At the close of Monday’s session in the State vs. Rosemary Lehmberg removal trial, visiting Judge David Peeples asked Travis County litigator James Collins: “Are you asking me to predict the future?” Peeples’ question suggested that he’s not quite clear on just what the State is trying to prove.
On Tuesday, Peeples may get a little help. The State’s final witnesses will be Dr. Herbert C. Munden who apparently has reviewed Lehmberg’s case and – according to Collins – will testify that she is indeed “an alcoholic” in denial (a diagnosis not yet attested thus far by other clinicians who have treated Lehmberg). Munden will be followed by Lehmberg herself, in what promises, based on Monday’s testimony and the State's argument, to be an intense interrogation of Lehmberg’s virtually every private action since April 12.
In response to Peeples' puzzlement, Collins told the judge, “The core of our argument is that the Legislature has said a judge can remove a public official if a jury finds that he or she has been intoxicated.” No need for a jury – Lehmberg pled guilty and served her 45-day sentence. But Collins and his co-counsel, representing the State of Texas in the lawsuit filed by Travis County Attorney David Escamilla, spent most of Monday proving (1) that Lehmberg was indeed driving while intoxicated on April 12; (2) that she was non-compliant, combative, and threatening at the jail; (3) that despite her denials, she is or may be continuing to drink; and (4) that in their reading of the medical evidence, she is not complying with the rehabilitation treatment plan recommended by her doctors at the Arizona rehab clinic, Sierra Tucson.
Lehmberg’s attorney Daniel Richards responded briefly that Lehmberg has in fact done everything that her doctors have recommended that she do in recovery, but that she has not necessarily done everything “as quickly as the State would like her to.”
Monday afternoon was occupied with State’s case attempting suggest that the D.A. has a serious, ongoing drinking problem that she is failing to confront, and that she is not honestly pursuing recovery treatment prescribed for her by the doctors and therapists at Sierra Tucson. Her supervising psychiatrist, Dr. Michelle Sipp testified by video deposition, and said Lehmberg’s diagnosis was “alcohol abuse disorder, mild.” She said Lehmberg was a cooperative and engaged patient, and her prognosis for recovery was “excellent,” although it depends upon her continuing her treatment plan in Austin and maintaining a support network.
The State plans to conclude its case Tuesday (with Lehmberg's testimony), to be followed by two or three days of defense witnesses, perhaps to conclude by Friday.
Follow Newsdesk's coverage Tuesday on Twitter @PointAustin under the hashtag #LehmbergTrial.
The Monday morning report follows:
Travis County Attorney's chief litigator, James Collins, laid out in his opening statement "six factors" the State believes should convince Visiting Judge David Peeples that Lehmberg deserves removal: (1) the extent of her intoxication that night; (2) She “decided to commit crimes”; (3) her "almost unimaginable" bad behavior towards law enforcement officials; (4) her intoxication represents a pattern of conduct; (5) she has a pattern of lying about drinking and perhaps about other things “both in general and while under oath”; (6) She probably won’t stay sober in the future, because she has promised to follow treatment but has not done so, and has a pattern of lying about her drinking.
Lehmberg's attorney, Daniel Richards, in his opening statement, responded that the state is basing its argument on the single intoxication standard of the Local Government Code. If that's to hold, they had "better get busy," and start removing officials all over the county and state, to serve equal justice under the law. Many public officials have received DWIs, without any motion for removal, and there is no grounds for treating her differently. Lehmberg has a right to know what the law is, and what the consequences are: “Not a list of factors they’ve just made up.”
Richards said the Texas Constitutional standard is “habitual drunkenness,” and the Local Code dates from Prohibition. The true standard is habitual drunkenness, and no one is claiming that or has evidence of that. "Her continuance in office is in the public interest."
There have been five witnesses this morning: two drivers on Hwy 620 who made 911 calls after observing Lehmberg's Lexus driving erratically and dangerously, and three officers who dealt with Lehmberg either at the scene at St. Luke's Church the night of April 12 or at Central Booking in the Travis County Jail. All confirm she was "highly intoxicated" and "non-compliant" or combative, belligerent, and threatening that night, as has been widely reported and confirmed by the jail video. The State is trying to establish a pattern of conduct; Lehmberg's defense is attempting to lessen the impact but also to suggest this is a single incident and not a pattern of conduct.
Also reflected in testimony is that April 12 was an extremely lively night in Travis County and certainly the jail. There may have been another Lexus involved in a hit-and-run that night (an SUV, not Lehmberg's) as her sedan was not. And the drunken D.A. was hardly the most severe problem at the jail that night: just about the time she arrived or shortly thereafter, there were separate incidents of (1) a suicide attempt; (2) a seizure; (3) a psychotic breakdown; (4) an assault by one prisoner upon another. A drunken district attorney was the icing on the cake. Just another Saturday night in Travis County.
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