self-perception. We eventually went to jury trial, and we won. I could see how she started to value herself when she saw that someone was willing to fight for her, and that 12 people from her community were willing to acknowledge what had happened to her.
Making the Switch
Rogers: My dad’s health was failing, so I was looking for flexibility to travel from San Antonio to the Valley to spend more time with him.
Lehmann: I knew there would come a point where I wouldn’t want to sit in a 750-square-foot room with two other adults for eight hours a day. I had a young daughter, and I wanted more freedom to do things with her. The timing seemed right.
Kelley: You start looking around the courtroom and wondering if you could be as effective on behalf of people. When you’re a prosecutor, that chair next to you is always empty. When you become a defense attorney, there’s always a person sitting next to you who’s counting on you.
Rebescher: I’d become second in line to the chief felony prosecutor, and the chiefs there were younger, so they weren’t going to leave any time soon. For the time being I’d hit a glass ceiling; three former colleagues from the DA’s office were at the firm where I am now.
Mata: My chief was a career prosecutor. In misdemeanor court in Dallas, I was known for giving harsh punishments. But in felony court, I was known for giving more lenient punishments. My chief didn’t like it. He wanted me to prosecute somebody I didn’t want to prosecute. I couldn’t tell him no, so I quit. People were really surprised. Nobody thought I was ever going to do defense, unless they were my close friends, because I was extremely state-oriented. Which is the way you should be—that’s your job.
Memorable Cases on the Defense
Flores: I handled a case in Bell County as a criminal defense attorney. The man was 20 or so and accused of breaking into his ex-girlfriend’s home, pinning her down at knifepoint and trying to sexually assault her, then carving an “X” on her chest. It was a first-degree felony and could lead to 99 years in prison. I wanted to hear him out but also figured, like most of the time when you’ve been arrested, there’s usually some evidence that rises to the level of probable cause. As I got to know him and his family, I realized he was telling the truth. Through the GPS locator on his phone and social media posts he made, we were able to prove he was 70 miles away. In the end, the ex-girlfriend admitted to cutting herself and staging the scene. The case got a lot of attention; it happened around the time of the #MeToo movement, and #BelieveAllWomen was trending. I don’t think you should believe anybody. You should investigate every case, every claim, every allegation.
Mata: As a defense attorney, I get a lot of family violence cases. I also get a lot of victims calling me. Other attorneys and people I know at the prosecutor’s office will refer victims to me because, if you’re the victim of a robbery, you’ll make the police report, but maybe you don’t get a call back. A lot of the victims come from poor neighborhoods. You may have a victim who has eyelashes out to here and nails out to there. I think a lot of prosecutors just don’t know how to connect with somebody like that. I feel like I can talk to them like human beings. The victims will come to me and I’ll walk them through the process. I’ll reach out to the prosecutor if I need to. I’ll usually do that for free, but if they want me to stay on until the case is resolved, I’ll charge a minimal fee.
Rebescher: My law firm focuses on Second Amendment laws. I go to crime scenes now. Someone has typically used a firearm in self-defense and there’s a victim, but they also took someone’s life. Helping them handle being the victim of whatever crime they were the victim of to use self-defense, and helping them with the fact they’ve taken someone’s life, that’s the hardest part of my job now.
That Public Experience
Mata: It’s very important to be a prosecutor first if you want to do defense, for the trial experience, plus you get the inside scoop as to how prosecutors work, how they think. You learn to wear different hats. I thought it would be really hard to send somebody to prison, but if you’re a good advocate, you do it. You fight for your side.
Lehmann: It’s trial by fire in the DA’s office, and that is the best way to learn to evaluate a case: learning what the community thinks about the evidence that you present.
Rogers: I am shy; it’s something I’ve had to work on. Part of the reason I went to the prosecutor’s office was to throw myself into the fire.
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